[Federal Register Volume 60, Number 3 (Thursday, January 5, 1995)]
[Proposed Rules]
[Pages 1761-1764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-201]



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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[FRA Docket No. RSOR 13, Notice No. 2 RIN 2130-AA86]


Roadway Worker Protection

AGENCY: Federal Railroad Administration (FRA); DOT.

ACTION: Notice of establishment of advisory committee for regulatory 
negotiation session and notice of first meeting.

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SUMMARY: The Federal Railroad Administration is announcing the 
establishment of an advisory committee to develop a report including a 
recommended proposed rule concerning the protection of railroad 
employees who work on or adjacent to track and face the risk of injury 
from moving trains and equipment. The committee will adopt its 
recommendation through a negotiation process. The committee is composed 
of persons who represent interests affected by any rule adopted on this 
issue. This notice also announces the time and place of the first 
advisory committee meeting.

DATES: The first meeting of the advisory committee will begin at 9:30 
a.m. on January 23-25, 1995.

ADDRESSES: The first meeting of the advisory committee will be held in 
Room 3200-3204 of the Nassif Building, U.S. Department of 
Transportation, 400 7th Street, SW., Washington, DC. Subsequent 
meetings will be held at locations to be announced.

FOR FURTHER INFORMATION CONTACT: Christine Beyer or Cynthia Walters, 
Trial Attorneys, Office of Chief Counsel, FRA, 400 Seventh Street, SW., 
Room 8201, Washington, DC 20590 (Telephone: 202-366-0621).

SUPPLEMENTARY INFORMATION:

I. Background

    The Rail Safety Enforcement and Review Act, Pub. L. No. 102-365, 
106 Stat. 972, enacted September 3, 1992, required FRA to review and 
revise its track safety standards, and to complete ``an evaluation of 
employee safety.'' FRA issued an Advance Notice of Proposed Rulemaking 
(ANPRM) on November 16, 1992 (57 FR 54038) to begin the proceeding to 
amend the Federal Track Safety Standards (49 C.F.R. Part 213). 
Following publication of the ANPRM, FRA conducted a series of workshops 
to gather the industry's views on the need for changes to FRA's track 
regulations. One such workshop [[Page 1762]] held on March 31, 1993 was 
devoted specifically to employee safety and addressed the hazards 
associated with working adjacent to moving trains and equipment. It was 
determined that for the purposes of any proceeding, the term ``roadway 
worker'' would be used rather than ``maintenance of way employee'' to 
describe the group of employees at risk. This term encompasses 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 applies regardless of the craft or class title of the employee, 
affiliation with any labor organization, or rank within the railroad 
organization.
    Because FRA decided that this issue should be addressed quickly and 
because the hazards involved relate more closely to employee safety 
than to track standards, FRA moved roadway worker safety from the track 
safety standard review (FRA Docket No. RST-90-1) and placed it in FRA 
Docket No. RSOR 13.
    Since 1989, 24 roadway workers have been fatally injured by moving 
trains or equipment. Ten workers were struck by trains while performing 
work, four 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 the past year, the Brotherhood of Maintenance of Way 
Employes and the Brotherhood of Railroad Signalmen have filed petitions 
for emergency order and rulemaking that suggest procedures to reduce 
roadway worker fatalities and injuries.
    On June 3, 1994 FRA Administrator Jolene M. Molitoris convened a 
meeting with all affected industry representatives to discuss what 
actions the industry and the agency should take to prevent injuries and 
fatalities among roadway workers. FRA and the industry concluded that 
extensive input from all interested parties would be necessary to 
develop a rule that will address both the risk of injury from moving 
railroad equipment and the operational concerns that the issue 
presents. Therefore, it was determined that the agency should initiate 
a negotiated rulemaking to develop new standards to protect roadway 
workers.
    On August 17, 1994 FRA published a notice of intent to establish an 
advisory committee (Committee) for regulatory negotiation to develop a 
report including a recommended proposed and final rule concerning 
protection for roadway workers (59 FR 42200). The notice requested 
comment on membership, the interests affected by the rulemaking, the 
issues the Committee should address, and the procedures it should 
follow. The notice also announced the intent to seek the services of a 
professional neutral to facilitate the negotiations and requested 
nominations for this position from the industry.
    FRA received over 30 comments on the notice of intent. None of the 
comments opposed using regulatory negotiation for this rulemaking; most 
endorsed the process and included requests to serve on the Committee. 
Based on this response and for the reasons stated in the notice of 
intent, FRA has determined that establishing an advisory committee on 
this subject is necessary and in the public interest. In accordance 
with Section 9(c) of the Federal Advisory Committee Act, 5 U.S.C. App. 
I Sec. 9(c), FRA prepared a Charter for the establishment of the 
Roadway Worker Safety Advisory Committee. On December 27, 1994 the 
Office of Management and Budget approved the Charter, authorizing the 
Committee to begin negotiating the provisions of a proposed rule.

