[Federal Register Volume 59, Number 158 (Wednesday, August 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20078]


[[Page Unknown]]

[Federal Register: August 17, 1994]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[FRA Docket No. RSOR 13, Notice No. 1]
RIN 2130-AA86

 

Roadway Worker Protection

AGENCY: Federal Railroad Administration (FRA); DOT.

ACTION: Notice of Proposal to Form a Negotiated Rulemaking Advisory 
Committee and Request for Representation.

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SUMMARY: FRA proposes to establish a Negotiated Rulemaking Advisory 
Committee under the Negotiated Rulemaking Act of 1990 and the Federal 
Advisory Committee Act to develop a recommended rule concerning the 
protection of railroad roadway workers. The Committee would adopt its 
recommendations through a negotiation process. The Committee would be 
composed of persons who represent the interests affected by the rule, 
such as labor organizations, railroads, railroad associations, 
contractor associations, and the government. FRA invites interested 
parties to submit nominations and applications for membership on the 
Committee.

DATES: FRA must receive written comments and requests for 
representation or membership by September 16, 1994.

ADDRESSES: All written comments should be submitted in triplicate to 
the Docket Clerk, Office of Chief Counsel, FRA, 400 Seventh Street, 
S.W., Room 8201, Washington, D. C. 20590.

FOR FURTHER INFORMATION CONTACT: Christine Beyer, Trial Attorney, 
Office of Chief Counsel, FRA, 400 Seventh Street, S.W., Room 8201, 
Washington, D. C. 20590 (Telephone: 202-366-0621).

SUPPLEMENTARY INFORMATION:

I. Background

(A) History

    The Rail Safety Enforcement and Review Act, Pub.L. No. 102-365, 106 
Stat. 972, enacted September 3, 1992, required FRA to review its track 
safety standards and revise them based on data presented during that 
review. Among the topics to be addressed was ``an evaluation of 
employee safety.'' FRA issued an Advance Notice of Proposed Rulemaking 
(ANPRM) on November 16, 1992 (57 FR 54038) to announce the opening of a 
proceeding to amend the Federal Track Safety Standards (49 CFR Part 
213). That ANPRM addressed the general topics to be considered, 
including standards for railroad track itself, and protecting 
maintenance-of-way and other non-operating railroad employees from the 
hazards of moving railroad equipment.
    As part of that proceeding, FRA conducted a series of workshops to 
obtain the industry's views on the need for and substance of any 
changes to FRA's regulations. One such workshop session, announced in 
Notice No. 4 of that ANPRM issued on February 18, 1993 (58 FR 8928), 
and held in Washington, D.C. on March 31, 1993 addressed specifically 
the issue of protection of roadway workers from being struck by moving 
trains and equipment. Since that workshop, FRA has received petitions 
for emergency orders and rulemaking on the topic from the Brotherhood 
of Maintenance-of-Way Employees and the Brotherhood of Railroad 
Signalmen.
    FRA originally planned to include protection from moving trains and 
moving equipment into a new Subpart G of 49 CFR Part 213, but it will 
now be considered as part of 49 CFR Part 214, Railroad Workplace 
Safety. Given FRA's desire to address this issue on an expedited basis, 
and because it relates more closely to workplace safety than to track 
standards, this proceeding is now separated from FRA Docket No. RST-90-
1 and has been placed in FRA Docket No. RSOR 13. Items related to this 
subject which were submitted as part of Docket No. RST-90-1 will be 
considered as part of this proceeding, as will the transcript of the 
public workshop on March 31, 1993.

(B) Purpose

    FRA is taking this action for the purpose of reducing the risk of 
death or injury railroad roadway workers face when struck by moving 
trains and railroad equipment. Since 1989, 21 roadway workers have been 
fatally injured by moving trains and equipment. Eight workers were 
struck by trains while performing work, three were struck by trains on 
track adjacent to the work location, five stepped into a train's path, 
and five were struck by maintenance-of-way equipment. These fatalities 
are among the following crafts: signal maintainers, machine operators, 
welders, track foremen, track inspectors, and track laborers.
    These figures reflect a serious problem that may require changes in 
railroad operating rules, training and practices. In order to address 
the problem in the short term, FRA Administrator Molitoris convened a 
meeting on June 3, 1994 at which FRA distributed summaries of the 
fatalities, and enlisted the support of the industry to address the 
issue immediately on each railroad through local labor/management 
committees. FRA also discussed the option of proceeding with a 
negotiated rulemaking, and has since preliminarily concluded that this 
issue is an appropriate subject for negotiated rulemaking.

