[Federal Register Volume 66, Number 7 (Wednesday, January 10, 2001)]
[Proposed Rules]
[Pages 1930-1945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-591]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2000-8156, Notice No.1]
RIN 2130-AB28


Roadway Maintenance Machine Safety

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FRA proposes to amend its regulations by adding operational 
and design safety standards for railroad on-track roadway maintenance 
machines. The proposed regulations cover self-propelled rail-mounted 
non-highway machines whose light weight exceeds 7,500 pounds.

DATES: Written Comments: Written comments must be received before March 
12, 2001. Comments received after that date will be considered to the 
extent possible without incurring additional expense or delay.
    Public Hearing: FRA does not plan to conduct a public hearing 
unless requested to do so by an interested party.

ADDRESSES: Written comments: Submit one copy to the Department of 
Transportation Central Docket Management Facility located in Room PL-
401 at the Plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC 20590. All docket material on the proposed rule will be 
available for inspection at this address and on the Internet at http://doms.dot.gov. Docket hours at the Nassif Building are Monday-Friday, 10 
a.m. to 5 p.m., excluding Federal holidays. Persons desiring 
notification that their comments have been received should submit with 
their comments a stamped, self-addressed postcard. The postcard will be 
returned to the addressee with a notation of the date on which the 
comments were received.
    Public hearing: The date and location of the public hearing will be 
announced at a later date in this publication.

FOR FURTHER INFORMATION CONTACT: Allison H. MacDowell, Office of Safety 
Enforcement, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Mail Stop 25, Washington, DC 20590 (telephone: 202-493-6236), or Nancy 
Lummen Lewis, Office of Chief Counsel, Federal Railroad Administration, 
1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 
(telephone: 202-493-6047).

SUPPLEMENTARY INFORMATION:

Introduction

Background

    In May, 1990, the Brotherhood of Maintenance of Way Employes (BMWE) 
filed a petition with FRA to revise the Track Safety Standards and add 
to them new regulations addressing the safety of roadway workers and 
roadway maintenance machines. In response, FRA first initiated a 
negotiated rulemaking to address roadway worker safety. The final rule 
resulting from that rulemaking was published in December, 1996 (see 61 
FR 65959), and the regulations addressing roadway worker safety now 
reside in 49 C.F.R. part 214, subpart C.
    Also in 1996, FRA requested that the newly formed Railroad Safety 
Advisory Committee (RSAC) address by rulemaking the revision of the 
Track Safety Standards, as petitioned by the BMWE. The RSAC agreed to 
the task and formed a Track Working Group to draft a proposed revision. 
The Track Working Group decided by consensus that the draft revision 
would update the Track Safety Standards found at 49 C.F.R. part 213, 
and that a new set of regulations addressing the safety of on-track 
roadway maintenance machines would be initiated in a separate 
rulemaking. The RSAC approved by majority consensus a draft Notice of 
Proposed Rulemaking (NPRM) for revision of part 213 in October, 1996. 
FRA published the NPRM on July 3, 1997 (see 62 FR 36138), and the final 
rule on June 22, 1998 (see 63 FR 33992). The revised track standards 
became effective on September 21, 1998.
    Even after the publication of the revised Track Safety Standards, 
the Track Working Group remained in existence to accomplish two 
additional tasks adopted by the RSAC: the amendment of part 213 to add 
safety standards for Gage Restraint Measuring Systems (GRMS) and the 
amendment of part 214 to add safety standards for on-track roadway 
maintenance machines. To accomplish the latter, the Track Working Group 
appointed a six-member Task Group to draft by consensus rule language, 
as well as analysis of the new rule for the preamble. The product of 
that Task Group is contained in this document.
    The Task Group consisted of representatives from FRA, Association 
of American Railroads (AAR), Norfolk Southern Railway, an equipment 
supplier, and the BMWE. The group met several times and conducted 
numerous conference calls before reaching

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agreement on draft rule language to recommend to the RSAC for approval.

