[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10528-10548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6175]



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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration

49 CFR Part 214

[FRA Docket No. RSOR 13, Notice No. 6]
RIN 2130-AA86


Roadway Worker Protection

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FRA proposes rules for the protection of railroad employees 
working on or near railroad tracks. This regulation would require that 
each railroad devise and adopt a program of on-track safety to provide 
employees working along the railroad with protection from the hazards 
of being struck by a train or other on-track equipment. Elements of 
this on-track safety program would include an on-track safety manual; a 
clear delineation of employers' responsibilities for providing on track 
safety, as well as employees' rights and responsibilities related 
thereto; well defined procedures for communication and protection; and 
annual on-track safety training. The program adopted by each railroad 
would be subject to review and approval by FRA.

DATES: (1) Written comments must be received no later than May 13, 
1996. Comments received after that date will be considered to the 
extent possible without incurring additional expense or delay. Requests 
for formal extension of the comment period must be made by April 29, 
1996.

    (2) Requests for a public hearing must be made by April 15, 1996.
Addresses: Written comments should be submitted to the Docket Clerk, 
Office of Chief Counsel, Federal Railroad Administration, 400 Seventh 
Street SW., Washington, DC 20590. Persons wishing notification that 
their comments have been received should submit a stamped, self-
addressed postcard with their comments. The Docket Clerk will indicate 
on the postcard the date on which the comments were received and will 
return the card to the addressee. Written comments will be available 
for examination, both before and after the comment period closes, 
during regular business hours in Room 8201 of the Nassif Building 
located at the address listed above. Any person interested in 
requesting a hearing should contact the Docket Clerk at (202) 366-2257.

FOR FURTHER INFORMATION CONTACT: Gordon A. Davids, P.E., Bridge 
Engineer, Office of Safety, FRA, 400 Seventh Street SW., Washington, DC 
20590 (telephone: 202-366-0507); Phil Olekszyk, Deputy Associate 
Administrator for Safety Compliance and Program Implementation, FRA, 
400 Seventh Street SW., Washington, DC 20590 (telephone: 202-366-0897); 
or Cynthia Walters, Trial Attorney, Office of Chief Counsel, FRA, 400 
Seventh Street SW., Washington, DC 20590 (telephone: 202-366-0621).

Supplementary Information:

Comments and Hearing

    In accordance with Executive Order 12866, FRA is allowing 60 days 
for comments. FRA believes that a 60 day comment period is necessary 
for parties with interests that were not represented on the Advisory 
Committee. Public hearings are generally held to provide interested 
parties an opportunity for oral presentations of data, views, or 
arguments concerning the proposed standards. Proceeding pursuant to 
regulatory negotiation has allowed participation by the public and a 
public hearing will only be scheduled, if requested.

Introduction

Background

    Concern regarding hazards faced by roadway workers has existed for 
many years. The FRA received a petition to amend its track safety 
standards from the Brotherhood of Maintenance of Way Employees (BMWE) 
in 1990, which included issues pertaining to the hazards faced by 
roadway workers. This proceeding, however, formally originated with the 
Rail Safety Enforcement and Review Act, Public Law No. 102-365, 106 
Stat. 972, enacted September 3, 1992, which required FRA to review its 
track safety standards and revise them based on information derived 
from that review. FRA issued an Advanced Notice of Proposed Rulemaking 
(ANPRM) on November 16, 1992 (57 FR 54038) announcing the opening of a 
proceeding to amend the Federal Track Safety Standards.
    Workshops were held in conjunction with this effort, to solicit the 
views of the railroad industry and representatives of railroad 
employees on the need for substantive change in the track regulations. 
A workshop held on March 31, 1993 in Washington, D.C., specifically 
addressed the protection of employees from the hazards of moving trains 
and equipment. The subject of injury and death to roadway workers was 
of such great concern that FRA received petitions for emergency orders 
and requests for rulemaking from both the Brotherhood of Maintenance-
of-Way Employees and the Brotherhood of Railroad Signalmen. FRA did not 
grant the petitions for emergency orders, but instead initiated a 
separate proceeding to consider regulations to eliminate hazards faced 
by these employees. FRA removed this issue from the track standards 
docket, FRA Docket No. RST-90-1 and established a new docket, FRA 
Docket No. RSOR 13, specifically to address hazards to roadway workers 
to expedite the effective resolution of this issue.
    FRA also determined that standards addressing this issue would be 
more closely related to workplace safety than to standards addressing 
the condition of railroad track. Since Railroad Workplace Safety is 
addressed in 49 CFR Part 214, standards issued for the protection of

[[Page 10529]]
roadway workers would be better categorized in this section, than Part 
213, Track Safety Standards. Accordingly, the minimum standards 
proposed in this notice would amend Part 214 of Title 49, Code of 
Federal Regulations by adding a new subpart, Subpart C, addressing 
hazards to roadway workers.
    FRA convened a Safety Summit Meeting on June 3, 1994 with affected 
railroad industry, contractor, and labor representatives. This meeting 
considered certain aspects of FRA accident data involving roadway 
workers. The meeting also facilitated a discussion of various short-
term and long-term actions that could be taken by FRA and the industry 
to prevent injuries and deaths among roadway workers. One long-range 
alternative suggested by FRA was to use the negotiated rulemaking 
process to allow input from both railroad management and labor to 
develop standards addressing this risk. The agency determined that this 
was an appropriate subject for a negotiated rulemaking, and initiated 
this process.
    FRA published its notice of intent to establish a Federal Advisory 
Committee for regulatory negotiation on August 17, 1994 (59 FR 42200). 
This notice stated the purpose for the Advisory Committee, solicited 
requests for representation on the Advisory Committee, and listed the 
key issues for negotiation. Additionally, the notice summarized the 
concept of negotiated rulemaking including an explanation of consensus 
decision making. The Advisory Committee would be responsible for 
submitting a report, including an NPRM, containing the Committee`s 
consensus decisions. If consensus was not reached on certain issues, 
the report would identify those issues and explain the basic 
disagreement. Pursuant to negotiated rulemaking, FRA committed the 
agency to issue a proposed rule as recommended by the committee unless 
it was inconsistent with statutory authority, agency or legal 
requirements, or if in the agency`s view the proposal did not 
adequately address the subject matter. FRA agreed to explain any 
deviations from the committee`s recommendations in the NPRM.
    FRA established an Advisory Committee in accordance with the 
Federal Advisory Committee Act, 5 U.S.C. 581, based on the response to 
its notice. On December 27, 1994, the Office of Management and Budget 
approved the Charter to establish a Roadway Worker Safety Advisory 
Committee, enabling the committee to begin negotiations. FRA announced 
the establishment of this Advisory Committee, with the first 
negotiating session to be held on January 23-25, 1995 (60 FR 1761). FRA 
chose the Federal Mediation and Conciliation Service to mediate these 
sessions, and administrative support was acquired to carry out 
organizational and record keeping functions.
    The twenty-five member Advisory Committee was comprised of 
representatives from the following organizations:

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 (ATDD)
Brotherhood of Maintenance of Way Employees (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Burlington Northern Railroad (BN)
Consolidated Rail Corporation (Conrail)
CSX Transportation, Inc. (CSX)
Florida East Coast Railway Company (FEC)
Federal Railroad Administration (FRA)
Northeast Illinois Regional Railroad Corporation (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)

    The Advisory Committee held 7 multiple-day negotiating sessions 
that were open to the public, as prescribed by the Federal Advisory 
Committee Act, 5 U.S.C. 581. In an effort to assist this proceeding, 
information was presented at the first Advisory Committee meeting by 
committee members who had participated earlier in an independent task 
force. This task force, comprised of representatives of several 
railroads and labor organizations, had met during the preceding year to 
independently analyze the issue of on-track safety. The findings and 
recommendations of the task force were considered along with 
information presented by other Advisory Committee members.
    The Advisory Committee reached consensus on 11 specific 
recommendations and 9 general recommendations to serve as the basis for 
a regulation. These recommendations were incorporated into a report 
that was submitted to the Secretary of Transportation and the Federal 
Railroad Administrator on May 17, 1995. This report did not include an 
NPRM, as originally conceived, but established the basis for the 
proposed rule, which is the subject of this notice.
    The Advisory Committee held one additional two-day session, and 
reached consensus on a proposed rule that conformed to the 
recommendations submitted in their report. The Committee recommended 
that FRA publish that document as a proposed Federal regulation and 
continue the rulemaking procedures necessary to adopt its principles in 
a final rule. The differences in substance between this proposed rule 
and that recommended by the Advisory Committee are enumerated below, 
with the reasons therefore.

Safety Issues

Early Efforts

    FRA attempted to analyze the safety concerns, known risks, and 
prevention methods during the March, 1993 workshop. Information derived 
from that workshop focused the agency's efforts. Discussions indicated 
that major carriers, regional railroads, short lines, and commuter 
railroads had rules addressing the hazards associated with working on 
and near railroad track. Railroad representatives at the workshop 
explained the safety procedures used on their respective properties, 
including the use of watchmen, protection from trains on adjacent 
tracks, use of radios, establishing working limits, use of line-ups, 
slowing the speed of trains, protection while using maintenance of way 
equipment, training, efficiency testing, and other related topics. The 
concept of allowing workers the right to question the system set up for 
their protection was also introduced into the discussion.
    FRA presented information from its data base regarding employee 
fatalities for the years 1988 through 1993 and attempted to categorize 
the risks associated with these fatalities. FRA identified 23 accidents 
resulting in fatalities and categorized these accidents into 6 groups: 
employees struck by a train on live track while not directly engaged in 
work, accounting for 11 fatalities; employees struck by a train while 
directly engaged in work, accounting for 3 fatalities; employees struck 
by a train or rolling stock moving without authority, accounting for 
one fatality; employees who fell from track machines, accounting for 2 
fatalities; employees struck by moving track machinery, accounting for 
5 fatalities; and improper machine operation, accounting for one 
fatality.
    Although there was disagreement regarding FRA's designation of 
certain accidents as belonging in certain categories, the discussion 
successfully delineated the risks affecting workers and whether carrier 
rules would have applied. This initial attempt to

[[Page 10530]]
categorize accident data provided the framework for additional analysis 
of the safety problem. The following emerged:
A. Persons Affected by This Rule
    One topic discussed was the scope of the population of employees 
exposed to this risk. Attention was focused on terminology that would 
appropriately describe the population of employees who were at risk of 
death or injury while working on or about the track. All participants 
agreed that the risk of injury or death to those working on or about 
track is not restricted to a particular craft or class of employees. To 
assure understanding of the broad reach of the proceeding, FRA coined 
the term roadway worker and proposed use of that term in its Notice of 
Intent.
B. The Specific Issues
    FRA's Notice of Intent listed several specific issues for 
negotiation by the Advisory Committee. FRA did not limit negotiations 
to these subjects only, but determined that the following issues should 
be covered:
     The availability of any devices to reduce the risk of 
danger to roadway workers and any costs associated with such devices;
     Any additional or revised procedures or operating 
practices that could be instituted to effectively reduce the risk of 
danger, and any costs associated with these procedures;
     Training programs that would reduce the risks of danger to 
roadway workers, the proper intervals for such training, and the costs 
associated with that training;
     The topographical, environmental, or operational 
conditions that must be considered in developing a program to reduce 
the risks of harm to roadway workers and the costs of addressing these 
conditions;
     Possible variations in programs according to size of 
railroads, and an explanation regarding why these variations are 
necessary;
     The recordkeeping and reporting requirements necessary to 
implement programs to advance the safety of roadway workers, and the 
cost of these requirements;
     The enforcement procedures FRA would utilize to ensure 
compliance with any rule that is developed;
     Any additional benefits resulting from a rule, aside from 
the obvious reduction of risk of injury and death;
     The usefulness of operating practices currently used by 
any particular railroad, their background, implementation, 
effectiveness, and cost.

Accident Data and Statistical Analysis

    FRA published a report entitled Engineering Department Fatalities 
Resulting from the Operation or Maintenance of On-Track Equipment, 
representing the findings of FRA's investigation of 22 Engineering 
Department railroad employee fatalities during calendar years 1989-
1993. The document was officially published in 1994, but the 
information was compiled in 1993, and was used in preliminary 
discussions regarding on-track safety, beginning with the March, 1993, 
workshop. Four categories of causes were established: struck by a 
train, struck by on-track maintenance of way equipment, crushed or 
pinned by on track equipment, and struck by free-rolling equipment.
    A summary of information gathered from the investigation of each 
accident was included in the report. This document provided an 
information base from which to isolate causes and contributing factors 
that could be addressed in a proposed rule. FRA accident data provided 
the statistical basis to focus efforts toward certain prevention 
measures.
    The independent labor management task force mentioned earlier also 
conducted an analysis of accident data. They focused on 43 accidents 
resulting in 46 roadway worker fatalities from 1986 through 1994. They 
also used data regarding 150 injuries to roadway workers reported to 
FRA from 1989 through 1994, and additional injury data submitted from 
carrier files. Questionnaires regarding the current industry practice 
for roadway worker safety were submitted by representatives from 
management and labor and reviewed by the task force. The cumulative 
effort of the task force included review of over 2,600 FRA reports as 
well as review of available NTSB reports related to roadway worker 
fatalities and injuries.
    The data analysis conducted by the independent task force suggested 
that there were identifiable trends regarding these fatal accidents. 
The following are examples of patterns discovered in the accident data:
     Higher numbers of fatalities seem to occur in the fall and 
winter months of October, November, December, and January, but two 
summer months, May and July, also have a high number of fatalities.
     Fatalities tend to occur more often on Wednesdays and 
Thursdays.
     The highest number of fatalities tend to occur around 9:00 
a.m. or 10:00 a.m.
     The largest number of employees killed are between the 
ages of 40 and 49 years old. These individuals generally have at least 
15 years of railroad experience, with some having more than 20 years of 
experience.
     The largest number of fatalities occurred within 
approximately six months following rules training and safety training.
     Most fatalities occurred while some form of protection 
system was available or in use.
     Maintenance of Way employees and Signal employees had the 
highest number of fatalities.
    There are numerous possible explanations for these trends. Multiple 
factors may have contributed to these incidents, and isolating a single 
distinct cause or explanation is virtually impossible. Inclusion of 
these patterns was not intended for that purpose, but to merely to 
inform the group of identifiable tendencies that appear in the accident 
data.