(C) Terminology

    FRA proposes that the term ``roadway worker'' rather than 
``maintenance of way employee'' be used in this proceeding to define 
the subject persons. This term would encompass all employees of a 
railroad or a contractor to a railroad who construct, maintain, inspect 
or repair railroad tracks, structures, signal and train control 
systems, communication systems, utility systems, or any other fixed 
property of a railroad while in close or potentially close proximity to 
tracks on which trains or equipment can be operated. The term would 
apply regardless of the craft or class title of the employee, 
affiliation with any labor organization, or rank within the railroad 
organization. Examples of subject persons would be trackmen, signal 
maintainers, bridge workers, communication technicians, electricians, 
surveyors, roadmasters and chief engineers, while performing their 
duties along the line of road.
    FRA believes that extensive input from all interested parties is 
necessary to develop a rule that will address both the risk of injury 
from moving railroad equipment and the operational concerns that this 
issue presents. Therefore, this notice announces FRA's proposal to 
address these issues through a negotiated rulemaking.
    Set forth below are the basic concepts of negotiated rulemaking, 
suggested procedures to be followed, and criteria for participant 
selection. In order to begin this process shortly, FRA asks that 
parties representing interests affected by a roadway worker safety rule 
request appointment or representation on the Committee within thirty 
days of publication of this notice.

II. Regulatory Negotiation

    Due to the increasing complexity and formalization of the written 
rulemaking process, it can be difficult for an agency to craft 
effective regulatory solutions to certain problems. In the typical 
rulemaking process, the participants often develop adversarial 
relationships that prevent effective communication and creative 
solutions. The exchange of ideas that may lead to solutions acceptable 
to all interested groups often does not occur in the traditional notice 
and comment system. As the Administrative Conference of the United 
States (ACUS) noted in its Recommendation 82-4:

    Experience indicates that if the parties in interest were to 
work together to negotiate the text of a proposed rule, they might 
be able in some circumstances to identify the major issues, gauge 
their importance to the respective parties, identify the information 
and data necessary to resolve the issues, and develop a rule that is 
acceptable to the respective interests, all within the contours of 
the substantive statute.

    ACUS adopted this recommendation in ``Procedures for Negotiating 
Proposed Regulations,'' 47 FR 30708, June 18, 1982. The thrust of the 
recommendation is that representatives of all interests should be 
assembled to discuss the issue or hazard and all potential solutions, 
reach consensus, and prepare a proposed rule for consideration by the 
agency. After public comment on any proposal issued by the agency, the 
group would reconvene to review the comments and make recommendations 
for a final rule. This inclusive process is intended to make the rule 
more acceptable to all affected interests and prevent the need for 
petitions for reconsideration and litigation that often follow 
promulgation of a final rule.
    The movement toward negotiated rulemaking gained impetus with 
enactment of the Negotiated Rulemaking Act of 1990 (Reg-Neg), 5 U.S.C. 
Sec. 561, et seq. More recently, President Clinton issued Executive 
Order 12866 (EO) (58 FR 51735, October 4, 1993), which states the need 
to reform the current regulatory process into one that is effective, 
consistent, and understandable. The objectives of the EO are:

    To reaffirm the primacy of Federal agencies in the regulatory 
decision-making process; to restore the integrity and legitimacy of 
regulatory review and oversight; and to make the process more 
accessible and open to the public.

Id. Section 6(a) of the EO charges government agencies with providing 
the public meaningful participation in the regulatory process:

    In particular, before issuing a notice of proposed rulemaking, 
each agency should, where appropriate, seek the involvement of those 
who are intended to benefit from and those expected to be burdened 
by any regulation . . . Each agency is also directed to explore and, 
where appropriate, use consensual mechanisms for developing 
regulations, including negotiated rulemaking.