Early Efforts and Size Categories

    The Task Group initially divided roadway maintenance machines into 
three broad categories: On-track, on/off track, such as hi-rails, and 
off-track. The group quickly decided to confine the regulations to on-
track equipment and equipment used both on and off track. The group 
further divided two remaining categories of roadway maintenance 
machines into five sub-categories: large self propelled equipment, 
medium self propelled equipment, small ``walk-along'' equipment, hi-
rail equipment and motor cars.
    The Task Group conducted a systematic review of various types and 
configurations of machinery, as well as their current use in the 
railroad industry. The group determined that the railroad industry is 
rapidly phasing out the use of motor cars, replacing them with hi-rail 
vehicles. In fact, motor cars have not been manufactured for use in the 
United States in several years. Therefore, the Task Group decided there 
was no need to write a rule covering motor cars. However, if in the 
future, the industry returns motor cars for widespread use as 
inspection vehicles, FRA may reconsider its decision to exclude motor 
cars from this regulation.
    Next, the Task Group decided to eliminate small ``walk-along'' 
track equipment from the scope of the new regulations. ``Walk-along'' 
equipment includes small pieces of track maintenance equipment that 
rolls on the rails but may not be self-propelled. This type of machine 
includes tie borers, nut runners, portable rail grinders and other 
track maintenance equipment of similar size which can be placed on, or 
removed from, the track with relative ease by one or more roadway 
workers. The group determined that the great variety of this type of 
equipment would dictate writing a very complicated set of regulations 
governing a category of equipment that does not pose a very significant 
safety hazard. Therefore, the Task Group decided to focus the 
rulemaking on the three remaining sub-categories groups of roadway 
maintenance equipment: large on-track machines, medium on-track 
machines, and hi-rails.
    To distinguish large on-track machines from medium-sized on-track 
machines, the Task Group decided to consider the light weight of the 
vehicles. Large equipment was designated ``Category I'' and included 
on-track self-propelled roadway maintenance machines that weigh (light 
weight) more than 17,500 lbs. ``Category II'' machines included similar 
equipment whose light weight was less than 17,500 lbs. but more than 
7,500 pounds.
    The final categorization of covered roadway maintenance machines 
dealt with the age of the vehicles. The Task Group determined that all 
of the regulations would apply to new machines. The group decided to 
define ``new'' as any machine ordered for manufacture 90 days after the 
issuance of a final rule. This delay in the implementation of the rule 
on new equipment is meant to prevent the rule from interfering with the 
manufacture of new equipment already on order but not yet completed as 
of the date of the issuance of the final rule.
    Likewise, the Task Group felt it necessary to limit the number of 
older roadway maintenance machines that would need retrofitting 
following the issuance of a final rule in this proceeding. Because 
technology has much changed and many types of roadway maintenance 
machines have been redesigned in more recent years, the Task Group 
determined that the new rule should not apply to the oldest equipment 
in the industry's collective fleet. Therefore, the group decided that 
the requirements for retrofitting would not apply to any roadway 
maintenance machine manufactured prior to 1990.
    With the parameters about types of equipment agreed upon, the Task 
Group then set out to determine what safety features on the machine 
should be covered by the regulations. The group reviewed existing 
standards for work equipment issued by the Occupational Safety and 
Health Administration (OSHA), and discussed the American National 
Standards Institute (ANSI) and the Society of Automotive Engineers 
(SAE) standards, which are voluntary industry standards. The group 
identified 18 items on the Category I and Category II machines that 
should be included in the regulations:
     Operator Seating
     Brakes
     Horn
     Work Lights
     Mirrors
     Change of Direction Alarm
     Fire Extinguisher
     Safety Glass
     Power Wipers
     Strobe Light
     Heat and Ventilation Non-Pressurized Cab
     Flagging Equipment
     Headlights
     Turntable Positive Restraint Device
     Equipment Lite Weight Displayed
     Heat, Ventilation, Air Conditioning Pressurized Cab
     Brake Lights
     First Aid Kit
    For hi-rail vehicles, the group determined that the regulations 
should address:
     Operator Seating
     Brakes
     Horn
     Mirrors
     Fire Extinguisher
     Safety Glass
     Power Wipers
     Heat and Ventilation Non-Pressurized Cab
     Headlights
     Equipment Lite Weight Displayed
     Brake Lights
     Change of Direction Alarm
     Strobe Light
     Flagging Equipment
     First Aid Kit
    Because the regulations are meant to cover hi-rails only when they 
are being used as on-track vehicles, the Task Group determined that the 
regulations should not replace any state requirements covering hi-rail 
vehicles when they are used as roadway motor vehicles.
    As the discussions continued over many months and the proposed rule 
evolved, early decisions made by the group also evolved and some 
changed. For example, the Category I and II designations, which helped 
the group early in the discussions, eventually became unnecessary as 
proposed requirements changed. The proposed rule reflected in this 
document makes the distinction between large equipment and medium-sized 
equipment in only two instances, making it unnecessary to maintain the 
designated categories for purposes of the rule.