Advisory Committee Report

    As noted earlier, the Advisory Committee reached consensus on a 
report containing 11 specific recommendations and 9 general 
recommendations. The specific recommendations provided the concepts 
that formed the basis for the text of this proposed rule. The data 
review by the independent task force and the Advisory Committee 
revealed other useful information regarding conditions that need 
special emphasis in the on-track safety programs. The Advisory 
Committee made the general recommendation that this information should 
be published by FRA with this rule.
    This information identifies particular conditions to which roadway 
workers should devote special attention, as they appear to be more 
problematic than others. This information and other relevant trends are 
included here, so that these facts might be considered by railroads 
when devising on-track safety programs.
    Analysis of the data indicates that 16% of the fatal accidents and 
37% of the injury incidents were the result of on-track equipment 
striking roadway workers or other roadway equipment. The Advisory 
Committee concluded that training, job briefings, and operation of on-
track equipment should place special emphasis on:
     Attention to visibility/stopping distance
     Review of stopping capability and limitations
     Purpose and limits of work zones
     Attention to existing weather conditions
    
[[Page 10531]]

     Importance of maintaining proper equipment spacing
     Briefing concerning joint track occupancy
     Procedures for traveling on track
    Further analysis indicated that 35% of non-fatality incidents were 
on Thursdays, and 50% of non-fatality incidents occurred between 7:30 
a.m. and 10:30 a.m. to Maintenance of Way roadway workers. The 
Committee could not explain this trend with any degree of certainty. 
However, it was generally agreed that special emphasis to alert 
Maintenance of Way roadway workers to these facts must be made in 
safety awareness training during job briefings, safety meetings and 
rules training.
    The Committee also discovered that 69% of fatal incidents to signal 
maintainers occurred during November, December, and January. The 
Committee recommended that employers should consider and point out this 
fact in safety awareness training during job briefings, safety 
meetings, and rules training.
    Considerable discussion in the Committee sessions centered around 
training. Because statistics indicate that 65% of the fatally-injured 
roadway workers had attended rules training within the previous 12 
months, the Advisory Committee concluded that training must be 
improved. Areas to focus on for improvement would include:
     Curriculum development and content
     Learning environment
     Presentation and interactive instruction
     Understanding and application
     Peer training
     On-Track Safety specific subjects
    It had been thought by some that employees involved in these 
accidents were generally among newer employees who perhaps were not 
familiar with the railroad environment. Contrary to this likely 
assumption, the data indicated that 26% of the fatalities involved 
supervisory employees. These roadway workers are familiar with the 
railroad environment and protection methods, and had many years of 
railroad experience. The Committee therefore concluded that additional 
emphasis should be placed on the following:
     Selection of Managers
     Quality of Training
     Management commitment to on-track safety
     Priority to on-track safety
     Serving as a role model
    The negotiated rulemaking process has been a success. Continued 
joint efforts such as this should be of great benefit to the railroad 
industry, its employees, and the public. In recognition of this, the 
Advisory Committee adopted the following recommendations to foster 
continued collaboration among the interested parties:
     Establish a joint labor/management/FRA process to evaluate 
analyze and encourage emerging technologies which may enhance roadway 
on-track worker safety. This recommendation is made to allow prompt and 
thorough evaluation of such emerging technology.
     The Joint Labor-Management On-Track Safety Task Force 
should meet on a periodic basis (at least semi-annually) to review 
progress, to review current data and to continue a joint labor/
management dialogue seeking ways to improve roadway worker on-track 
safety.
    It should be noted that the Joint Labor-Management On-Track Safety 
Task Force is not the Federal Advisory Committee on Roadway Worker 
Protection, nor does the Joint Task Force have any official standing 
with the Federal government. The Federal Advisory Committee recommended 
that the Joint Labor-Management On-Track Safety Task Force remain in 
existence and meet periodically, and to the extent that the parties 
represented on the Task Force elect to do so, it undoubtedly will. FRA 
encourages close cooperation among the various parties and interests to 
resolve safety problems both in this rule and as a matter of good 
public policy. FRA also gives considerable attention to proposals that 
represent a consensus of the interested parties, and anticipates that 
the Joint Labor-Management On-Track Safety Task Force will facilitate 
this type of cooperative effort.

Scope of the Rule

    FRA and the Advisory Committee deliberated at length over how much 
the proposed rule would cover. Scoping discussions ranged from who 
would be covered under this rule, as discussed earlier, to what 
measurement of the surrounding track space places an employee in danger 
of being struck by a train or moving equipment. During these 
discussions, two additional issues surfaced requiring an explanation of 
who would be covered under this rule, contractors and tourist 
railroads.

Contractors

    FRA realizes that parties who have not traditionally been 
considered railroads will be affected by this regulation. The decision 
to include employees of contractors as roadway workers in this 
regulation was a well-reasoned one. FRA's objective was to promulgate 
standards applicable to anyone working on or about railroad tracks who 
may be in danger while performing their duties. The craft or job title 
of an employee is of little relevance. Equally irrelevant is whether an 
employee is paid by a railroad or by a contractor engaged by a 
railroad. The most important issue is the prevention of deaths and 
injuries. FRA holds no position on the practice of a railroad 
contracting work out to another company, but FRA strongly believes that 
contractor employees are entitled to the same level of safety as 
railroad employees. To the extent that contractor employees work under 
circumstances presenting the hazards addressed here they must be 
protected.
    FRA understands the circumstances under which many contractors 
conduct their work and realizes that adhering to the standards of this 
rule may appear burdensome to contractors. However, a closer 
examination of the standards in the rule shows that contractors will 
not normally devise their own on-track safety programs, but would 
follow the programs established by the railroads on which they are 
working. Most of a contractor's employee training will be of a basic 
nature, as railroad employees are usually working with and protecting 
contractors working near moving trains. Those railroad employees will 
normally arrange protection in accordance with the rules and procedures 
of the railroad.
    Contractors will, however, be responsible for compliance with this 
subpart. They are responsible as employers to ensure that their 
employees have protection prior to assigning them to work on or near 
the track, and to ensure that their employees have been properly 
trained to work safely in the railroad environment. Since contractors 
were not represented on the Advisory Committee, FRA specifically 
invites comments from contractors on this proposed rule.

Tourist Railroads

    Tourist and excursion railroads that operate on the general system 
of railroad transportation will be included. Tourist and excursion 
railroads that do not operate on the general system will be excluded. 
FRA realizes that adhering to the standards in this rule may appear 
burdensome to railroads operating in the tourist industry. However, a 
closer examination of the issue reveals that many tourist railroads 
operating on the general system actually operate on track owned by 
another railroad. Those tourist railroads would be required to follow 
the rules of the track owners, if they were to operate over that 
portion of track or conduct any maintenance on that portion of track.

[[Page 10532]]

    Additionally, it is FRA's understanding that many tourist and 
excursion railroads do not conduct their maintenance work under 
traffic, but do so during periods when there is little or no traffic. 
Therefore, any program devised to adhere to the standards of this 
subpart by a tourist railroad could be fairly simple, and any required 
training for roadway workers would be of a basic and general nature.
    FRA does not intend to unduly burden railroads operating in the 
tourist industry. However, if these railroads are going to operate in 
the general system of transportation and there is any chance that their 
employees will be confronted with the risk of injury and death from 
trains or moving equipment, they must adhere to the standards of this 
regulation. Since tourist railroads were not represented on the 
Advisory Committee, FRA specifically invites comments from tourist 
railroads on this proposed rule.

Rights and Responsibilities of Employees and Employers

    FRA agreed with the Advisory Committee that roadway workers must 
understand, and therefore must be able to review and question, on-track 
safety provisions. The proposed rule therefore provides that a roadway 
worker who finds that the on-track safety provisions in place do not 
comply with the rules of the operating railroad has both a right and a 
responsibility to occupy a place of safety until the question is 
resolved. Section 214.313 imposes a reciprocal responsibility for on-
track safety onto each individual roadway worker. Accordingly, a 
roadway worker has to be able to decide whether on-track safety is 
being provided and if not, he or she has a right and an obligation to 
remain off the track until the matter is resolved, and to notify the 
employer of possible flaws in on-track safety provisions.
    FRA has considerable authority in the area of railroad safety. This 
authority extends to individuals as well as to railroad carriers. FRA 
will act whenever it finds or receives notice of possible violations of 
this rule. Should a potential violation involve the rights and 
responsibilities of an individual roadway worker to question on-track 
safety procedures, FRA will consider all available evidence, including 
written records maintained by parties in the case, statements of 
witnesses, the nature of the on-track safety provisions in effect at 
the time, and whether the involved employee or employees had been 
correctly informed of those on-track safety provisions.

Deviations From the Advisory Committee Reports

    FRA committed to adhere to the consensus reached by the Advisory 
Committee, unless the agreed upon course of action violated legal 
requirements, statutory authority, departmental regulations, or in the 
agency's view, did not adequately address the subject matter. The 
Advisory Committee produced two documents, an initial report of 
principles to be addressed in this proceeding, and later a proposed 
Notice of Proposed Rulemaking which incorporated the basic principles 
in language recommended by the Committee.
    The two substantive deviations between the Advisory Committee 
Report and the proposed NPRM involved changes in terminology. They were 
enumerated in the proposed NPRM, and are retained here for reference.

Term, Positive Protection

    The report submitted by the Advisory Committee used the term 
Positive Protection to describe several circumstances in which roadway 
workers would be safe from the threat of approaching trains, or 
essentially ``protected'' from them.
    Analysis of the Committee recommendation by FRA showed that two 
quite different procedures were contemplated under the provision of 
Positive Protection. One was a broad group of existing railroad 
procedures designed to hold trains clear of certain tracks, and the 
other was a procedure in which roadway workers would be warned of an 
approaching train in time to clear the tracks before the train arrived. 
Strictly for purposes of semantics, to permit consistency in the text 
of the rule, FRA has divided the procedures grouped in the 
recommendation under the term Positive Protection into two categories: 
Working Limits and Train Approach Warning. Explanation of these two 
categories of on-track safety procedures are found in the rule text and 
corresponding section-by-section analysis.

Term, Positive Train Location System

    The Advisory Committee proposed use of the term positive train 
location system to identify a type of on-track safety protection 
available in accordance with this rule. The term positive has greater 
implications than the Committee intended. FRA does not wish to confound 
the terminology of this or other proceedings by using terms already 
applied to concepts that were under development for several years 
before this proceeding began. FRA particularly does not wish to limit 
or inhibit the development of any aspect of Advanced Train Control 
Systems (ATCS), Positive Train Control (PTC), or Positive Train 
Separation (PTS). Promulgating a regulation that would limit a practice 
termed positive train location could be misconstrued as somehow 
limiting ATCS, PTC, or PTS.
    FRA therefore substitutes the term definite train location as the 
name of a system which is the same as that termed by the Advisory 
Committee a positive train location system. The definition will not 
change. It is FRA's contention that this new term captures the meaning 
of the former term. Essentially, the proposition is the same, in which 
trains will only be authorized to pass certain locations at or after 
definite times.
    FRA also found it necessary to deviate from the exact language of 
the NPRM proposed by the Advisory Committee in several instances. Most 
were simple editorial changes for clarification or correction, and the 
renumbering of sections for correct sequencing behind section 214.229. 
Some substantive changes were also made, which are enumerated and 
either explained or referenced here.

Term , Definite Train Location

    FRA removed three sentences of operational requirements from the 
definition, and replaced them with a reference to section 214.329 of 
this part, which implements and specifies the requirements for definite 
train location. The change was made to eliminate redundancy and to 
conform to standards of proper regulatory language.

Term--Exclusive Track Occupancy

    FRA made an editorial change, and added the cross reference to 
section 214.321 of this part for reasons stated under Term, Definite 
train location, above.

Term--Foul Time

    FRA made an editorial change, and added the cross reference to 
section 214.323 of this part for reasons stated under Term, Definite 
train location, above.

Term--Inaccessible Track

    FRA inserted additional clarifying language at the end of the 
definition, by physically preventing entry and movement of trains and 
equipment, to clarify the definition.

Term--Restricted Speed

    FRA added references to train or other equipment and the range of 
vision of the

[[Page 10533]]
person operating the train or other equipment. This term as originally 
written is commonly found in railroad operating rules which govern the 
movement of trains. In that context, the applicability is clear. 
However, in this regulation FRA feels that the applicability should be 
more clearly specified. There is no intent by FRA to supersede this 
definition in other regulations or applications.

Term--Roadway Maintenance Work Train

    FRA deleted references to roadway maintenance work train from the 
rule, and from the definition of roadway maintenance machine. The term 
is not used in the regulation, and was an artifact of an earlier draft. 
There is no distinction between roadway maintenance work trains and 
trains operated for any other purpose under the same types of controls.

Term--Working Limits

    FRA made editorial changes to this definition to replace the word 
limits within the definition with the word boundaries simply to avoid 
use of a defined word in its own definition. The meaning of the 
definition is not changed.

Section 214.317  On Track Safety Procedures, Generally

    FRA proposes that a phrase be added to his section that more 
clearly requires an employer to adopt a program containing specific 
rules that comply with the requirements of this section. FRA also 
proposes to eliminate the qualifier, roadway workers who foul a track, 
because roadway workers are, by definition, employees whose duties 
situate them where they may potentially foul a track.

Section 214.329  Definite Train Location

    Besides the change in the definition of the term Definite train 
location mentioned above, FRA proposes to add operative language, 
previously found in the definition of definite train location, to this 
section, which is referenced in the definition.

Section Analysis

    FRA proposes to amend Part 214 of Title 49, Code of Federal 
Regulations by adding a new subpart specifically devoted to the 
protection of employees from the hazards associated with working near 
moving trains and equipment.