Id. at 51740.
    Although relatively new, negotiated rulemakings have been used 
successfully by many regulatory agencies, including the Federal 
Aviation Administration, the United States Coast Guard, the 
Environmental Protection Agency, and the Occupational Safety and Health 
Administration. FRA now intends to begin this process in a formalized 
manner for the first time, and does so with enthusiasm and high 
expectations. FRA welcomes the opportunity to work with those who will 
be affected directly by a roadway worker safety rule, and is confident 
that the agency and the industry will benefit from the process by 
creating an effective and reasonable regulation.
    Pursuant to section 563(a) of Reg-Neg, an agency considering 
rulemaking by negotiation should consider whether:

    (1) There is a need for the rule;
    (2) There is a limited number of identifiable interests;
    (3) These interests can be adequately represented by persons 
willing to negotiate in good faith to reach a consensus;
    (4) There is a reasonable likelihood that the committee will 
reach consensus within a fixed period of time;
    (5) The negotiated rulemaking procedure will not unreasonably 
delay the notice of proposed rulemaking;
    (6) the agency has adequate resources and is willing to commit 
such resources to the process; and
    (7) The agency is committed to use the result of the negotiation 
in formulating a proposed rule if at all possible.
    For the reasons stated in this Notice, FRA believes that these 
criteria have been met with respect to railroad roadway safety issues.
    The regulatory negotiation FRA proposes would be carried out by an 
advisory committee (Committee) created under the Federal Advisory 
Committee Act (FACA), as amended, 5 U.S.C. App., and in a manner that 
reflects appropriate rulemaking objectives, including pertinent 
Executive Orders. FRA will be represented on the Committee and will 
take an active part in the negotiations as a Committee member. However, 
pursuant to section 566(c) of Reg-Neg, the person(s) designated to 
represent FRA would not facilitate or otherwise chair the proceedings. 
The agency is committed to this process and is quite optimistic that it 
will result in the issuance of an NPRM and final rule that will be 
acceptable to the members of the Committee. Because of the need to 
issue a rule on this subject, FRA is prepared to go forward with an 
NPRM that is not the product of the negotiations in the unlikely event 
the negotiation fails or if the Committee's recommendation is not 
acceptable.