Shunting

    Early in the deliberations, the Task Group explored whether or not 
these proposed regulations should require that the covered track 
maintenance machines be non-insulated for the purpose of shunting the 
track circuits. Machines capable of shunting track circuits would 
enable a track circuit to indicate track occupancy by the machine, 
affording an extra measure of protection for the track crew through the 
signal system, as well as protection at highway-rail crossings through 
the activation of warning devices at crossings so equipped.
    The railroad industry has struggled many years to develop a 
technology that would provide reliable shunting capabilities for track 
maintenance machines. Even heavy equipment such as rail diesel cars 
(RDC's) and lite locomotives do not always shunt the track circuits. 
The Task Group

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discussed the advantages of current shunting technologies when the 
technologies work successfully, and balanced them against the 
possibility that the technologies might fail. Roadway workers could 
develop a false sense of security when using machines designed to shunt 
track circuits, perhaps relying too heavily on shunting as a method of 
protection when the reliability of the shunting is not failsafe.
    The Task Group agreed that, because present shunting technology has 
not advanced enough to guarantee a level of reliability necessary for 
track maintenance machines, this rule should not propose to require 
that the machines be non-insulated. However, if FRA finds in the future 
that the technology has advanced to a high level of reliability for 
track maintenance machines, the agency may reconsider its position 
regarding insulation.

Noise Conservation

    The Task Group considered including in the proposed regulations a 
design standard that would require new roadway maintenance machines 
covered by this proposed rule to maintain the noise level in the cab of 
the machine to 85 dBA measured on the A-scale of a standard sound level 
meter at slow response over an eight-hour period. Hearing loss caused 
by exposure to loud levels of noise over an extended period of time is 
a significant issue among roadway workers. Workers on roadway 
maintenance machines are currently protected by Occupational Safety and 
Health Administration (OSHA) regulations in Title 29, Code of Federal 
Regulations, Section 1910.95, which requires a covered employer to 
provide a hearing conservation program, hearing protection, and 
training for employees.
    However, if FRA were to establish noise exposure standards here 
with a new design standard, the standards would preempt OSHA's 
jurisdiction over hearing conservation, pursuant to section 4(b)(1) of 
the Occupational Safety and Health Act. 29 U.S.C. 653(b)(1). Therefore, 
with a design standard for new equipment, but no requirement for a 
hearing conservation program, personal hearing protection and employee 
training, the roadway workers affected by this proposed rule would 
receive less protection than they receive now under OSHA regulations. 
In addition, an effort by FRA to enter the field of hearing 
conservation on some roadway maintenance machines could result in FRA's 
preemption of OSHA regulations as to all roadway maintenance machines. 
This result would leave operators of roadway equipment not under the 
proposed design standard (i.e., older equipment or equipment weighing 
less than 7,500 lbs.) with no hearing protection under Federal law 
whatsoever.
    To prevent such an unwanted result, FRA would need to institute its 
own set of comprehensive regulations dealing with hearing protection, 
hearing conservation programs, and testing. Given the fact that OSHA 
currently has authority to address noise exposure and hearing loss for 
these employees, and the requisite expertise at hand to do so 
effectively, FRA sees no need to duplicate such a program. In fact, as 
FRA understands it, the railroads currently follow the OSHA regulations 
and have established hearing conservation programs that include these 
employees.