1. Application: Sec. 214.3

    FRA proposes that this subpart will apply to all railroads and 
contractors to railroads in the general system of railroad 
transportation, including commuter rail operations. Accordingly, 
existing section 214.3 will not change. This means that tourist and 
excursion railroads that are not part of the general system of railroad 
transportation will not be subject to these rules. The data 
illustrating the serious nature of the hazards addressed in this 
subpart did not include tourist and excursion railroads. FRA has not 
otherwise been notified that these hazards causing death and injury to 
roadway workers are a serious problem for tourist and excursion 
railroads or any other railroads not operating over the general system 
of railroad transportation. However, FRA reserves the right to include 
tourist and excursion railroads that do not operate on the general 
system of railroad transportation in the final rule, if the record 
reflects such a need.

2. Definitions: Sec. 214.7

    Section 214.7 will be amended to add new definitions. Several 
definitions are particularly important to the understanding of the 
rule, and are explained here. However, many other terms are defined and 
explained with the analysis of the rule text to which they apply.
    Effective securing device is defined in this part as one means of 
preventing a manually operated switch or derail from being operated so 
as to present a hazard to roadway workers present on certain non-
controlled tracks. This definition is specifically intended to include 
the use of special locks on switch and derail stands that will 
accommodate them, and switch point clamps that are properly secured. It 
also includes the use of a spike driven into the switch tie against the 
switch point firmly enough that it cannot be removed without proper 
tools, provided that the rules of the railroad prohibit the removal of 
the spike by employees not authorized to do so. Every effective 
securing device must be tagged. FRA will examine each railroad's on-
track safety program to determine that the rules governing the 
securement of switches will provide the necessary level of protection.
    Lone workers are defined in this part as roadway workers who are 
not being afforded on-track safety by another roadway worker, are not 
members of a roadway work group, and are not engaged in a common task 
with another roadway worker. Generally, a common task is one in which 
two or more roadway workers must coordinate and cooperate in order to 
accomplish the objective. Other considerations are whether the roadway 
workers are under one supervisor at the worksite; or whether the work 
of each roadway worker contributes to a single objective or result.
    For instance, a foreman and five trackmen engaged in replacing a 
turnout would be engaged in a common task. A signal maintainer assigned 
to adjust the switch and replace wire connections in the same turnout 
at the same time as the track workers would be considered a member of 
the work group for the purposes of on-track safety. On the other hand, 
a bridge inspector working on the deck of a bridge while a signal 
maintainer happens to be replacing a signal lens on a nearby signal 
would not constitute a roadway work group just by virtue of their 
proximity. FRA does not intend that a common task may be subdivided 
into individual tasks to avoid the use of on-track safety procedures 
required for roadway work groups.
    On-track safety is defined as the 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. This term states the ultimate 
goal of this regulation, which is for workers to be safe from the 
hazards related to moving trains and equipment while working on or in 
close proximity to the track. The rule will require railroads to adopt 
comprehensive programs and rules to accomplish this objective. This 
rule, and required programs, will together produce a heightened 
awareness among railroad employees of these hazards and the methods 
necessary to reduce the related risks.
    Qualified as used in the rule with regard to roadway workers 
implies no provision or requirement for Federal certification of 
persons who perform those functions.
    Roadway worker is defined as any employee 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 as defined in this rule.
    Some railroad employees whose primary function is transportation, 
that is, the movement and protection of trains, will be directly 
involved with on-

[[Page 10534]]
track safety as well. These employees would not necessarily be 
considered roadway workers in the rule. They must, of course, be 
capable of performing their functions correctly and safely.
    The rule requires that the training and qualification for their 
primary function, under the railroad's program related to that 
function, will also include the means by which they will fulfill their 
responsibilities to roadway workers for on-track safety. For instance, 
a train dispatcher would not be considered a roadway worker, but would 
be capable of applying the railroad's operating rules to the 
establishment of working limits for roadway workers. Likewise, a 
conductor who protects a roadway maintenance machine, or who protects a 
contractor working on railroad property, would not be considered a 
roadway worker, but would receive training on functions related to on-
track safety as part of the training and qualification of a conductor.
    Employees of contractors are included in the definition if they 
perform duties on or near the track. They should be protected as well 
as employees of the railroad. The responsibility for on-track safety of 
employees will follow the employment relationship. Contractors are 
responsible for the on-track safety of their employees and any required 
training for their employees. FRA expects that railroads will require 
their contractors to adopt the on-track safety rules of the railroad 
upon which the contractor is working. Where contractors require 
specialized on-track safety rules for particular types of work, those 
rules must, of course, be compatible with the rules of the railroad 
upon which the work is being performed.
    The rule does not include employers, or their employees, if they 
are not engaged by or under contract to a railroad. Personnel who might 
work near railroad tracks on projects for others, such as cable 
installation for a telephone company or bridge construction for a 
highway agency, come under the jurisdiction of other Federal agencies 
with regard to occupational safety.
    The terms explained here are not exhaustive of the new definitions 
that will be added to Section 214.7. This introduction merely provides 
a sampling of the most important concepts of this proposed regulation. 
Many other terms are defined and explained in the section by section 
analysis when analyzing the actual rule text to which they apply.

3. Purpose and Scope: Sec. 214.301

    Section 214.301 states the purpose for the minimum standards 
required under this subpart to protect roadway workers. Railroads can 
adopt more stringent standards as long as they are in accordance with 
this subpart.

4. Railroad On-Track Safety Programs, Generally: Sec. 214.303

    Section 214.303 gives the general requirement that railroads shall 
adopt and implement their own program for on-track safety, which meets 
Federal minimum standards. Rather than implement a command and control 
rule, FRA decided to establish the parameters for such a program and 
defer to the expertise of each individual railroad to adopt a suitable 
on-track safety program for their railroad, in accordance with these 
parameters. FRA felt that establishing an internal monitoring process 
to determine compliance and effectiveness would be a necessary 
component of any On-Track Safety Program. Consequently, each railroad 
must incorporate an internal monitoring process as a component of its 
individual program. It should be noted that this internal monitoring 
will not replace FRA's inspection and monitoring efforts for compliance 
with this subpart.

5. Effective Dates: Sec. 214.305

    Section 214.305 establishes the schedule for the rule to go into 
effect. The dates vary by class of railroad. FRA believes that 
staggering effective dates allows the largest number of workers who are 
exposed to the highest level of risk to benefit from the On-Track 
Safety Program first. FRA hopes to be able to expedite the review 
process, as the smallest number of individual programs will be put in 
place by the major carriers. After this initial phase of reviews for 
Class I railroads, FRA will have established review policies and 
resolved many recurrent issues, making the larger number of reviews for 
smaller railroads more efficient. The experience gained through the 
initial phase of the review process will contribute to the next and 
larger phase of reviews. Although the rule formally establishes a later 
required effective date on smaller railroads, this would not prevent 
smaller railroads from implementing their programs sooner.

6. Review and Approval of Individual On-track Safety Programs by FRA: 
Sec. 214.307

    Section 214.307 specifies the process for review and approval of 
each railroad's on-track safety program by FRA. The intent of the 
review and approval is to be constructive, rather than restrictive. FRA 
prefers that a review of each program take place at the railroad 
because an open discussion of the program would be beneficial to all 
concerned. The effective date of a railroad's program will not be 
delayed by FRA's scheduling of a review, or granting approval. The 
railroad will be responsible for compliance with this rule regardless 
of FRA review or approval of its program.
    Likewise, a railroad may amend its program following FRA approval 
without prior approval of the amendment from FRA. Of course, should FRA 
later disapprove the amendment, the program would have to be changed to 
secure FRA's approval. The railroad will still be responsible for 
compliance with this rule, and subject to compliance monitoring and 
enforcement by FRA. FRA will make every effort, when requested, to 
provide a timely review of a program or amendment before its effective 
date, and to assist in any manner possible to enhance the on-track 
safety afforded to roadway workers.
    Contractors will be required to conform to the on-track safety 
programs on the railroads upon which they are working. Contractors 
whose employees are working under a railroad's approved on-track safety 
program need not submit a separate on-track safety program to FRA for 
review and approval.
    Some contractors operate highly specialized equipment on various 
railroads on a regular basis. That equipment might require special 
methods to provide on-track safety for railroad and contractor 
employees. Such a special method will require a clear and reasonable 
way to mesh with the on-track safety programs of the railroads upon 
which the equipment is operated.
    The rule does not specifically call for the involvement of 
employees or their representatives in the program design or review 
process, because the responsibility for the program's compliance with 
this rule lies with the employer. However, it should be noted that this 
rule itself is the product of a successful proceeding in which 
management, employee representatives and the Federal government were 
fully involved from the beginning. That fact should be an encouragement 
to all concerned to realize that the success of an on-track safety 
program will require the willing cooperation of all persons whose 
duties or personal safety are affected by the program.

7. On-track Safety Program Documents: Sec. 214.309

    Section 214.309 specifies the type of on-track safety manual each 
railroad

[[Page 10535]]
must have. Essentially, the railroad must have all on-track safety 
rules in one place, easily accessible to roadway workers. This 
provision is intended to provide the roadway worker with a single 
resource to consult for on-track safety, to avoid fragmentation of the 
rules and the ultimate dilution of their vital message.
    All on-track safety rules could be placed together as an on-track 
safety section of an already existent manual. FRA is aware that many 
railroads use a binder system for railroad manuals. Adding a section to 
such a binder might be less burdensome than creating a separate manual, 
and would clearly comply with this provision.
    An employer, such as a contractor, whose roadway workers work on 
another employer's railroad, will usually adopt and issue the on-track 
safety manual of that railroad for use by their employees. It will be 
the employer's responsibility to provide the manual to its employees 
who are required to have it and to know that each of its employees is 
knowledgeable about its contents.
    This section also sets forth the responsibility of the employer to 
provide this manual to all employees who are responsible for the on-
track safety of others, and those who are responsible for their own on-
track safety as lone workers. Workers who are responsible for the 
protection of others must have the manual at the work site for easy 
reference. Lone workers must also have this manual easily available to 
them. FRA does not intend that the individual must necessarily have 
this manual on his or her person while performing work, but to have it 
available and readily accessible at the work site.
    FRA also does not intend that all related operating rules, 
timetables or special instructions must be reproduced in this manual. 
Any related publications or documents should be cross-referenced in the 
On-Track Safety Manual and provided to employees whose duties require 
them.
    Lastly, the manual must be at the work site available for reference 
by all roadway workers. Many roadway workers will not be responsible 
for providing protection for themselves or others, but still must 
comply with the rules. All employees have a responsibility to remain at 
a safe distance from the track unless they are assured that adequate 
protection is provided. Although not responsible for providing 
protection for others, they must be familiar with the rules to 
determine whether adequate protection is provided and have the rules 
readily available if it is necessary to consult them.

8. Responsibility of Employers: Sec. 214.311

    Section 214.311 addresses the employer's responsibility in this 
rule. This section applies to all employers of roadway workers. 
Employers may be railroads, contractors to railroads, or railroads 
whose employees are working on other railroads. Although most on-track 
safety programs will be implemented by railroads rather than 
contractors, the employer is responsible to its employees to provide 
them with the means of achieving on-track safety.
    Railroads are specifically required by Sec. 214.303 to implement 
their own on-track safety programs. Section 214.311 however, places 
responsibility with all employers (whether they are railroads or 
contractors) to see that employees are trained and supervised to work 
with the on-track safety rules in effect at the work site. The actual 
training and supervision of contractor employees might be undertaken by 
the operating railroad, but the responsibility to see that it is done 
rests with the employer.
    The guarantee required in paragraph (b) of an employee's absolute 
right to challenge on-track safety rules compliance will be a required 
part of each railroads's on-track safety program, as will be the 
process for resolution of such challenges. On-track safety depends upon 
the faithful and intelligent discharge of duty by all persons who 
protect or are protected by it. Any roadway worker who is in doubt 
concerning the on-track safety provisions being applied at the job 
location should resolve that uncertainty immediately.
    The term at the job location is not meant to restrict who can raise 
an issue or where an issue can be raised. Rather, the challenge must 
address the on-track safety procedures being applied at a particular 
job location.
    A fundamental principle of on-track safety is that a roadway worker 
who is not entirely certain that it is safe to be on the track should 
not be there. A discrepancy might be critical to the safety of others, 
and the first roadway worker who detects it should take the necessary 
action to provide for the safety of all.
    The Advisory Committee used the term No-Fault Right in its report 
to describe the absolute right of each employee to challenge, without 
censure, punishment, harm or loss, the on-track safety compliance 
expressed in paragraph (b) of this section. A challenge must be made in 
good faith in order to fall within the purview of this rule. A good 
faith challenge would trigger the resolution process called for in 
paragraph (c).
    The written process to resolve challenges found in paragraph ( c) 
is intended to provide a prompt and equitable resolution of these 
concerns. This is necessary in order that any problems that arise 
regarding on-track safety should be resolved and that any possible 
lapses in safety be quickly corrected.
    The resolution process should include provisions to permit 
determination by all parties as to the safe, effective application of 
the on-track safety rule(s) being challenged at the lowest level 
possible, and for successive levels of review in the event of inability 
to resolve a concern at lower levels. FRA believes it best for 
employers, consulting with employees and their representatives where 
applicable, to write effective processes to accomplish these 
objectives.
    A railroad's on-track safety program will be reviewed and approved 
in accordance with section 214.307(b). FRA will consider this written 
process during its review and approval of the overall on-track safety 
submission. FRA will consider whether the written processes afford a 
prompt and equitable resolution to concerns asserted in good faith and 
their effectiveness in promoting the intelligent, reasoned application 
of the on-track safety principles.