II. Mediators

    In the notice of intent, FRA stated that it was seeking an 
impartial mediator to conduct the negotiations. FRA is pleased to 
announce that the Federal Mediation and Conciliation Service (FMCS) has 
agreed to provide mediation personnel for this purpose.

III. Membership

    In addition to a representative from FRA, the Committee will 
consist of the following members:

American Public Transit Association (APTA)
The American Short Line Railroad Association (ASLRA)
Association of American Railroads (AAR)
Brotherhood of Locomotive Engineers (BLE)
Brotherhood of Locomotive Engineers, American Train Dispatchers 
Department (ATDA)
Brotherhood of Maintenance of Way Employes (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Burlington Northern Railroad (BN)
Consolidated Rail Corporation (Conrail)
CSX Transportation, Inc. (CSX)
Florida East Coast Railway Company (FEC)
Metra
National Railroad Passenger Corporation (AMTRAK)
Norfolk Southern Corporation (NS)
Regional Railroads of America (RRA)
Transport Workers Union of America (TWU)
Union Pacific Railroad Company (UP)
United Transportation Union (UTU)

    In order to ensure balance on the Committee, the BMWE and BRS will 
be represented by more than one individual: five for the BMWE and three 
for the BRS. FRA was not able to grant requests for multiple seats made 
by two other organizations. APTA and RRA each submitted two names for 
membership, and FRA chose one name from each organization. In making 
those decisions, the agency selected the individuals with operating 
experience rather than the lawyers that were nominated by APTA and RRA. 
FRA believes that the Committee will benefit greatly from members who 
have actual knowledge of railroad operating practices and hands-on 
field experience with those practices.
    FRA regrets being unable to accommodate all requests for membership 
on the Committee. Several factors, which were listed in the notice of 
intent, guided FRA's decision to limit the Committee's size to 25. The 
Committee must be kept to a size that permits effective negotiation, 
but that ensures all interests a voice in the recommendation adopted. 
Although FRA would have preferred a smaller Committee, the agency erred 
on the side of inclusion to be certain that all interests affected by a 
rule would be represented in this process. Summarized below is FRA's 
rationale for denying the remaining applications for membership.
    The Chicago and North Western Railway Company (CNW) requested 
representation on the Committee, but unfortunately could not be 
selected. Other Class 1 railroads on the Committee work with operating 
procedures, environmental conditions, topographical characteristics, 
and employee relations that are quite similar to those of CNW. Each of 
these factors may impact the content of a recommended proposed rule and 
so it is important that they be fully represented. However, FRA 
believes that AAR, BN, CSX, Conrail, NS, and UP adequately represent 
CNW's interests.
    The Massachusetts Bay Transportation Authority (MBTA) 
[[Page 1763]] petitioned for membership on the Committee, but was not 
selected. MBTA is a commuter line in the northeast with operational 
characteristics that are very similar to those of Amtrak, a Committee 
member. Also, APTA's Committee member will represent all commuter lines 
in this proceeding. Therefore, FRA believes that MBTA's interests will 
be adequately represented by the other commuter rail organizations on 
the Committee.
    The Long Island Rail Road (LIRR) requested Committee membership and 
nominated its Executive Director of System Safety to serve as its 
representative. Although FRA was not able to select LIRR for Committee 
membership, its nominee will serve on the Committee representing the 
interests of APTA and all public transit organizations. Therefore, 
LIRR's interests will be effectively considered during the negotiation 
process.
    The Wisconsin Central Ltd. (WC) requested representation on the 
Committee and nominated its Vice President of Engineering to represent 
its interests. This individual was also nominated to represent RRA. FRA 
was unable to select WC individually, but its nominee has been chosen 
to represent RRA and all regional railroads. Therefore, WC's interests 
will be adequately addressed in the negotiation process.
    Finally, the National Railroad Construction and Maintenance 
Association, Inc. (NRCMA) filed a request for membership jointly with 
RRA, and nominated its Executive Vice President to represent the 
interests of NRCMA and RRA. As indicated above, RRA filed a second 
application for representation asking that WC's Vice President of 
Engineering also represent their interests. As already stated, this 
individual has been chosen to represent RRA (and WC implicitly) because 
he brings extensive hands-on experience to the proceeding. FRA 
deliberated over NRCMA's application, and determined that its interests 
will be effectively represented by the railroads and labor 
organizations on the Committee who currently have primary 
responsibilities for protecting roadway workers. NRCMA's duties derive 
from and are subject to those of the railroads with whom they contract 
for maintenance and construction work. Given the limitations the agency 
faces in creating a Committee of reasonable size, and the broad 
spectrum of railroads and employee crafts represented on the Committee, 
FRA believes that NRCMA's interests will be effectively addressed in 
this process. Also, public participation will be a key component of 
this process; all Committee meetings will be open to the public, and 
the Committee is expected to devise procedures that will periodically 
permit comment from the public. FRA will hold a public hearing after 
issuing a proposed rule, and will invite and consider comments from 
organizations such as the NRCMA before promulgating any final standard.