Environmental Controls in Cabs

    The issue of environmental controls in cabs of roadway maintenance 
machines, including heating, air conditioning, and protection from air 
contaminants like silica dust, was the topic of much discussion among 
Task Group members. The group worked hard to find a balance between 
environmental controls perceived to be safety enhancements and those 
perceived by some to be merely ``comfort'' improvements. The resulting 
requirement in this proposed rule therefore is designed to protect 
employees working on certain types of roadway machines from air 
contaminants that may cause respiratory health problems for employees 
while also protecting equipment components from the effects of 
temperature extremes or degradation from dust and debris. The proposed 
standard would also enhance safety by reducing noise inside the 
equipment cabs, thereby effectuating clearer radio communications 
between employees. In addition, the proposed standard would afford 
clearer visibility for those working inside the cab.
    Under this proposed regulation, OSHA environmental standards, which 
already govern the working environments of roadway maintenance 
machines, would essentially remain in effect. The NPRM proposes to 
``incorporate by reference'' the OSHA standards contained in 29 CFR 
1910.1000. This action would mean that FRA would become the enforcing 
agency as to environmental controls over the selected types of 
equipment, rather than OSHA. Environmental controls in equipment not 
covered by this proposed rule and the limiting of exposure to employees 
working outside equipment would remain subject to OSHA enforcement, 
although the regulation is the same (29 CFR 1910.1000).
    It is important to note that the proposed requirement is to 
incorporate the OSHA standards ``as amended.'' OSHA has announced plans 
to revise its environmental standards. By incorporating the standards 
``as amended,'' FRA's environmental standards under this rule would 
automatically change with any revision by OSHA so as to remain in 
conformance with those standards. This action prevents an undesirable 
result where operators of roadway machines covered by this regulation 
receive less protection than other operators after OSHA revises its 
standards.
    The regulation proposed here is meant to cover only certain roadway 
maintenance machines. The regulation proposes positive pressurized 
ventilation systems with temperature controls only on new roadway 
maintenance machines as defined in the proposed definition in 
Sec. 214.7. In addition, the proposed regulation is limited to ballast 
regulators, tampers, mechanical brooms, rotary scarifiers, 
undercutters, and other equipment with equivalent functions. It is 
FRA's understanding that these types of equipment are now typically 
manufactured with engineering controls that prevent inhalation of 
hazardous substances. The proposed regulation would require temperature 
controls because, by their nature, pressurized cabs require full 
enclosure without access to open windows or alternative sources of 
ventilation. It becomes imperative, therefore, that the cabs also be 
equipped with a means to control the temperature inside the cab. If the 
engineering controls fail for the ventilation system of any roadway 
maintenance machine covered by this section of the regulation, 
employees on the machine must be equipped with personal respiratory 
protective equipment that is operative and meets the OSHA standards in 
29 CFR 110.134.
    To prevent confusion about which agency has enforcement authority 
over specific roadway maintenance machines, the rule proposes to 
require railroads to maintain a roster of machinery that would fall 
under FRA's jurisdiction for purposes of this regulation. The roster 
may be maintained on paper or electronically, but it must be accessible 
and available to FRA, OSHA, and other Federal and state agencies so 
that inspectors may determine which agency has responsibility for 
inspection of which machines. The roster should prevent confusion that 
may cause certain machines to be inspected by two

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Federal agencies while other machines go uninspected altogether.
    Although the proposed rule addresses pressurized cabs and 
temperature controls for only certain types of new roadway maintenance 
machines, railroads are not precluded from equipping other types of 
machinery, or older machinery, with the same features. If the railroad 
desires that FRA become the inspection agency for those machines so 
retrofitted, the railroad may simply add the designated machines to the 
roster. However, once added to the roster, a designated machine must 
remain on the roster until it is retired or its ownership changes.

Crane Safety

    In 1998, the BMWE petitioned FRA to issue new regulations governing 
the safety of on-track railroad maintenance cranes. Currently, the 
safety of railroad crane operations is governed generally by OSHA 
regulations at 29 CFR 1910.180. In its petition, the BMWE is seeking to 
reduce the number of railroad crane operators who are killed or 
seriously injured when cranes accidentally tip over due to shifting 
loads, excessive loads, defective equipment, supervisor misjudgment, or 
operator error. It is not clear from the data FRA has now whether a 
reduction in railroad crane accidents is best accomplished through 
better equipment design or improved employee training.
    This proposed rule is not intended to cover crane safety as 
envisioned by the petition. FRA has made a commitment to gather data 
and information regarding crane safety and upon completing that, to 
seek the advice of the RSAC about the necessity of issuing regulations.