9. Responsibility of Individual Roadway Workers: Sec. 214.313

    Section 214.313 addresses the individual responsibility of each 
roadway worker. Each roadway worker has a responsibility to comply with 
this subpart which is enforceable under the provisions of individual 
liability. Paragraph (a) requires that each roadway worker follow the 
railroad's on-track safety rules. Paragraph (b) prohibits roadway 
workers from fouling a track unnecessarily. It is FRA's opinion, as 
well as that of the Advisory Committee, that roadway workers should 
under no circumstances foul a track unless it is necessary to 
accomplish their duties.
    A reference to the definition of fouling a track is useful to 
understand when protection is required. Fouling a track describes the 
circumstance in which a person is in danger of being struck by a moving 
train.
    Under paragraphs (c) and (d), each roadway worker has the 
responsibility to know that on-track safety is being provided before 
actually fouling a track, and to remain clear of the track and inform 
the employer when the required

[[Page 10536]]
level of protection is not provided. If a roadway worker is not sure 
that sufficient on-track safety is being provided, he or she can 
satisfy paragraph (c) by simply not fouling the track.
    It is a roadway worker's responsibility to advise the employer of 
exceptions taken to the application of a railroad's rules, or 
provisions of this subpart, in accordance with paragraph (d). Employees 
must approach this responsibility in good faith. Essentially an 
employee must have honest concerns whether the on-track safety 
procedures being used provide the necessary level of safety in 
accordance with the rules of the operating railroad. Furthermore, 
employees must be able to articulate those concerns in order to invoke 
the resolution process of the railroad. Initiating an action under the 
resolution process, absent a good faith concern regarding the on-track 
safety procedures being applied, would not be in compliance with this 
subpart.

10. Supervision and Communication: Sec. 214.315

    Section 214.315 details supervision and communication of on-track 
safety methods prior to working. Employees must be notified and 
acknowledge understanding of the on-track safety methods they are to 
use, prior to commencing duties on or near the track. Paragraphs (a) 
and (b) establish the duty of notification by the employer and the 
reciprocal duty of communicating acknowledgment by the employee. These 
sections essentially require a job briefing to inform all concerned of 
on-track safety methods at the beginning of each work period. The 
acknowledgment is an indication by the employee of understanding, or 
the opportunity to request explanation of any issues that are not 
understood.
    Paragraph (c) requires that an employer designate at least one 
roadway worker to provide on-track safety while a group is working 
together. This designation can either be for a specific job or for a 
particular work situation. This section is vital to the success of any 
on-track safety program because the mere presence of two or more 
persons together can be distracting for all persons involved. FRA 
believes that awareness will be enhanced and confusion limited by 
requiring railroads to formally designate a responsible person. This 
designation must be clearly understood by all group members in order to 
be effective. An individual, such as a foreman, may generally be 
designated to be responsible for his or her group, but if two groups 
are working together or roadway workers of different crafts are 
assisting one another, it is imperative that this formal designation be 
communicated to and understood by all affected employees.
    Paragraph (d) explains the duties of the roadway worker designated 
to provide on-track safety for the work group. Before roadway workers 
foul a track, the designated person must inform each roadway worker in 
the group of the on-track safety methods to be used at that time and 
location. Essentially, the designated person must conduct an on-track 
safety briefing prior to the beginning of work on or near the track. 
This briefing might also fulfill the requirements of paragraph (a) of 
this section.
    Before changing on-track safety methods during a work period, the 
designated roadway worker must again inform the group of the new 
methods to be used for their safety. If, for example, roadway workers 
are working on a track within working limits when the on-track safety 
method changes to train approach warning, all roadway workers fouling 
the track must first be informed that trains might approach on that 
track, and that they will be warned of the approaching train by 
watchmen/lookouts. They must also know that they can no longer depend 
on that track as a place of safety when a train approaches.
    This provision also establishes methods to be used in the face of 
unforeseen circumstances. In these emergency situations, where 
notification of a change in methods cannot be accomplished, an 
immediate warning to leave the fouling space and not return until on-
track safety is reestablished is required.
    Paragraph (e) addresses the lone worker. The lone worker must also 
have a job briefing before fouling the track. This briefing will be 
slightly different, since the lone worker is not working under direct 
supervision. At the beginning of the duty period, and prior to fouling 
the track, the lone worker must communicate with a supervisor or 
another designated employee to advise of his itinerary and the means by 
which he plans to protect himself. This briefing should include his 
geographical location, approximate period of time he is expected to be 
in this general locality, different locations planned for the day, and 
the planned method of protection. This paragraph assumes that in 
accordance with other sections, the lone worker is capable of 
determining the proper means to achieve his own on-track safety.
    This paragraph also provides for emergencies in which the channels 
of communication are disabled. In those cases, the briefing must be 
conducted as soon as possible after communication is restored. An 
interruption in communication does not prevent the lone worker from 
commencing work. However, since the lone worker will not have described 
his itinerary and the on-track safety methods to be used in this 
location to another qualified employee, he must do all that is 
necessary to maintain the requisite awareness of his surroundings.

11. On-track Safety Procedures, Generally: Sec. 214.317

    Section 214.317 refers to the following sections 214.319 through 
214.335 that prescribe several different types of procedures that may 
be used to achieve on-track safety. It requires employers to use one or 
more of these types of procedures whenever employees foul a track.
    The definition of fouling a track includes a minimum distance limit 
of four feet from the field, or outer, side of the running rail nearest 
to the roadway worker. A person could be outside that distance and 
still be fouling the track under this rule if the person's expected or 
potential activities or surroundings could cause movement into the 
space that would be occupied by a train, or if components of a moving 
train could extend outside the four-foot zone.
    Railroad equipment is commonly 10 feet 8 inches wide. Standard 
track gauge is 4 feet 8\1/2\ inches but when adding the nominal width 
of the rail, the rail spacing can be taken as 5 feet 0 inches for the 
purposes of this rule. The fouling space would therefore be 13 feet 
wide (5+4+4 feet).
    One exception to the four-foot minimum distance is found in 
paragraph Sec. 214.339(c) (Roadway maintenance machines) and is 
discussed in the analysis of that section.
    The report of the Advisory Committee includes the statement that 
``The provisions of restricted speed do not solely provide protection 
for track equipment, or roadway workers, performing maintenance.'' The 
rule does not recognize restricted speed as a sole means of providing 
on-track safety.
    The Advisory Committee also found, and FRA agrees, that although 
the definitions of ``restricted speed'' found in this rule and in use 
throughout the railroad industry provide adequate separation between 
trains and on-track machines in a traveling mode, a blanket provision 
that would rely upon restricted speed to protect persons working while 
fouling the track would not be effective. Individual locations at which 
unusual circumstances could result in sufficient protection for

[[Page 10537]]
roadway workers from trains moving at restricted speed would be 
addressed by FRA through the waiver process.

12. Working Limits, Generally: Sec. 214.319

    Section 214.319 prescribes the general requirements for the 
establishment of working limits. A reference to the definition of 
Working Limits is helpful to the understanding of this section.
    Working limits is an on-track safety measure which when established 
eliminates the risk of being struck by trains. Several methods of 
establishing working limits are found in this subpart. Those methods 
are distinguished by the method by which trains are authorized to move 
on a track segment, the physical characteristics of the track, and the 
operating rules of the railroad.
    Paragraphs (a) and (b) specifically refer to the roadway worker who 
is given control over working limits. These requirements assure that 
the roadway worker has the requisite knowledge and training, and 
prevent confusion by giving control to only one qualified roadway 
worker.
    Paragraph (c) provides the restrictions under which trains and 
roadway maintenance machines will be allowed to operate within working 
limits. The intent is that the roadway worker in charge will be able to 
communicate with a train while it is within the working limits, and to 
control its movement to prevent conflicts between trains, machines and 
roadway workers.
    The requirement that trains move at restricted speed in working 
limits unless otherwise authorized by the roadway worker in charge is 
intended as a fail-safe provision to afford the highest level of safety 
in the absence of authority for higher speed. FRA does not contemplate, 
nor would it condone, a situation in which a roadway worker could 
authorize a higher speed for a train than would be otherwise permitted 
by the operating rules and instructions of the railroad.
    Paragraph (d) addresses the procedure when working limits are 
released. It requires that all affected roadway workers be notified 
before trains will begin moving over the affected track. They must be 
either away from the track, or provided with another form of on-track 
safety.
    An example is a work group using a crane to replace rail. Rails are 
removed from the track, the crane is on the track, and on-track safety 
is provided by the establishment of working limits. When the rails have 
been replaced, the crane moves out of the working limits onto another 
track, the roadway worker in charge stations watchmen/lookouts to 
provide train approach warning and notifies all the roadway workers at 
the work site that train approach warning is now in effect and the 
working limits are to be released. The roadway worker in charge then 
releases the working limits to the train dispatcher to permit the 
movement of trains. The roadway workers at the work site continue to 
work with hand tools while on-track safety is provided by the watchmen/
lookouts.

13. Exclusive Track Occupancy: Sec. 214.321

    Section 214.321 prescribes working limits on controlled track as 
one form of on-track safety allowed in accordance with the provisions 
of this subpart. Reference to the definitions of Controlled Track and 
Exclusive Track Occupancy are helpful to the understanding of this 
section.
    Controlled track is track on which trains may not move without 
authorization from a train dispatcher or a control operator. On most 
railroads, trains move on main tracks outside of yard limits, and 
through interlockings, only when specifically authorized by a train 
dispatcher or control operator. This authorization might take the form 
of an indication conveyed by a fixed signal, or a movement authority 
transmitted in writing, orally, or by digital means. Such track would 
conform to the definition of controlled track.
    Some railroads extend the control of a train dispatcher to main 
tracks within yard limits. This control is exercised by requiring the 
crew of every train and engine to obtain a track warrant specifying the 
limits of the territory in which the crew may operate. The track 
warrant lists all restrictions that are in effect within the limits 
specified, including any working limits established to protect roadway 
workers or train movements. The working limits are delineated by flags 
as specified in section 214.321(c)(5). Track from which trains can be 
effectively withheld by such a procedure would conform to the 
definition of controlled track.
    Exclusive track occupancy is the means prescribed in this section 
to establish working limits on controlled track. The procedures 
associated in this section with exclusive track occupancy are intended 
to assure that unauthorized train movements will not occur within 
working limits established by exclusive track occupancy.
    This section addresses controlled track, as it is the type of track 
upon which exclusive track occupancy can be established by the 
dispatcher or control operator. By virtue of their authority to control 
train movements on a segment of controlled track, a dispatcher or 
control operator can also hold trains clear of that segment by 
withholding movement authority from all trains. The procedure depends 
upon communication of precise information between the train dispatcher 
or control operator, the roadway worker in charge of the working 
limits, and the crews of affected trains. This section is intended to 
prescribe that level of precision.
    Paragraph (a) requires that authority for exclusive track occupancy 
may only be granted by the train dispatcher or control operator who has 
control of that track to a roadway worker who has been trained and 
designated to hold such an authority. No other person may be in control 
of the same track at the same time.
    Paragraph (b) and corresponding subparagraphs prescribe the methods 
for transferring the authority for exclusive track occupancy to the 
roadway worker with the requisite level of accuracy.
    Paragraph (c) and corresponding subparagraphs prescribe physical 
markers or features that may be used to indicate the extent of working 
limits established under this paragraph with the requisite level of 
precision. Flagmen are included as a valid means of establishing 
exclusive track occupancy because they are effective, and they might be 
the only means available on short notice or at certain locations.

14. Foul Time: Sec. 214.323

    Section 214.323 prescribes another form of on-track safety 
involving the establishment of working limits through exclusive track 
occupancy. This method of protection is called foul time and is only 
prescribed for use on controlled track. The definition of foul time 
should be referenced for a complete understanding of this concept. Foul 
time requires oral or written notification by the train dispatcher or 
control operator to the responsible roadway worker that no trains will 
be operating within a specific segment of track during a specific time 
period. The steps to obtain foul time are detailed in this section. 
Once foul time is given, a dispatcher or control operator may not 
permit the movement of trains onto the protected track segment until 
the responsible roadway worker reports clear.

15. Inaccessible Track: Sec. 214.325

    Section 214.325 requires that working limits on non-controlled 
track be established by rendering the track physically inaccessible to 
trains and equipment. A reference to the definitions of non-controlled 
track and inaccessible track is useful to the

[[Page 10538]]
understanding of this section. Trains and equipment can operate on non-
controlled track without having first received specific authority to do 
so. Trains and equipment cannot be held clear of non-controlled track 
by simply withholding their movement authority. The roadway worker in 
charge of the working limits must therefore render non-controlled track 
within working limits physically inaccessible to trains and equipment, 
other than those operating under the authority of that roadway worker, 
by using one or more of the provisions of this section.
    Typical examples of non-controlled track to which this section 
would apply include main tracks within yard limits where trains are 
authorized by an operating rule to move without further specific 
authority, yard tracks, and industrial side tracks. Paragraphs (a) 
through (d) detail the physical features that may be used to block 
access to non-controlled track within working limits.

16. Train Approach Warning Provided by Watchmen/Lookouts: Sec. 214.327

    Section 214.327 establishes the procedures for on track safety of 
groups that utilize train approach warning. A reference to the 
definition of train approach warning would be useful to the 
understanding of this section. Section 214.327 specifies the 
circumstances and the manner in which roadway work groups may use this 
method of on-track safety. Prescribed here is the minimum amount of 
time for roadway workers to retreat to a previously arranged place of 
safety, the duties of the watchman/lookout and the fundamental 
characteristics of train approach warning communication.
    This section further imposes a duty upon the employer to provide 
the watchman/lookout employee with the requisite equipment necessary to 
carry out his on-track safety duties. It is intended that a railroad's 
on-track safety program would specify the means to be used by watchmen/
lookouts to communicate a warning, and that they be equipped according 
to that provision.
    The rule does not include a provision for train approach warning by 
any means other than the use of watchmen/lookouts. FRA is not aware of 
any other means of effectively performing this function with the 
requisite reliability, and will not place requirements for an untried 
system in this rule. However, the Advisory Committee report states that 
``FRA will incorporate a near-term time-specific requirement to utilize 
on-track personal warning systems for roadway workers working alone 
under any conditions not requiring positive protection.'' FRA realizes 
that the technological advancements incorporated in ATCS, PTC or PTS 
might in the future provide another method of establishing on-track 
safety in compliance with this subpart. Although such technology is not 
specifically provided for in the current rule. Opportunities to employ 
advancements in this area will be handled pursuant to the waiver 
process. FRA will therefore be most interested in knowing when such 
systems are developed, tested, and proven reliable.