IV. Participation by Non-Members

    FRA believes that public participation is critical to the success 
of this proceeding. Participation is not limited to Committee members. 
Negotiation sessions will be open to the public, so interested parties 
may observe the negotiations and communicate their views in the 
appropriate time and manner to Committee members. Also, interested 
groups or individuals may have the opportunity to participate with 
working groups of the Committee. FRA believes that this sort of 
participation will produce meaningful information and lead to a more 
effective roadway worker safety program. Of course, FRA will invite 
comment on the proposed rule resulting from the Committee's 
deliberations and hold a public hearing to hear additional comments.

V. Major Issues

    In its notice of intent, FRA tentatively identified major issues to 
consider in the negotiation and asked for comment on whether the issues 
presented were appropriate and if alternate or additional issues should 
be considered. Unfortunately, most comments submitted were devoted to 
issues of membership rather than rule substance. Listed below are 
subjects FRA believes the negotiation process should address:
    1. Devices available that would reduce the risk of injury to 
roadway workers;
    2. Practices and training programs currently in use or that may be 
instituted to reduce the risk of injury to roadway workers;
    3. The extent to which environmental, topographical, and 
operational conditions do or should cause variations in any roadway 
worker safety program;
    4. The type and extent of FRA enforcement and recordkeeping 
requirements necessary to protect roadway workers; and
    5. The costs associated with developing an effective roadway worker 
safety program. (The costs include but are not limited to the burden on 
railroads and local, state, and federal government entities.)
    FRA believes that the negotiation process should be open to 
discussion about these and any other relevant matters the Committee 
finds necessary to explore.

VI. Procedure and Schedule

    Those who commented on the notice of intent generally did not 
address Committee procedures. FRA anticipates that all or a substantial 
majority of the negotiation sessions will take place in Washington, 
D.C. at DOT headquarters. Given FRA's limited resources, travel outside 
of Washington, D.C. for the purpose of holding negotiation sessions is 
unlikely. However, FRA will consider any recommendations made by the 
Committee in this regard.
    FRA will not make any determinations at this time concerning the 
frequency or timing of public hearings, or the development of 
negotiation subcommittees. FRA's ability to hold public hearings will 
be subject to the availability of funds for this purpose. However, FRA 
will consider any recommendations the Committee makes on these matters.
    Consistent with requirements of the Federal Advisory Committee Act, 
a clear and comprehensive record of the Committee's deliberations 
should be kept and circulated to Committee members. FRA will provide an 
administrative specialist to the Committee to complete these duties and 
assist with drafting any additional documents, including the 
Committee's report. The Committee may also choose to designate 
additional individuals to draft documents.
    The objective of the negotiation, in FRA's view, is for the 
Committee to produce a report recommending a course of action for FRA 
to follow that will prevent roadway worker injuries and fatalities. FRA 
anticipates that the report will include a draft NPRM on which the 
Committee has reached consensus. This approach is consistent with 
recommendations of the Administrative Conference of the United States 
on regulatory negotiation. As stated in the notice of intent, FRA will 
proceed on its own if the Committee cannot reach consensus on a 
recommended course of action. In that event, FRA will make every 
attempt to include provisions that the Committee did reach agreement on 
in the agency's NPRM. Also, as stated in the notice of intent, FRA must 
review the Committee's recommendations for enforceability and 
effectiveness. If the agency determines that the report contains 
recommendations which are unenforceable, contrary to existing law, or 
completely ineffective, FRA may abandon or amend the Committee's 
recommendations. However, we believe [[Page 1764]] likelihood of such a 
situation is remote, and will seek to avoid this result.
    In view of the high priority FRA has given this proceeding and the 
facilitation contract limitations, the agency is asking the advisory 
committee to complete negotiations for the NPRM by May 1, 1995. FRA 
realizes that this deadline is ambitious, but we believe that it will 
encourage serious and efficient negotiation by all parties.
    The negotiation process will otherwise proceed according to a 
schedule of specific dates that the Committee devises at the first 
meeting to be held on January 23-25, 1995. As time permits, FRA will 
publish notices of future meetings in the Federal Register. The first 
meeting is scheduled to begin at 9:30 a.m. in Room 3200-3204 of the 
Nassif Building, DOT headquarters. This session will commence with an 
orientation and regulatory negotiation training program conducted by 
facilitators from the Federal Mediation and Conciliation Service. After 
the training program, the Committee will devise its procedures and 
calendar, and will then begin substantive deliberations on roadway 
worker safety. FRA has given advance notice of this meeting to all 
Committee members and believes that all members will be present for 
this first and important meeting.

    Issued this 29th day of December, 1994.
S. Mark Lindsey,
Acting Administrator, Federal Railroad Administration.
[FR Doc. 95-201 Filed 1-4-95; 8:45 am]
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