Section by Section Analysis

    FRA proposes to amend part 214 of Title 49, Code of Federal 
Regulations by adding a new subpart D specifically devoted to the 
prevention of accidents and casualties caused by the operation of on-
track roadway maintenance machines and hi-rail vehicles. FRA also 
proposes to amend subpart A of part 214 by adding new definitions to 
section 214.7 that describe and categorize the types of roadway 
maintenance machines that subpart D will address. (see page 15)

Section 214.7--Definitions

    Section 214.7 contains additional entries which are particularly 
important to the understanding of the types of equipment that are to be 
covered by the proposed rule. Subpart D will address two general types 
of roadway maintenance machines. On-track roadway maintenance machines 
are defined as self-propelled, rail mounted, non-highway, roadway 
maintenance machines whose light weight is in excess of 7,500 pounds, 
and whose purpose is not for the inspection of railroad track. Hi-rail 
vehicles are defined as roadway maintenance machines that are 
manufactured to meet Federal Motor Vehicle Safety Standards and are 
equipped with retractable flanged wheels so that the vehicle may travel 
over the highway or on railroad tracks.
    Both on-track roadway maintenance machines and hi-rail vehicles are 
classified as either new or existing for the purposes of this rule. The 
new classification is defined as any vehicle covered by subpart D which 
is ordered after 90 days following the effective date of this rule, and 
completed after one year following the effective date of this rule. The 
existing classification is defined as any vehicle covered by subpart D 
which does not meet the definition of a new vehicle.
    Roadway maintenance machines not included within the scope of the 
proposed subpart D are on-track roadway maintenance machines whose 
light weight does not exceed 7,500 pounds, off-track equipment such as 
bulldozers, backhoes, and road graders, as well as that class of 
antiquated equipment referred to as motor cars. Although this equipment 
is not covered under the scope of proposed subpart D, it nevertheless 
meets the general definition of roadway maintenance machines as defined 
in this section for purposes of the Roadway Worker Protection 
regulations contained in subpart C of this Part.
    In addition, it is important to note here that the term 
``employer'' as defined in Subpart A includes railroads and contractors 
of railroads. In Subpart D, FRA has used the term ``employer'' as 
defined; that is both railroads and their contractors are subject to 
the requirements of subpart D.

Section 214.501--Purpose and Scope

    The purpose for the minimum safety standards prescribed under this 
subpart is the protection of roadway workers during the lawful 
operation of on-track roadway maintenance machines and hi-rail 
vehicles. This subpart prescribes minimum safety standards for on-track 
roadway maintenance machines and hi-rail vehicles, although railroads 
and railroad contractors (referred to collectively as ``employer'' 
throughout subpart D, as the term is defined in subpart A) may adopt 
more stringent standards as long as they are consistent with this 
subpart. As it has done in other regulations, FRA would include 
railroad contractors in the scope of this proposal. A good deal of 
track maintenance is completed by contractors to railroads, and so it 
is important for those entities to fall within the requirements for 
safe completion of that work.
    This section further states that any working condition which 
involves the protection of railroad employees engaged in roadway 
maintenance duties but which is not specifically addressed in this 
subpart (for example, noise exposure) continues to be governed by the 
regulations of OSHA.
    In addition, FRA would like to clarify here that all of the 
provisions set forth in subpart A to this part, which discuss purpose 
and scope of the part, would apply to subpart D as well.

Section 214.503--Good Faith Challenges; Procedures for Notification and 
Resolution