17. Definite Train Location: Sec. 214.329

    Section 214.329 describes a system of on-track safety which 
provides roadway workers with information as to the earliest times at 
which trains may leave certain stations, having been restricted at 
those stations by the train dispatcher or control operator. This form 
of on-track safety is called Definite Train Location. A reference to 
its definition is helpful to distinguish it from an informational 
lineup of trains, which is addressed in Sec. 214.331.
    Paragraph (a) limits the use of definite train location for on-
track safety by Class I railroads to track where such a system was 
already in use on the effective date of this rule.
    Paragraph (b) requires that a Class I railroad using a definite 
train location system must phase it out according to a schedule 
submitted to FRA with that railroad's on-track safety program.
    Paragraph (c) establishes that definite train location can be used 
on certain subdivisions owned by railroads other than Class I railroads 
under certain specified conditions. These conditions include whether 
the system was in use before the effective date of this rule, or 
whether the subdivision has railroad traffic density below certain 
levels specified in that section during periods when roadway workers 
are normally on and about the track. Advisory Committee members felt 
that the amount and frequency of the traffic on a particular track 
dictated whether this form of on-track safety was feasible. FRA 
therefore proposes to incorporate this factor into the rule to allow 
some short lines and regional railroads to utilize this system.
    Paragraph (d) and corresponding subparagraphs (1) through (6) set 
forth the requirements for a definite train location system and the 
qualifications that a roadway worker must have before using this system 
as a form of on-track safety.

18. Informational Line-ups of Trains: Sec. 214.331

    Section 214.331 specifies conditions for the use of informational 
line-ups of trains. Some railroads have used a form of informational 
line-ups to provide on-track safety for roadway workers for many years. 
Such a procedure requires the roadway worker to have a full 
understanding of the particular procedure in use, and the physical 
characteristics of the territory in which they are working. The 
Advisory Committee addressed this issue with the following specific 
recommendation:

    The Committee realizes that line-ups are being used less as a 
form of protection in the industry and recommends that line-up use 
be further reduced, eventually discontinued and replaced with 
Positive Protection as quickly as feasible, grand fathering line-up 
systems presently in use. * * *

    Line-ups as used in this section differ from lists of trains in 
Sec. 214.329 in that line-ups need not include definite restriction as 
to the earliest times at which trains may depart stations. FRA 
therefore follows the Advisory Committee recommendation by allowing 
railroads presently using line-ups to continue doing so under 
conditions presently in effect, provided that their on-track safety 
programs that are reviewed and approved by FRA contain adequate 
provisions for safety, and a definite date for completion of phase-out.

19. On-track Safety Procedures for Roadway Work Groups: Sec. 214.333

    Section 214.333 specifies requirements for on-track safety to be 
provided for roadway work groups. Other sections of the regulation 
discuss matters affecting the group such as the different types of on-
track safety protection available to a group and the job briefing 
necessary for a group, but this section prescribes what procedures are 
required to fully comply with this subpart. The definition of roadway 
work group enables the distinction between general methods of providing 
on-track safety for groups and for individuals working alone. Examples 
of roadway work groups are a large or small track gang, a pair of 
signal maintainers, a welder and welder helper, and a survey party.
    Paragraph (a) indicates that employers shall not require or permit 
roadway work groups to foul a track unless they have established on-
track safety through working limits, train approach warning, or 
definite train location.
    The reciprocal responsibility for the roadway worker is expressed 
in Paragraph (b). He should not foul a track without having been 
informed by the roadway worker in charge that on-track safety is being 
provided.
    The concept of protecting roadway workers from the hazards of 
trains and

[[Page 10539]]
other on-track equipment on adjacent tracks is also important in this 
rule. A reference to the definition of adjacent tracks will clarify the 
meaning of paragraph (c) which details the conditions under which train 
approach warning must be used on adjacent tracks that are not within 
working limits. These are conditions in which the risk of distraction 
is significant, and which require measures to provide on-track safety 
on adjacent tracks.
    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. This issue was 
addressed in the report of the Advisory Committee with the 
recommendation:

    Before performing any work that requires Fouling the track or 
Adjacent Track(s) Positive Protection must be obtained and verified 
to be in effect by the roadway worker assigned responsibility for 
the work. 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, must have Positive 
Protection on Adjacent Tracks as well.

FRA will consider the provisions made for this situation when reviewing 
each railroad's on-track safety program.
    The spacing of less than 25 feet between track centers, which 
defines adjacent tracks for the purpose of this rule, represents a 
consensus decision of the Advisory Committee. Several railroads have 
recently extended their lateral track spacing to 25 feet. Tracks spaced 
at that distance may not cause a hazard to employees in one track from 
trains and equipment moving on the other track. FRA believes that no 
purpose would be served by requiring these tracks to be again spaced at 
a slightly greater distance. Therefore, tracks spaced at 25 feet are 
not defined as adjacent tracks, but tracks spaced at a lesser distance 
will be so defined. Tracks that converge or cross will be considered as 
adjacent tracks in the zone through which their centers are less than 
25 feet apart.
    As a practical matter, FRA will apply a rule of reason to the 
precision used in measuring track centers, so that minor alignment 
deviations within the limits of the Federal Track Safety Standards (49 
CFR 213) would not themselves place such short segments of track within 
the definition of adjacent tracks.

20. On-track Safety Procedures for Lone Workers: Sec. 214.335

    Section 214.335 establishes specific on-track safety procedures for 
the lone worker. Paragraph (a) sets forth the general requirement that 
restricts the use of individual train detection to circumstances 
prescribed in this section and the corresponding on-track safety 
program of the railroad.
    Paragraph (b) represents the clear consensus of the Advisory 
Committee that a decision to not use individual train detection should 
rest solely with the lone worker, and may not be reversed by any other 
person. On the other hand, improper use of individual train detection 
where this rule or the on-track safety program of the railroad prohibit 
it would be subject to review. This provision was stated by the 
Advisory Committee as part of its Specific Recommendation 3, which part 
reads, ``All roadway workers have the absolute right to obtain positive 
protection at any time and under any circumstances if they deem it 
necessary, or to be clear of the track if adequate protection is not 
provided.''
    Paragraph (c) establishes a method of on-track safety for the lone 
worker, in which the roadway worker is capable of visually detecting 
the approach of a train and moving to a previously determined location 
of safety at least 15 seconds before the train arrives. A reference to 
the definition of individual train detection is useful to understand 
this concept.
    It is important to note that the Advisory Committee decided that 
the use of individual train detection is appropriate only in limited 
circumstances. FRA has therefore drafted this section to prescribe 
strictly limited circumstances in which an individual may foul a track 
outside of working limits while definitely able to detect the approach 
of a train or other on-track equipment in ample time to move to a place 
of safety. This safety method requires the lone worker to be in a state 
of heightened awareness, since no other protection system will be in 
place to prevent one from being struck by a train or other on-track 
equipment. The corresponding subparagraphs to paragraph (c) provide 
detailed requirements for the use of this form of on-track safety.
    Paragraph (f) prescribes the concept of a written Statement of On-
track safety, prepared by the lone roadway worker. The reasoning behind 
this requirement is to assist the roadway worker in focusing on the 
nature of the task, the risks associated with the task, and the form of 
on-track safety necessary to safely carry out assigned duties.

21. Audible Warning from Trains: Sec. 214.337

    Section 214.337 requires audible warning from locomotives before 
trains approach roadway workers. The implementation of this requirement 
will necessitate railroad rules regarding notification to trains that 
roadway workers are on or about the track. This notification could take 
the form of portable whistle posts, train movement authorities, or 
highly visible clothing to identify roadway workers and increase their 
visibility. This section is not optional with a railroad, and FRA 
intends that it will preempt any local restrictions on the sounding of 
locomotive whistles.

22. Roadway Maintenance Machines: Sec. 214.339

    Section 214.339 addresses specific issues concerning roadway 
maintenance machines that need to be included in individual railroad 
program submissions. FRA decided to address the hazards associated with 
these machines separately from those associated with trains, as the 
nature of the hazard is different. Referencing the definition of this 
term is a good place to start to understand this section. Roadway 
maintenance machines are devices, the characteristics or use of which 
are unique to the railroad environment. The term includes both on-track 
and off-track machines. A roadway maintenance machine need not have a 
position for the operator on the machine nor need it have an operator 
at all; it could operate automatically, or semi-automatically.
    This provision excludes hand-powered devices in order to 
distinguish between hand tools which are essentially portable, and 
devices which either are larger, move faster, or produce more noise 
than hand tools. Hand-held power tools are not included in the 
definition, but because of the noise they produce, and because of the 
attention that must be paid to their safe operation they are addressed 
specifically in Sec. 214.335, On-track safety for lone workers.
    Examples of devices covered by this section include, but are not 
limited to, crawler and wheel tractors operated near railroad tracks, 
track motor cars, ballast regulators, self-propelled tampers, hand-
carried tampers with remote power units, powered cranes of all types, 
highway-rail cars and trucks while on or near tracks, snow plows-self 
propelled and pushed by locomotives, spreader-ditcher cars, locomotive

[[Page 10540]]
cranes, electric welders, electric generators, air compressors--on-
track and off-track.
    Roadway maintenance machines have a wide variety of configurations 
and characteristics, and new types are being developed regularly. Each 
type presents unique hazards and necessitates unique accident 
prevention measures. Despite the wide diversity of the subject matter, 
FRA attempted to provide some guidance for the establishment of on-
track safety when using roadway maintenance machines.
    FRA believes that it is most effective to promulgate a general 
requirement for on-track safety around roadway maintenance machines, 
and require that the details be provided by railroad management, 
conferring with their employees, and industry suppliers. Several 
railroads have adopted comprehensive rules that accommodate present and 
future machine types, as well as their own operating requirements. FRA 
has seen the text of such rules, as well as witnessed their application 
and believes that they can set examples for other railroads. The 
requirement for issuance of on-track safety procedures for various 
types of roadway maintenance machines may be met by general procedures 
that apply to a group of various machines, supplemented wherever 
necessary by any specific requirements associated with particular types 
or models of machines.

23. Training and Qualification, General: Sec. 214.341

    Section 214.341 requires that each roadway worker be given on-track 
safety training once every calendar year. Adequate training is integral 
to any safety program. Hazards exist along a railroad, not all of which 
are obvious through the application of common sense without experience 
or training. An employee who has not been trained to protect against 
those hazards presents a significant risk to both himself and others.
    Roadway workers can be qualified to perform various duties, based 
on their training and demonstrated knowledge. Training will vary 
depending on the designation of a roadway worker. Furthermore, roadway 
workers should generally know the designations of others in their 
group, so that proper on-track safety protection arrangements can be 
made. Written or electronic records must be kept of these 
qualifications, available for inspection and copying by the 
Administrator.
    The term ``demonstrated proficiency'' is used in this and other 
sections relative to employee qualification in a broad sense to mean 
that the employee being qualified would show to the employer sufficient 
understanding of the subject that the employee can perform the duties 
for which qualification is conferred in a safe manner. Proficiency may 
be demonstrated by successful completion of a written or oral 
examination, an interactive training program using a computer, a 
practical demonstration of understanding and ability, or an appropriate 
combination of these in accordance with the requirements of this 
subpart.

24. Training for All Roadway Workers: Sec. 214.343

    Section 214.343 represents the basic level of training required of 
all roadway workers who work around moving railroad trains and on-track 
equipment. All persons subject to this rule must have this training. 
This basic level of training is required in addition to any specialized 
training required for particular functions called for in Secs. 214.345 
through 214.353. Any testing required to demonstrate qualification need 
not be written, because the requirements can be fulfilled by a 
practical demonstration of ability and understanding.

25. Training and Qualification for Lone Workers: Sec. 214.345

    Section 214.345 requires a higher degree of qualification, as the 
lone worker is fully responsible for his or her own protection.

26. Training and Qualification of Watchmen/lookouts: Sec. 214.347

    Section 214.347 details the standards for qualification of a 
lookout, who by definition is responsible for the protection of others. 
The definition of watchman/lookout is useful to understand the 
functions of roadway workers discussed in this section. Watchmen/
lookouts must be able to perform the proper actions in the most timely 
manner without any chance of error in order to provide proper 
protection for those who are placed in their care.

27. Training and Qualification of Flagmen: Sec. 214.349

    Section 214.349 requires that flagmen be qualified on the operating 
rules of the railroad on which they are working. Referencing the 
definition of flagman would be useful to identify the class of roadway 
workers discussed in this section. Generally, flagmen are already 
required to be qualified on the operating rules that apply to their 
work. Flagging is an exacting procedure, and a flagman must be ready to 
act properly at all times in order to provide proper protection for 
those under his care. The distinction between flagmen and watchmen/
lookouts should be noted, in that flagmen function to restrict or stop 
the movement of trains, while watchmen/lookouts detect the approach of 
trains and provide warning thereof to other roadway workers.

28. Training and Qualification of Roadway Workers Who Provide On-track 
Safety for Roadway Work Groups: Sec. 214.351

    Section 214.349 details training standards applicable to the 
roadway worker who is qualified to provide on-track safety for roadway 
work groups. This roadway worker has the most critical responsibilities 
under this subpart. This individual must be able to apply the proper 
on-track safety rules and procedures in various circumstances, to 
communicate with other railroad employees regarding on-track safety 
procedures, and to supervise other roadway workers in the performance 
of their on-track safety responsibilities.
    This section is unique in this subpart in requiring a recorded 
examination as part of the qualification process. This requirement 
reflects the additional responsibility of this position. The recorded 
examination might be written, or it might be, for example, a computer 
file with the results of an interactive training course.

29. Training and Qualification in On-track Safety for Operators of 
Roadway Maintenance Machines: Sec. 214.353

    Section 214.353 requires training for those roadway workers 
operating roadway maintenance machines. As noted earlier, there is a 
wide variety of equipment requiring specific knowledge. However, FRA 
determined that establishing minimum qualifications closely associated 
with the type of machine to be operated, and the circumstances and 
conditions under which it is to be operated, was necessary.

Environmental Impact

    FRA has evaluated these proposed regulations in accordance with its 
procedures for ensuring full consideration of the potential 
environmental impacts of FRA actions, as required by the National 
Environmental Policy Act (42 U.S.C. 4321 et seq) and related 
directives. These proposed regulations meet the criteria that establish 
this as a non-major action for environmental purposes.