III. Procedures and Guidelines

    The following proposed procedures and guidelines would apply to 
this process, subject to appropriate changes made as a result of 
comments received on this Notice or as are determined to be necessary 
during the negotiating process.
    (A) Facilitator: FRA is seeking the services of a facilitator for 
the negotiating group. The facilitator will not be involved with 
substantive development of this regulation. This individual will chair 
the negotiations, may offer alternative suggestions toward the desired 
consensus, will help participants define and reach consensus, and will 
determine the feasibility of negotiating particular issues. The 
facilitator may ask members to submit additional information or to 
reconsider their position. FRA will contact mediation organizations for 
potential candidates, and will consider nominations made in comments 
received in response to this Notice.
    (B) Feasibility: FRA has examined the issues and interests involved 
and has made a preliminary inquiry among representatives of those 
interests to determine whether it is possible to reach agreement on: 
(a) individuals to represent those interests; (b) the preliminary scope 
of the issues to be addressed; and (c) a schedule for developing a 
notice of proposed rulemaking. On the basis of the history of this 
issue and our preliminary inquiry, we believe that regulatory 
negotiation could be successful in developing a workable proposal for a 
notice of proposed rulemaking and a final rule, and that the potential 
participants listed below would adequately represent the affected 
interests.
    (C) Participants and Interests: The number of committee 
participants generally should not exceed 25.
    Please note that each individual or organization affected by a 
final rule need not have its own representative on the Committee. 
Rather, each interest must be adequately represented, and the Committee 
should be fairly balanced. Individuals who are not part of the 
Committee may attend sessions and confer with or provide their views to 
Committee members.
    The following interests have been tentatively identified as those 
that are likely to be significantly affected by the rule:
    (1) Railroad labor organizations;
    (2) Railroads, including classes 1 through 3, the short lines, 
public transit operations, and their associations;
    (3) Contractors to railroads who perform roadway work; and
    (4) The Federal government.
    FRA proposes that persons selected by the various interests be 
named to the Committee. The following interests have been tentatively 
identified as those that would supply Committee members:
    (1) The Brotherhood of Maintenance-of-Way Employes;
    (2) The Brotherhood of Railroad Signalmen;
    (3) The American Train Dispatchers Association;
    (4) The Association of American Railroads;
    (5) The American Short Line Railroad Association;
    (6) American Public Transit Association; and
    (7) FRA.
    As indicated in paragraph F of this notice, FRA invites 
applications for representation from any interests that will be 
affected by a rule, but are not named in this list. FRA is committed to 
an open and comprehensive negotiation, and therefore strongly 
encourages any such party to file an application for membership. These 
applications may come from railroads, labor organizations, 
associations, or other interests, must be filed within thirty days, and 
must meet the requirements set forth in this notice. Also, the 
interests listed above and those who apply for representation on the 
Committee should provide the name(s) of the individual(s) they propose 
to represent their interests. The Committee should not exceed twenty-
five members.
    (D) Good Faith: Participants must be committed to negotiate in good 
faith. It is therefore important that senior individuals within each 
interest group be designated to represent that interest. No individual 
will be required to ``bind'' the interests he or she represents, but 
the individual should be at a high enough level to represent the 
interest with confidence. For this process to be successful, the 
interests represented should be willing to accept the final Committee 
product.
    (E) Notice of Intent to Establish Advisory Committee and Request 
for Comment: In accordance with the requirements of FACA, an agency of 
the Federal government cannot establish or utilize a group of people in 
the interest of obtaining consensus advice or recommendations unless 
that group is chartered as a Federal advisory committee. It is the 
purpose of this Notice to indicate our intent to create a Federal 
advisory committee, to identify the issues involved in the rulemaking, 
to identify the interests affected by the rulemaking, to identify 
potential participants who will adequately represent those interests, 
and to ask for comment on the use of regulatory negotiation and on the 
identification of the issues, interests, procedures, and participants.
    (F) Requests for Representation: One purpose of this Notice is to 
determine whether interests exist that may be substantially affected by 
a rule, but have not been represented in the list of prospective 
Committee members. Please identify such interests if they exist. Each 
application for membership or nomination to the Committee should 
include: (i) the name of the applicant or nominee and the interests 
such person would represent; (ii) evidence that the applicant or 
nominee is authorized to represent parties related to the interests the 
person proposes to represent; (iii) a written commitment that the 
applicant or nominee would participate in good faith; and (iv) the 
reasons any representative identified in the Notice does not represent 
the interests the nominee is alleged to represent. If an additional 
person or interest requests membership or representation on the 
Committee, FRA shall determine (i) whether that interest will be 
substantially affected by the rule, (ii) if such interest would be 
adequately represented by an individual already on the Committee, and 
(iii) whether the requester should be added to the group or whether 
interests can be consolidated to provide adequate representation.
    (G) Final Notice: After evaluating comments received as a result of 
this notice, FRA will issue a final notice announcing the establishment 
of the Federal advisory committee, unless it determines that such 
action is inappropriate in light of comments received, and the 
composition of the Committee. After the Committee is chartered the 