    Section 214.503 outlines the circumstances under which employees 
operating on-track roadway maintenance machines are guaranteed the 
right and have the responsibility to make challenges relative to the 
operation or condition of the on-track roadway maintenance machine. A 
challenge must be made in good faith in order to fall within the 
purview of this section.
    Paragraph (a) addresses the employee's responsibility to inform the 
employer whenever the employee makes a good faith determination that 
the employer's rules governing the on-track roadway maintenance machine 
do not comply with FRA regulations. The employee should not only 
consider the minimum safety requirements specified in this subpart, but 
should also consider the general requirements specified in Sec. 214.341 
of subpart C of this Part, which addresses the issue of on-track safety 
around roadway maintenance machines.
    Paragraph (b) guarantees the employee's right of refusal to operate 
any on-track roadway maintenance machine once the employee has made a 
good faith determination that the machine does not meet all the 
requirements of this subpart, or has a condition that prohibits its 
safe operation. Section 531 allows the employer up to seven days to 
repair a roadway machine found to be noncompliant. However, the 
employer cannot require an employee, who in good faith challenges the 
fitness of a machine, to operate the machine until the challenge has 
been resolved.
    Under paragraph (c), each employer must have in place, and must 
adhere to, written procedures for attaining a

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prompt and equitable resolution of challenges resulting from good faith 
determinations made in accordance with this section. The procedures 
shall outline the steps the employer will take to investigate each good 
faith challenge. They shall also include steps to be taken, once the 
employer's investigation shows that the challenged machine should not 
be used as it is, to ensure that the challenged machine is not used 
until repaired to comply with this subpart. FRA's purpose in requiring 
these procedures is to make certain that a machine operator who makes a 
good faith challenge of a machine's fitness to operate receives an 
explanation of an employer's decision to either keep the machine in 
service, or repair or replace it. FRA will not consider an employer to 
be compliant with this section if it responds to any good-faith 
challenge with a mere ``yes'' or ``no'' answer.
    The written procedures shall also include the title and location of 
the employer's designated official(s) for the purpose of reporting 
conditions found to be in non-compliance with this subpart. This 
requirement helps ensure that machine operators are informed as to whom 
they should address any good faith challenges.
    FRA envisions that machine operators will challenge the fitness of 
an assigned machine only in good faith, and the employer likewise will 
respond only in good faith. FRA realizes that a employer's fleet of 
roadway maintenance machines may be very large and that machines may 
sometimes become unfit for safe use without the employer's immediate 
knowledge. This provision seeks to establish a system under which a 
machine operator, who on any day may be in the best position to assess 
the safety fitness of a particular machine, can call the employer's 
attention to safety deficiencies and other defects that should be 
immediately addressed.
    However, FRA also realizes that sometimes defects can appear to be 
more serious than they actually are. What may appear to be a defect 
jeopardizing operational safety may in reality be a minor flaw that can 
be addressed at a later, more convenient time or location. This section 
allows for employers to investigate a good faith challenge to a 
machine's safety fitness and make its own good faith determination that 
the machine may be used without immediate repairs. However, this 
section requires good faith on the part of all parties involved. If FRA 
determines that an employer has not exercised good faith in determining 
that a machine need not be immediately repaired or replaced, FRA may 
seek enforcement action against the employer for violation of this 
section. On the other hand, FRA will not consider an employer's 
response to a challenge a violation of this section if FRA determines 
that the challenge was made for purposes of disrupting or delaying work 
or in a manner demonstrating a motivation other than good faith and 
concern for safety.

Section 214.505--Required Environmental Control and Protection Systems 
for New On-Track Roadway Maintenance Machines