[[Page 10541]]


Appendix

    FRA plans to revise Appendix A to Part 214.--Schedule of Civil 
Penalties, to include penalties for violations of the provisions of 
this Subpart to be included in the final rule. Because such penalty 
schedules are statements of policy, notice and comment are not required 
prior to their issuance. (see 5 U.S.C. 553(b)(3)(A)). Nevertheless, 
interested parties are welcome to submit their views on what penalties 
may be appropriate.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures. It is considered to be significant under both 
Executive Order 12866 and DOT policies an procedures (44 FR 11034; 
February 26, 1979). FRA has prepared and placed in the docket a 
regulatory analysis addressing the economic impact of the proposed 
rule. It may be inspected and photocopied at Office of Chief Counsel, 
Federal Railroad Administration, 400 Seventh Street, S.W., Room 8201, 
Washington, D.C. 20590. Photocopies may also be obtained by submitting 
a written request to the FRA Docket Clerk at the above address.
    Consistent with the mandate of Executive Order 12866 for regulatory 
reform, FRA conducted a Negotiated Rulemaking which provided the basis 
for this proposed rule. This collaborative effort included 
representatives from the railroad industry and railroad labor, along 
with an agency representative as members on a Federal Advisory 
Committee. This Advisory Committee held several negotiation sessions 
throughout the past year to reach consensus on the concepts that this 
proposed rule would embody. As envisioned by regulatory reform, public 
participation was encouraged by holding open Advisory Committee 
meetings. This negotiated Rulemaking's success has clearly met many of 
the objectives highlighted in this Executive Order.
    As part of the benefit-cost analysis the FRA has assessed 
quantitative measurements of costs and benefits expected from the 
adoption of the proposed rule. The Net Present Value (NPV) of the net 
benefits is 28.7 million. Over a ten year period, the NPV of the 
estimated quantifiable societal benefits is $252.6 million, and the NPV 
of the estimated societal quantified costs is $223.87 million.
    The NPV of major benefits anticipated from adopting the proposed 
rule include:
     $10 million from averted roadway worker injuries;
     $174 million from worker productivity increases that are a 
due to a safer working environment;
     $62 million from averted roadway workers fatalities (a 
statsitical estimation of 32.6 lives saved); and
     $1.5 million from the reduction in lost work days.
    The NPV of major costs (including estimated paperwork burdens) over 
the ten year period expected to accrue from adopting the proposed rule 
include:
     $26 million for additional dispatching resources;
     $47 million for watchmen/lookouts;
     $22 million for miscellaneous forms of positive 
protection;
     $63 million for job briefings; and
     $53 million for the various types of roadway training.
    Sections 8.0--10.0 of this analysis outline the above findings in 
greater detail. FRA anticipates significant other qualitative benefits 
accruing from the proposed rule which are not factored into the 
quantified benefit-cost analysis. These non-quantified benefits include 
a possible increase in the capacity or volume of some rail lines, and 
an improved employee morale.
    FRA's quantified cost estimate includes time alloted for daily job 
briefings. Many railroads currently conduct job briefings and others 
have alloted the time for such briefings. FRA contends that the 
proposed rule will structure time already alloted or spent in job 
briefings. Although FRA considered this 2 minute briefing a cost and 
included it within the quantified benefit-cost calculations, it is 
conceivable that structuring the existing job briefing time actually 
means no additional cost. The job briefing requirement essentially 
mandates a more efficient use of already allotted time.
    With respect to the quantified benefits anticipated, expected 
savings from a one percent increase in workplace productivity was 
included. FRA estimates that productivity of roadway workers should 
increase because adoption of the proposed rule will decrease the amount 
of risk that exists in their work environment. This is especially true 
in certain work areas where the risk is the highest such as within 
interlocking limits. Individual worker productivity should increase 
since there will be less time and concentration being focused on 
whether a train is approaching. The requirements for positive 
protection in this rule will provide this mental and physical relief in 
numerous roadway work situations. The productivity increases will be 
reflected in less time needed to complete work that will be performed 
on or near the track. FRA estimates that a one percent increase in rail 
workplace productivity, or less than 5 minutes per day, is a reasonable 
and conservative estimate.
    FRA's sensitivity assessment conducted as part of this regulatory 
impact analysis (see Section 14.0) calculates a three percent increase 
in productivity as well. If a three percent productivity is achieved as 
a result of this rulemaking the expected quantified benefits would 
increase to a NPV of $600.1 million. The sensitivity assessment also 
shows estimated benefits given an assumption of no increased 
productivity. FRA does not believe this is a reasonable assumption. If 
productivity did not increase at all as a result of this rule and the 
other non-quantified benefits discussed above are not considered then 
the benefits would be reduced by a NPV of $174 million.
    FRA also conducted sensitivity assessments on key components of the 
cost estimates. The cost estimates were sensitive to assumptions about 
the incremental time for job briefings (including the proportion of 
briefings that take place during ``down time'') and the number of 
additional employee years necessary to comply with the proposal. Under 
alternative assumptions regarding these parameters, the discounted 10-
year cost estimates range from $187 million to $338 million.
    FRA's regulatory impact analysis finds the proposed rule to be cost 
beneficial (greater benefits than costs), and further identifies 
substantial qualitative benefits. The recommendation of the Roadway 
Worker Safety Federal Advisory Committee that the FRA adopt the 
proposed rule reflects the consensus of the rail labor and management 
representatives on the committee that the proposed rule is beneficial.
    As previously noted, FRA is allowing 60 days for comments and 
invites public comment on the issue of regulatory impact. FRA seeks 
comment and or data to help identify or quantify other factors that may 
affect the benefits or costs of the proposal, including alternatives 
that were not explored by the advisory committee and any costs or 
benefits associated with such alternatives. FRA specifically invites 
comments from contractors and tourist railroads on regulatory impact, 
since they were not members of the Advisory Committee. Comments 
received after May 13, 1996 will be considered to the extent possible

[[Page 10542]]
without incurring additional expense or delay. In addition, a public 
hearing will be scheduled only if requested by April 15, 1996. It 
should be noted that a final rule may change based on comments 
received. However, FRA will take the appropriate prompt action at the 
close of the comment period.

Federalism Implications

    This proposed rule has been analyzed in accordance with the 
principles of Executive Order 12612 (``Federalism''). As noted 
previously, there are potential preemption issues resulting from a 
provision of this proposed rule, requiring audible warning before 
entering worksites. Various States and local authorities have ``whistle 
bans'' preventing railroads from sounding whistles or ringing 
locomotive bells while operating through those communities. FRA 
acknowledges an impact on scattered States and localities throughout 
the country, depending on the time of day and the frequency with which 
track maintenance occurs. However, these measures are necessary to 
protect roadway workers from possible death and injury. Sufficient 
Federalism implications have been identified to warrant the preparation 
of a Federalism Assessment and it has been placed in the docket. It may 
be inspected and photocopied at Office of Chief Counsel, Federal 
Railroad Administration, 400 Seventh Street, S.W., Room 8201, 
Washington, D.C. 20590. Photocopies may also be obtained by submitting 
written requests to the FRA Docket Clerk at the above address.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of proposed rules to assess their impact on small 
entities. In reviewing the economic impact of the proposed rule, FRA 
has concluded that it will have a moderate economic impact on small 
entities. There are no direct or indirect adverse economic impacts for 
small units of government, businesses, or other organizations.

Paperwork Reduction Act

    The proposed rule contains information collection requirements. FRA 
will submit these information collection requirements to the Office of 
Management and Budget for review and approval in accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.). FRA has 
endeavored to keep the burden associated with this proposal as simple 
and minimal as possible. The proposed sections that contain information 
collection requirements and the estimated time to fulfill each 
requirement are as follows:

------------------------------------------------------------------------
 Proposed                                                               
 section          Brief description            Estimated average time   
------------------------------------------------------------------------
214.303..  Railroad On-Track Safety        2,000 hrs. Class I.          
            Programs.                                                   
214.309..  ..............................  1,400 hrs. Class II.         
214.337..  ..............................  250 hrs. Class III.          
214.307..  ..............................  3,500 hrs. Blanket Class II. 
214.311..  ..............................  3,000 hrs. Blanket Class III.
214.329..                                                               
214.313..  Responsibility of Individual    4 hrs.                       
            Road Workers.                                               
214.315..  Supervision and                 2 minutes.                   
            Communications--Job Briefings.                              
214.333..                                                               
214.319..  Working Limits................  Usual & Customary Procedure--
                                            No new paperwork.           
214.321..  Exclusive Track Occupancy--     40 seconds.                  
            Working Limits Authorities.                                 
214.323..  Foul Time Working Limit         Usual & Customary Procedure--
            Procedures.                     No new paperwork.           
214.325..  Inaccessible Track............  10 minutes.                  
214.327..  Train Approach Warning          15 seconds.                  
            Provided by Watchman/Lookouts.                              
214.335..  On-Track Safety Procedures for  30 seconds.                  
            Lone Workers.                                               
214.339..  Training Requirements--Record   2 minutes.                   
            of Qualifications.                                          
214.343..                                                               
214.345..                                                               
214.347..                                                               
214.349..                                                               
214.351..                                                               
------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. FRA solicits comments on the 
accuracy of the estimates, the practical utility of the information, 
and alternative methods that might be less burdensome to obtain this 
information. Persons desiring to comment on this topic should submit 
their views in writing to Gloria D. Swanson, Federal Railroad 
Administration, 400 Seventh Street, S.W., Washington D.C. 20590; and to 
the Office and Regulatory Affairs, Office of Management and Budget, 
Attention: Desk Officer (DOT/FRA), New Executive Office Bldg., 726 
Jackson Place, N.W., Washington, D.C. 20530. Copies of any such 
comments should also be submitted to the docket of this rulemaking at 
the address provided above.

List of Subjects in 49 CFR Part 214

    Bridges, Occupational safety and health, Penalties, Railroad 
safety, Reporting and recordkeeping requirements.

The Proposed Rule

    In consideration of the foregoing, FRA proposes to amend Part 214, 
Title 49, Code of Federal Regulations as follows:

PART 214--[AMENDED]

    1. Revise the authority citation for Part 214 to read as follows:
    Authority: 49 U.S.C. Chs. 210-213; 49 CFR 1.49.

    2. Amend Sec. 214.7 by removing the paragraph designations for each 
definition, removing the definition for Railroad employee or employee, 
and adding new definitions in alphabetical order to read as follows:


Sec. 214.7  Definitions.

    Adjacent tracks mean two or more tracks with track centers spaced 
less than 25 feet apart.
 * * * * *
    Class I, Class II, and Class III have the meaning assigned by, 
Title 49 CFR part 1201, General Instructions 1-1.
 * * * * *
    Control operator means the railroad employee in charge of a 
remotely controlled switch or derail, an interlocking, or a controlled 
point, or a segment of controlled track.
    Controlled track means 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.
 * * * * *
    Definite train location means a system for establishing on-track 
safety by providing roadway workers with information about the earliest 
possible time that approaching trains may pass specific locations as 
prescribed in Sec. 214.329.

[[Page 10543]]

    Effective securing device when used in relation to a manually 
operated switch or derail means one which is:
    (1) Vandal resistant;
    (2) Tamper resistant; and
    (3) Designed to be applied, secured, uniquely tagged and removed 
only by the class, craft or group of employees for whom the protection 
is being provided.
    Employee means an individual who is engaged or compensated by a 
railroad or by a contractor to a railroad to perform any of the duties 
defined in this part.
    Employer means a railroad, or a contractor to a railroad, that 
directly engages or compensates individuals to perform any of the 
duties defined in this part.
* * * * *
    Exclusive track occupancy means a method of establishing working 
limits on controlled track in which movement authority of trains and 
other equipment is withheld by the train dispatcher or control 
operator, or restricted by flagmen, as prescribed in Sec. 214.321.
    Flagman, when used in relation to roadway worker safety, means an 
employee designated by the railroad to direct or restrict the movement 
of trains past a point on a track to provide on-track safety for 
roadway workers, while engaged solely in performing that function.
    Foul time is a method of establishing working limits on controlled 
track in which a roadway worker is notified by the train dispatcher or 
control operator that no trains will operate within a specific segment 
of controlled track until the roadway worker reports clear of the 
track, as prescribed in Sec. 214.323.
    Fouling a track means the placement of an individual or an item of 
equipment in such proximity to a track that the individual or equipment 
could be struck by a moving train or on-track equipment, or in any case 
is within four feet of the field side of the near running rail.
* * * * *
    Inaccessible track means a method of establishing working limits on 
non-controlled track by physically preventing entry and movement of 
trains and equipment.
    Individual train detection means a procedure by which a lone worker 
acquires on-track safety by seeing approaching trains and leaving the 
track before they arrive and which may be used only under circumstances 
strictly defined in this part.
    Informational line-up of trains means Information provided in a 
prescribed format to a roadway worker by the train dispatcher regarding 
movements of trains authorized or expected on a specific segment of 
track during a specific period of time.
* * * * *
    Lone worker means an individual roadway worker who is not being 
afforded on-track safety by another roadway worker, who is not a member 
of a roadway work group, and who is not engaged in a common task with 
another roadway worker.
* * * * *
    Non-controlled track means track upon which trains are permitted by 
railroad rule or special instruction to move without receiving 
authorization from a train dispatcher or control operator.
    On-track safety means 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.
* * * * *
    Qualified means a status attained by an employee who has 
successfully completed any required training for, has demonstrated 
proficiency in, and has been authorized by the employer to perform the 
duties of a particular position or function.
* * * * *
    Railroad bridge worker or bridge worker means any employee of, or 
employee of a contractor of, a railroad owning or responsible for the 
construction, inspection, testing, or maintenance of a bridge whose 
assigned duties, if performed on the bridge, include inspection, 
testing, maintenance, repair, construction, or reconstruction of the 
track, bridge structural members, operating mechanisms and water 
traffic control systems, or signal, communication, or train control 
systems integral to that bridge.
    Restricted speed means a speed that will permit a train or other 
equipment to stop within one-half the range of vision of the person 
operating the train or other equipment, but not exceeding 20 miles per 
hour, unless further restricted by the operating rules of the railroad.
    Roadway maintenance machine means a device powered by any means of 
energy other than hand power which is being used on or near railroad 
track for maintenance, repair, construction or inspection of track, 
bridges, roadway, signal, communications, or electric traction systems. 
Roadway maintenance machines may have road or rail wheels or may be 
stationary.
    Roadway work group means two or more roadway workers organized to 
work together on a common task.
    Roadway worker means any employee 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 as defined in this 
part.
* * * * *
    Train approach warning means a method of establishing on-track 
safety by warning roadway workers of the approach of trains in ample 
time for them to move to or remain in a place of safety in accordance 
with the requirements of this part.
    Train dispatcher means the railroad employee assigned to control 
and issue orders governing the movement of trains on a specific segment 
of railroad track in accordance with the operating rules of the 
railroad that apply to that segment of track.
    Watchman/lookout means an employee who has been annually trained 
and qualified to provide warning to roadway workers of approaching 
trains or on-track equipment. Watchmen/lookouts shall be properly 
equipped to provide visual and auditory warning such as whistle, air 
horn, white disk, red flag, lantern, fusee. A watchman/lookout's sole 
duty is to look out for approaching trains/on-track equipment and 
provide at least fifteen seconds advanced warning to employees before 
arrival of trains/on-track equipment.
    Working limits means a segment of track with definite boundaries 
established in accordance with this rule upon which trains and engines 
may move only as authorized by the roadway worker having control over 
that defined segment of track. Working limits may be established 
through ``exclusive track occupancy,'' ``inaccessible track,'' or 
``foul time'' as defined in this section.
    3. Add subpart C to read as follows:

Subpart C--Roadway Worker Protection

Sec.
214.301  Purpose and scope.
214.303  Railroad on-track safety programs, generally.
214.305  Effective dates.
214.307  Review and approval of individual on-track safety programs 
by FRA.
214.309  On-track safety program documents.
214.311  Responsibility of employers.
214.313  Responsibility of individual roadway workers.