negotiations would begin.
    (H) Administrative Support and Meetings: Staff support would be 
provided by FRA and meetings would take place in Washington, D.C., 
unless agreed otherwise by the Committee.
    (I) Tentative Schedule: If the Committee is established and 
selected, FRA will publish a schedule for the first meeting in the 
Federal Register. The first meeting will focus on procedural matters, 
including dates, times, and locations of future meetings. Notice of 
subsequent meetings would also be published in the Federal Register 
before being held.
    FRA expects that the Committee would reach consensus and prepare a 
report recommending a proposed rule within six months of the first 
meeting. However, if unforeseen delays occur, the Administrator may 
agree to an extension of that time if a consensus of the Committee 
believes that additional time will result in agreement. The process may 
end earlier if the facilitator so recommends.
    (J) Committee Procedures: Under the general guidance of the 
facilitator, and subject to legal requirements, the Committee would 
establish the detailed procedures for meetings which it considers 
appropriate.
    (K) Record of Meetings: In accordance with FACA's requirements, FRA 
would keep a record of all Committee meetings. This record would be 
placed in the public docket for this rulemaking. Meetings of the 
Committee would generally be open to the public.
    (L) Consensus: The goal of the negotiating process is consensus. 
FRA proposes that the Committee would develop its own definition of 
consensus, which may include unanimity, a simple majority, or 
substantial agreement such that no member will disapprove the final 
recommendation of the Committee. However, if the Committee does not 
develop its own definition, consensus shall be unanimous concurrence.
    (M) Notice of Proposed Rulemaking and Final Rule: The Committee's 
first objective is to prepare a report containing a notice of proposed 
rulemaking, preamble, and economic evalutation. If consensus is not 
obtained on some issues, the report should identify the areas of 
agreement and disagreement, and explanations for any disagreement. It 
is expected that participants will address cost/benefit, paperwork 
reduction, and regulatory flexibility requirements. FRA would prepare 
an economic assessment if appropriate.
    FRA would issue the proposed rule as prepared by the Committee 
unless it is inconsistent with statutory authority of the agency or 
other legal requirements or does not, in the agency's view, adequately 
address the subject matter. If that occurs, FRA would explain the 
reasons for its decision, or would modify the proposal in a way that 
allows the public to distinguish modifications from the original 
proposal.
    The Committee would reconvene to review comments received in 
response to publication of the proposed rule and would negotiate to 
produce a recommended final rule. FRA would issue the recommended final 
rule as prepared by the Committee unless it is inconsistent with 
statutory authority of the agency or other legal requirements or does 
not, in the agency's view, adequately address the subject matter. If 
that occurs, FRA would explain the reasons for its decision, or would 
modify the recommended final rule in a way that allows the public to 
distinguish modifications from the recommended final rule.
    (N) Key Issues for Negotiation: FRA has reviewed correspondence, 
petitions, injury data, existing railroad operating practices, and has 
engaged in extensive dialogue concerning the protection of roadway 
workers. Based on this information and rulemaking requirements, FRA has 
tentatively identified major issues that should be considered in this 
negotiated rulemaking. Other issues related to roadway protection not 
specifically listed in this Notice may be addressed as they arise in 
the course of the negotiation. Comments are invited concerning the 
appropriateness of these issues for consideration and whether other 
issues should be added.
    1. Are devices available that may be used to reduce the risk of 
danger to roadway workers? If so, how do these devices work and what 
are the costs associated with them?
    2. Are there appropriate procedures or operating practices that may 
be instituted effectively to reduce the risk of danger to roadway 
workers? If so, what are the costs that will be associated with 
implementing these practices and procedures?
    3. Are there appropriate training programs that may be given to 
reduce the risk of danger to roadway workers? If so, at what intervals 
should they be taught? Also, what are the costs and the time associated 
with such a program?
    4. Are there peculiar topographical, environmental, and operational 
conditions that must be considered in developing a program to reduce 
the risk of harm to roadway workers? What are the specific conditions, 
and how do they vary from one region to another, and from one railroad 
to another? What would the cost for this program be?
    5. Should any program developed vary according to the size of a 
railroad? If so, explain why such variations are necessary and how the 
programs should differ.
    6. What recordkeeping and reporting requirements, if any, should be 
instituted to advance the safety of roadway workers? What is the amount 
of time and cost involved with these requirements?
    7. What enforcement procedures should FRA utilize to ensure 
compliance with any rule developed?
    8. Aside from the obvious benefit of providing safer working 
conditions and so reducing the risk of injury and death for roadway 
workers, are there additional benefits (both monetary and non-monetary) 
that will result from the implementation of a rule concerning roadway 
workers?
    9. Do any railroads currently have internal operating practices 
that address the intended purposes of this negotiated rulemaking? If 
so, please provide the background for implementation of these 
practices, and a description of their effectiveness. Also, what were 
the costs and benefits associated with implementing these practices?

IV. Public Participation

    FRA invites comments on all issues, procedures, guidelines, 
interests, and suggested participants embodied in this Notice. All 
comments and requests for participation should be submitted to the 
Docket Clerk, Office of Chief Counsel, FRA, 400 Seventh Street, SW., 
Room 8201, Washington, DC 20590.

    Issued this 11th day of August 1994.
Jolene M. Molitoris,
Administrator.
[FR Doc. 94-20078 Filed 8-16-94; 8:45 am]
BILLING CODE 4910-06-P