[[Page 10544]]

214.315  Supervision and communication.
214.317  On-track safety procedures, generally.
214.319  Working limits, generally.
214.321  Exclusive track occupancy.
214.323  Foul time.
214.325  Inaccessible track.
214.327  Train approach warning provided by watchmen/lookouts.
214.329  Definite train location.
214.331  Informational line-ups of trains.
214.333  On-track safety procedures for roadway work groups.
214.335  On-track safety procedures for lone workers.
214.337  Audible warning from trains.
214.339  Roadway maintenance machines.
214.341  Training and qualification, general.
214.343  Training for all roadway workers.
214.345  Training and qualification for lone workers.
214.347  Training and qualification of watchmen/lookouts.
214.349  Training and qualification of flagmen.
214.351  Training and qualification of roadway workers who provide 
on-track safety for roadway work groups.
214.353  Training and qualification in on-track safety for operators 
of roadway maintenance machines.

Subpart C--Roadway Worker Protection


Sec. 214.301  Purpose and scope.

    (a) The purpose of this subpart is to prevent accidents and 
casualties caused by moving railroad cars, locomotives or roadway 
maintenance machines striking roadway workers or roadway maintenance 
machines.
    (b) This subpart prescribes minimum safety standards for roadway 
workers. Each railroad and railroad contractor may prescribe additional 
or more stringent operating rules, safety rules, and other special 
instructions that are consistent with this subpart.
    (c) This subpart prescribes safety standards related to the 
movement of roadway maintenance machines where such movements affect 
the safety of roadway workers. This subpart does not otherwise affect 
movements of roadway maintenance machines that are conducted under the 
authority of a train dispatcher, a control operator, or the operating 
rules of the railroad.


Sec. 214.303  Railroad on-track safety programs, generally.

    (a) Each railroad to which this part applies shall adopt and 
implement a program that will afford on-track safety to all roadway 
workers whose duties are performed on that railroad. Each such program 
shall provide for the levels of protection specified in this subpart.
    (b) Each on-track safety program adopted to comply with this part 
shall include procedures to be used by each railroad for monitoring 
effectiveness of and compliance with the program.


Sec. 214.305  Effective dates.

    Each program adopted by a railroad to comply with this Rule shall 
be effective not later than the date specified in the following 
schedule:
    (a) For each Class I railroad (including National Railroad 
Passenger Corporation) and each railroad providing commuter service in 
a metropolitan or suburban area, June 1, 1996.
    (b) For each Class II railroad, September 1, 1996.
    (c) For each Class III railroad, switching and terminal railroad, 
and any railroad not otherwise classified, December 1, 1996.
    (d) For each railroad commencing operations after the pertinent 
date specified in this paragraph, the date on which operations 
commence.


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

    (a) Each railroad shall notify the Associate Administrator for 
Safety, Federal Railroad Administration, RRS-15, 400 Seventh Street SW, 
Washington, DC 20590, not less than one month before its on-track 
safety program becomes effective. The notification shall include the 
effective date of the program, the address of the office at which the 
program documents are available for review by representatives of the 
Federal Railroad Administrator, and the name, title, address and 
telephone number of the primary person to be contacted with regard to 
review of the program.
    (b) After receipt of the notification from the railroad, the 
Federal Railroad Administration will conduct a formal review of the on-
track safety program. The Federal Railroad Administration will notify 
the primary railroad contact person of the results of the review, 
whether the on-track safety program has been approved by the 
Administrator, and if not approved, the specific points in which the 
program is deficient.
    (c) A railroad's on-track safety program will take effect by the 
date established in Sec. 214.305, without regard to the date of review 
or approval by the Federal Railroad Administration.


Sec. 214.309  On-track safety program documents.

    Rules and operating procedures governing track occupancy and 
protection shall be maintained together in one manual and be readily 
available to all roadway workers. Each roadway worker responsible for 
the on-track safety of others, and each lone worker, shall be provided 
with and shall maintain a copy of the program document.


Sec. 214.311  Responsibility of employers.

    (a) Each employer is responsible for the understanding and 
compliance by its employees with its rules and the requirements of this 
part.
    (b) Each employer shall guarantee each employee the absolute right 
to challenge in good faith whether the on-track safety procedures to be 
applied at the job location comply with the rules of the operating 
railroad, and to remain clear of the track until the challenge is 
resolved.
    (c) Each employer shall have in place a written procedure to 
achieve prompt and equitable resolution of challenges made in 
accordance with paragraph (b) of this section and Sec. 214.313(d).


Sec. 214.313  Responsibility of individual roadway workers.

    (a) Each roadway worker is responsible for following the on-track 
safety rules of the railroad upon which the roadway worker is located.
    (b) A roadway worker shall not foul a track except when necessary 
for the performance of duty.
    (c) Each roadway worker is responsible to ascertain that on-track 
safety is being provided before fouling a track.
    (d) Each roadway worker may refuse any directive to violate an on-
track safety rule, and shall inform the employer in accordance with 
Sec. 214.311 whenever the roadway worker makes a good faith 
determination that on-track safety provisions to be applied at the job 
location do not comply with the rules of the operating railroad.


Sec. 214.315  Supervision and communication.

    (a) When an employer assigns duties to a roadway worker that call 
for that employee to foul a track, the employer shall provide the 
employee with a job briefing that includes information on the means by 
which on-track safety is to be provided, and instruction on the on-
track safety procedures to be followed.
    (b) A job briefing for on-track safety shall be deemed complete 
only after the roadway worker has acknowledged understanding of the on-
track safety procedures and instructions presented.
    (c) Every roadway work group whose duties require fouling a track 
shall have one roadway worker designated by the employer to provide on-
track safety for all members of the group. The designated person shall 
be qualified under the rules of the railroad that conducts train 
operations on those

[[Page 10545]]
tracks to provide the protection necessary for on-track safety of each 
individual in the group. The responsible person may be designated 
generally, or specifically for a particular work situation.
    (d) Before any member of a roadway work group fouls a track, the 
designated person providing on-track safety for the group under 
paragraph (c) of this section shall inform each roadway worker of the 
on-track safety procedures to be used and followed during the 
performance of the work at that time and location. Each roadway worker 
shall again be so informed at any time the on-track safety procedures 
change during the work period. Such information shall be given to all 
roadway workers affected before the change is effective, except in 
cases of emergency. Any roadway workers who, because of an emergency, 
cannot be notified in advance shall be immediately warned to leave the 
fouling space and shall not return to the fouling space until on-track 
safety is re-established.
    (e) Each lone worker shall communicate at the beginning of each 
duty period with a supervisor or another designated employee to receive 
a job briefing and to advise of his or her planned itinerary and the 
procedures that he or she intends to use for on-track safety. When 
communication channels are disabled, the job briefing shall be 
conducted as soon as possible after the beginning of the work period 
when communications are restored.


Sec. 214.317  On-track safety procedures, generally.

    Each employer subject to the provisions of this part shall provide 
on-track safety for roadway workers by adopting a program that contains 
specific rules for protecting roadway workers that comply with the 
provisions of Secs. 214.319 through 214.335.


Sec. 214.319  Working limits, generally.

    Working limits established on controlled track shall conform to the 
provisions of Sec. 214.321 Exclusive track occupancy, or Sec. 214.323 
Foul time. Working limits established on non-controlled track shall 
conform to the provisions of Sec. 214.325 Inaccessible track. Working 
limits established under any procedure shall, in addition, conform to 
the following provisions:
    (a) Only a roadway worker who is qualified in accordance with 
Sec. 214.351 shall establish or have control over working limits for 
the purpose of establishing on-track safety.
    (b) Only one roadway worker shall have control over working limits 
on any one segment of track.
    (c) Movements of trains and roadway maintenance machines within 
working limits shall be made only under the direction of the roadway 
worker having control over the working limits. Such movements shall be 
at restricted speed unless a higher speed has been specifically 
authorized by the roadway worker in charge of the working limits.
    (d) All affected roadway workers shall be notified before working 
limits are released for the operation of trains. Working limits shall 
not be released until all affected roadway workers have either left the 
track or have been afforded on-track safety through train approach 
warning in accordance with Sec. 214.327.


Sec. 214.321  Exclusive track occupancy.

    Working limits established on controlled track through the use of 
exclusive track occupancy procedures shall comply with the following 
requirements:
    (a) The working limits shall be placed under the control of one 
roadway worker, who is designated in accordance with Sec. 214.351, by 
the train dispatcher or control operator in charge of the track.
    (b) The authority for exclusive track occupancy given to the 
roadway worker in charge of the working limits shall be transmitted on 
a written or printed document directly, by relay through a designated 
employee, in a data transmission, or by oral communication, to the 
roadway worker by the train dispatcher or control operator in charge of 
the track:
    (1) Where authority for exclusive track occupancy is transmitted 
orally, the authority shall be written as received by the roadway 
worker in charge and repeated to the issuing employee for verification.
    (2) The roadway worker in charge of the working limits shall 
maintain possession of the written or printed authority for exclusive 
track occupancy while the authority for the working limits is in 
effect.
    (3) The train dispatcher or control operator in charge of the track 
shall make a written or electronic record of all authorities issued to 
establish exclusive track occupancy.
    (c) The extent of working limits established through exclusive 
track occupancy shall be defined by one of the following physical 
features clearly identifiable to a locomotive engineer or other person 
operating a train or railroad equipment:
    (1) A flagman with instructions and capability to hold all trains 
and equipment clear of the working limits.
    (2) A fixed signal that displays an aspect indicating ``Stop''.
    (3) A station shown in the time-table, and identified by name with 
a sign, beyond which train movement is prohibited by train movement 
authority or the provisions of a direct train control system.
    (4) A clearly identifiable milepost beyond which train movement is 
prohibited by train movement authority or the provisions of a direct 
train control system.
    (5) A clearly identifiable physical location prescribed by the 
operating rules of the railroad which that trains may not pass without 
proper authority.


Sec. 214.323  Foul time.

    Working limits established on controlled track through the use of 
foul time procedures shall comply with the following requirements:
    (a) Foul time may be given orally or in writing by the train 
dispatcher or control operator only after that employee has withheld 
the authority of all trains to move into the working limits during the 
foul time period.
    (b) Each roadway worker to whom foul time is transmitted orally 
shall repeat the track number, track limits and time limits of the foul 
time to the issuing employee for verification before the foul time 
becomes effective.
    (c) Each roadway worker who obtains foul time shall first have been 
trained and qualified by the operating railroad to provide on-track 
safety to roadway work groups or as a lone worker.
    (d) The train dispatcher or control operator shall not permit the 
movement of trains or other on-track equipment onto the working limits 
protected by foul time until the roadway worker who obtained the foul 
time has reported clear of the track.


Sec. 214.325  Inaccessible track.

    Working limits on non-controlled track shall be established by 
rendering the track within working limits physically inaccessible to 
trains. No operable locomotives or other items of on-track equipment, 
except those moving under the direction of the roadway worker in 
charge, shall be located within working limits on non-controlled track. 
The extent of working limits established as inaccessible track shall be 
defined by one of the following physical features:
    (a) A flagman with instructions and capability to hold all trains 
and equipment clear of the working limits.
    (b) A switch or derail aligned to prevent access to the working 
limits and

[[Page 10546]]
secured with an effective securing device by the roadway worker in 
charge of the working limits.
    (c) A remotely controlled switch aligned to prevent access to the 
working limits and secured by the control operator of such remotely 
controlled switch by application of a locking or blocking device to the 
control of that switch, when:
    (1) The control operator has secured the remotely controlled switch 
by applying a locking or blocking device to the control of the switch; 
and
    (2) The control operator has notified the roadway worker who has 
established the working limits that the requested protection has been 
provided; and
    (3) The control operator is not permitted to remove the locking or 
blocking device from the control of the switch until receiving 
permission to do so from the roadway worker who established the working 
limits.
    (d) A discontinuity in the rail that precludes passage of trains or 
engines into the working limits.


Sec. 214.327  Train approach warning provided by watchmen/lookouts.

    Roadway workers in a roadway work group who foul any track outside 
of working limits shall be given warning of approaching trains and 
engines by one or more watchmen/lookouts in accordance with the 
following provisions:
    (a) Train approach warning shall be given in sufficient time to 
enable each roadway worker to move to and occupy a previously arranged 
place of safety not less than 15 seconds before a train moving at the 
maximum speed authorized on that track can pass the location of the 
roadway worker.
    (b) Watchmen/lookouts assigned to provide train approach warning 
shall devote full attention to detecting the approach of trains and 
communicating a warning thereof, and shall not be assigned any other 
duties while functioning as watchmen/lookouts.
    (c) The means used by a watchman/lookout to communicate a train 
approach warning shall be distinctive and shall clearly signify to all 
recipients of the warning that a train or other on-track equipment is 
approaching.
    (d) Every roadway worker who depends upon train approach warning 
for on-track safety shall maintain a position that will enable him or 
her to receive a train approach warning communicated by a watchman/
lookout at any time while on-track safety is provided by train approach 
warning.
    (e) Watchmen/lookouts shall communicate train approach warnings by 
a means that does not require a warned employee to be looking in any 
particular direction at the time of the warning, and that can be 
detected by the warned employee regardless of noise or distraction of 
work.
    (f) Every roadway worker who is assigned the duties of a watchman/
lookout shall first be trained, qualified and designated in writing by 
the employer to do so in accordance with the provisions of 
Sec. 214.345.
    (g) Every watchman/lookout shall be provided by the employer with 
the equipment necessary for compliance with the on-track safety duties 
which the watchman/lookout will perform.


Sec. 214.329  Definite train location.

    A roadway worker may establish on-track safety by using definite 
train location only where permitted by and in accordance with the 
following provisions:
    (a) A Class I railroad may only use definite train location to 
establish on-track safety at points where such procedures were in use 
on the effective date of the final rule.
    (b) Each Class I railroad shall include in its on-track safety 
program submitted to FRA in accordance with Sec. 214.307 a schedule for 
phase-out of the use of definite train location to establish on-track 
safety.
    (c) A railroad other than a Class I railroad may use definite train 
location to establish on-track safety on subdivisions only where:
    (1) such procedures were in use on the effective date of this rule; 
or
    (2) the number of trains operated on the subdivision does not 
exceed:
    (i) three during any nine-hour period in which roadway workers are 
on duty; and
    (ii) four during any twelve-hour period in which roadway workers 
are on duty.
    (d) Definite train location shall only be used to establish on-
track safety according to the following provisions:
    (1) Definite train location information shall be issued only by the 
one train dispatcher who is designated to authorize train movements 
over the track for which the information is provided.
    (2) A definite train location list shall indicate all trains to be 
operated on the track for which the list is provided, during the time 
for which the list is effective.
    (3) Trains not shown on the definite train location list shall not 
be operated on the track for which the list is provided, during the 
time for which the list is effective, until each roadway worker to whom 
the list has been issued has been notified of the train movement, has 
acknowledged the notification to the train dispatcher, and has canceled 
the list. A list thus canceled shall then be invalid for on-track 
safety.
    (4) Definite train location shall not be used to establish on-track 
safety within the limits of a manual interlocking, or on track over 
which train movements are governed by a Traffic Control System or by a 
Manual Block System.
    (5) Roadway workers using definite train location for on-track 
safety shall not foul a track within ten minutes before the earliest 
time that a train is due to depart the last station at which time is 
shown in approach to the roadway worker's location nor until that train 
has passed the location of the roadway worker.
    (6) A railroad shall not permit a train to depart a location 
designated in a definite train location list before the time shown 
therein.
    (7) Each roadway worker who uses definite train location to 
establish on-track safety must be qualified on the relevant physical 
characteristics of the territory for which the train location 
information is provided.


Sec. 214.331  Informational line-ups of trains.

    (a) A railroad is permitted to include informational line-ups of 
trains in its on-track safety program for use only on subdivisions of 
that railroad upon which such procedure was in effect on March 14, 
1996.
    (b) Each procedure for the use of informational line-ups of trains 
found in an on-track safety program shall include all provisions 
necessary to protect roadway workers using the procedure against being 
struck by trains or other on-track equipment.
    (c) Each on-track safety program that provides for the use of 
informational line-ups shall include a schedule for discontinuance of 
the procedure by a definite date.


Sec. 214.333  On-track safety procedures for roadway work groups.

    (a) No employer subject to the provisions of this part shall 
require or permit a roadway worker who is a member of a roadway work 
group to foul a track unless on-track safety is provided by either 
working limits, train approach warning, or definite train location in 
accordance with the applicable provisions of Secs. 214.319, 214.321, 
213.323, 214.325, 214.327, 214.329 and 214.331.
    (b) No roadway worker who is a member of a roadway work group shall 
foul a track without having been informed by the roadway worker 
responsible for the on-track safety of the

[[Page 10547]]
roadway work group that on-track safety is provided.
    (c) Roadway work groups engaged in large-scale maintenance or 
construction shall be provided with train approach warning in 
accordance with Sec. 214.327 on adjacent tracks that are not included 
within working limits.


Sec. 214.335  On-track safety procedures for lone workers.

    (a) A lone worker who fouls a track while performing routine 
inspection or minor correction may use individual train detection to 
establish on-track safety only where permitted by this section and the 
on-track safety program of the railroad.
    (b) A lone worker retains an absolute right to use on-track safety 
procedures other than individual train detection if he or she deems it 
necessary, and to occupy a place of safety until such other form of on-
track safety can be established.
    (c) Individual train detection may be used to establish on-track 
safety only:
    (1) by a lone worker who has been trained, qualified, and 
designated to do so by the employer in accordance with Sec. 214.345;
    (2) while performing routine inspection and minor correction work;
    (3) on track outside the limits of a manual interlocking, a 
controlled point, or a remotely controlled hump yard facility;
    (4) where the lone worker is able to visually detect the approach 
of a train moving at the maximum speed authorized on that track, and 
move to a previously determined place of safety, not less than 15 
seconds before the train would arrive at the location of the lone 
worker;
    (5) where no power-operated tools or roadway maintenance machines 
are in use within the hearing of the lone worker; and
    (6) where the ability of the lone worker to hear and see 
approaching trains and other on-track equipment is not impaired by 
background noise, lights, precipitation, fog, passing trains, or any 
other physical conditions.
    (d) The place of safety to be occupied by a lone worker upon the 
approach of a train may not be on a track, unless working limits are 
established on that track.
    (e) A lone worker using individual train detection for on-track 
safety while fouling a track may not occupy a position or engage in any 
activity that would interfere with that worker's ability to maintain a 
vigilant lookout for, and detect the approach of, a train moving in 
either direction as prescribed in this section.
    (f) A lone worker who uses individual train detection to establish 
on-track safety shall first complete a written Statement of On-track 
Safety. The Statement shall designate the limits of the track for which 
it is prepared and the date and time for which it is valid. The 
statement shall show the maximum authorized speed of trains within the 
limits for which it is prepared, and the sight distance that provides 
the required warning of approaching trains. The lone worker using 
individual train detection to establish on-track safety shall produce 
the Statement of On-track Safety when requested by a representative of 
the Federal Railroad Administrator.


Sec. 214.337  Audible warning from trains.

    Each railroad shall require that the locomotive whistle be sounded, 
and the locomotive bell be rung, by trains approaching roadway workers 
on or about the track. Such audible warning shall not substitute for 
on-track safety procedures prescribed in this part.


Sec. 214.339  Roadway maintenance machines.

    (a) Each employer shall include in its on-track safety program 
specific provisions for the safety of roadway workers who operate or 
work near roadway maintenance machines. Those provisions shall address:
    (1) Training and qualification of operators of roadway maintenance 
machines.
    (2) Establishment and issuance of safety procedures both for 
general application and for specific types of machines.
    (3) Communication between machine operators and roadway workers 
assigned to work near or on roadway maintenance machines.
    (4) Spacing between machines to prevent collisions.
    (5) Space between machines and roadway workers to prevent personal 
injury.
    (6) Maximum working and travel speeds for machines dependent upon 
weather, visibility, and stopping capabilities.
    (b) Instructions for the safe operation of each roadway machine 
shall be provided and maintained with each machine large enough to 
carry the instruction document:
    (1) No roadway worker shall operate a roadway maintenance machine 
without having been trained in accordance with Sec. 214.353.
    (2) No roadway worker shall operate a roadway maintenance machine 
without having complete knowledge of the safety instructions applicable 
to that machine.
    (3) No employer shall assign roadway workers to work near roadway 
machines unless the roadway worker has been informed of the safety 
procedures applicable to persons working near the roadway machines and 
has acknowledged full understanding.
    (c) Components of roadway maintenance machines shall be kept clear 
of trains passing on adjacent tracks. Where operating conditions permit 
roadway maintenance machines to be less than four feet from the rail of 
an adjacent track, the on-track safety program of the railroad shall 
include the procedural instructions necessary to provide adequate 
clearance between the machine and passing trains.


Sec. 214.341  Training and qualification, general.

    (a) No employer shall assign an employee to perform the duties of a 
roadway worker, and no employee shall accept such assignment, unless 
that employee has received training in the on-track safety procedures 
associated with the assignment to be performed, and that employee has 
demonstrated the ability to fulfill the responsibilities for on-track 
safety that are required of an individual roadway worker performing 
that assignment.
    (b) Each employer shall provide to all roadway workers in its 
employ initial or recurrent training once every calendar year on the 
on-track safety rules and procedures that they are required to follow.
    (c) Railroad employees other than roadway workers, who are 
associated with on-track safety procedures, and whose primary duties 
are concerned with the movement and protection of trains, shall be 
trained to perform their functions related to on-track safety through 
the training and qualification procedures prescribed by the operating 
railroad for the primary position of the employee, including 
maintenance of records and frequency of training.
    (d) Each employer of roadway workers shall maintain written or 
electronic records of each roadway worker qualification in effect. Each 
record shall include the name of the employee, the type of 
qualification made, and the most recent date of qualification. These 
records shall be kept available for inspection and copying by the 
Federal Railroad Administrator during regular business hours.


Sec. 214.343  Training for all roadway workers.

    The training of all roadway workers shall include, as a minimum, 
the following:

[[Page 10548]]

    (a) Recognition of railroad tracks and understanding of the space 
around them within which on-track safety is required.
    (b) The functions and responsibilities of various persons involved 
with on-track safety procedures.
    (c) Proper compliance with on-track safety instructions given by 
persons performing or responsible for on-track safety functions.
    (d) Signals given by watchmen/lookouts, and the proper procedures 
upon receiving a train approach warning from a lookout.
    (e) The hazards associated with working on or near railroad tracks, 
including review of on-track safety rules and procedures.


Sec. 214.345  Training and qualification for lone workers.

    Each lone worker shall be trained and qualified by the employer to 
establish on-track safety in accordance with the requirements of this 
section, and must be authorized to do so by the railroad that conducts 
train operations on those tracks.
    (a) The training and qualification for lone workers shall include, 
as a minimum, consideration of the following factors:
    (1) Detection of approaching trains and prompt movement to a place 
of safety upon their approach.
    (2) Determination of the distance along the track at which trains 
must be visible in order to provide the prescribed warning time.
    (3) The rules and procedures prescribed by the railroad for 
individual train detection, establishment of working limits, and 
definite train location.
    (4) The on-track safety procedures to be used in the territory on 
which the employee is be qualified and permitted to work alone.
    (b) Initial and periodic qualification of a lone worker shall be 
evidenced by demonstrated proficiency .


Sec. 214.347  Training and qualification of watchmen/lookouts.

    (a) The training and qualification for roadway workers assigned the 
duties of watchmen/lookouts shall include, as a minimum, consideration 
of the following factors:
    (1) The detection and recognition of approaching trains.
    (2) The effective warning of roadway workers of the approach of 
trains.
    (3) The determination of the distance along the track at which 
trains must be visible in order to provide the prescribed warning time.
    (4) The rules and procedures of the railroad to be used for train 
approach warning.
    (b) Initial and periodic qualification of a watchman/lookout shall 
be evidenced by demonstrated proficiency .


Sec. 214.349 Training and qualification of flagmen.

    (a) The training and qualification for roadway workers assigned the 
duties of flagmen shall include, as a minimum, the content and 
application of the operating rules of the railroad pertaining to giving 
proper stop signals to trains and holding trains clear of working 
limits.
    (b) Initial and periodic qualification of a flagman shall be 
evidenced by demonstrated proficiency .


Sec. 214.351  Training and qualification of roadway workers who provide 
on-track safety for roadway work groups.

    (a) The training and qualification of roadway workers who provide 
for the on-track safety of groups of roadway workers through 
establishment of working limits or the assignment and supervision of 
watchmen/lookouts or flagmen shall include, as a minimum:
    (1) All the on-track safety training and qualification required of 
the roadway workers to be supervised and protected.
    (2) The content and application of the operating rules of the 
railroad pertaining to the establishment of working limits.
    (3) The content and application of the rules of the railroad 
pertaining to the establishment or train approach warning.
    (4) The relevant physical characteristics of the territory of the 
railroad upon which the roadway worker is qualified.
    (b) Initial and periodic qualification of a roadway worker to 
provide on track safety for groups shall be evidenced by a recorded 
examination.


Sec. 214.353  Training and qualification in on-track safety for 
operators of roadway maintenance machines.

    (a) The training and qualification of roadway workers who operate 
roadway maintenance machines shall include, as a minimum:
    (1) Procedures to prevent a person from being struck by the machine 
when the machine is in motion or operation.
    (2) Procedures to prevent any part of the machine from being struck 
by a train or other equipment on another track.
    (3) Procedures to provide for stopping the machine short of other 
machines or obstructions on the track.
    (4) Methods to determine safe operating procedures for each machine 
that the operator is expected to operate.
    (b) Initial and periodic qualification of a roadway worker to 
operate roadway maintenance machines shall be evidenced by demonstrated 
proficiency.

    Issued this 11th Day of March, 1996.
Jolene M. Molitoris,
Administrator. Federal Railroad Administration
[FR Doc. 96-6175 Filed 3-12-96; 8:45 am]
BILLING CODE 4910-06-P