    Paragraph (a) proposes to require that certain types of new roadway 
maintenance machines be equipped with enclosed cabs with a positive 
pressurized ventilation system that includes climate control. By 
design, most pressurized ventilation systems do not provide a means of 
exchanging internal air for outside air while the roadway maintenance 
machine is in operation. In other words, the machine cabs with 
pressurized ventilation systems generally are not equipped with other 
means of ventilation or climate control, such as operable windows. 
Therefore, the proposed requirement for positive pressurized 
ventilation systems in new on-track roadway maintenance machines 
dictates that these machines also be equipped with operative heating 
and air conditioning systems.
    The equipment subject to this requirement includes ballast 
regulators, tampers, mechanical brooms, rotary scarifiers, 
undercutters, and other equipment with equivalent functions. This 
equipment is used to perform track and roadbed maintenance that 
typically creates a good deal of noise, debris, and dust. This work 
often occurs while employees are situated both in the cab of the 
equipment and along the right-of-way, in close proximity to the 
equipment as it is operated.
    This proposed requirement will ensure the safety of employer 
operations and employee safety in a variety of ways.
     Employees working in the cab will be protected from 
exposure to unhealthy levels of silica dust, which is prevalent in many 
regions of the country where track repair is done, as well as other air 
contaminants.
     The components of the equipment will be protected from 
temperature extremes and the degradation that may occur due to 
concentrations of dust and debris.
     Any combustion fumes generated by the equipment will be 
prevented from entering the cab so that employees are not exposed to 
the potential hazards of fuel exhaust.
     With diminished noise, dust, and debris in the cab, 
employees will be able to better communicate with one another in the 
cab and, through the use of radios, with those employees working on the 
ground who might be placed at risk if the equipment moves or operates 
unexpectedly.
     The visibility of those working in the cab will improve.
    The standards of this section affect only those listed machines 
manufactured after [insert date 90 days following the effective date of 
this rule]. FRA proposes to incorporate by reference and enforce OSHA 
environmental standards contained in 29 CFR 1910.1000 as amended. 
Environmental controls of older machinery will be governed by the same 
regulations, but compliance will be enforced by OSHA. It is FRA's 
understanding that new roadway machines of the type listed in this 
section are manufactured with engineering controls that prevent the 
inhalation of hazardous substances, as required by the OSHA standards. 
By adopting the OSHA regulations for new machinery, FRA will be in a 
position to make progressive improvements in environmental quality of 
roadway equipment based upon a foundation of protection already 
established by OSHA.
    FRA proposes that employers maintain a roster of machinery that 
will fall under FRA's jurisdiction for purposes of this regulation. The 
roster, which may be electronic, must be readily available to FRA and 
other federal and state agencies upon request so that inspectors may 
determine which agency has responsibility for inspection and 
enforcement of respiratory safety regulations for each roadway machine.
    Employers may elect to include on the roster older machines that 
are equipped with engineering controls for air ventilation. These 
machines designated for inclusion on the roster may be ones 
manufactured with engineering controls for ventilation or machines 
retrofitted by the employer to have engineering controls. If added to 
the roster, the designated machines become subject to FRA's inspection 
and enforcement. Once a machine is added to the roster, however, it 
must remain on the roster until it is retired or its ownership changes.
    FRA recognizes that engineering controls for ventilation may fail 
from time to time. When a new or designated roadway maintenance machine 
of the type listed in paragraph (a) does not offer the protection 
required by 29 CFR 1910.1000 because the engineering controls have 
temporarily failed, the

[[Page 1935]]

employer must provide employees on that machine personal respiratory 
protective equipment for protection from air contamination. The 
personal respiratory protective equipment must be operative and must 
meet the standards issued by OSHA in 29 CFR 1910.134. The standards set 
by OSHA require employers to use NIOSH-certified respirators. Employers 
must have in place a respiratory protection program including 
procedures for proper inspection and maintenance of the respirators and 
medical evaluations of personnel designated to use the respirators.
    By referencing OSHA's regulations already in effect, FRA is not 
creating a new burden on employers. Rather, FRA is simply adopting 
standards that are already required by another government agency. A 
requirement in the final rule for heating, air conditioning, 
pressurized cabs, and personal respiratory protective equipment in new 
roadway maintenance machines would constitute an exercise of FRA 
jurisdiction over the working condition of employee exposure to 
temperature extremes and air contaminants for those employees working 
in the cabs of this equipment. This exercise would oust any authority 
or enforcement actions by OSHA concerning working conditions related to 
the operation of air conditioning and heating systems or high levels of 
air contaminants in the cabs of this equipment. FRA is prepared to 
address these working conditions that may arise in these cabs, either 
through consultation with employers to remedy problems, or through the 
imposition of an enforcement action to bring about compliance.
    OSHA has announced plans to revise its regulations regarding 
protection from silica dust. Therefore, FRA proposes to incorporate by 
reference the OSHA standards as revised, making it clear that when the 
revised OSHA standards go into effect, FRA will likewise enforce the 
revised standards on those machines over which FRA has jurisdiction. 
This incorporation will ensure that the proposed OSHA revision does not 
create an inconsistency where some types of roadway machines are 
governed by the revised standards enforced by OSHA and others are 
governed by the older standards enforced by FRA. FRA's extent of 
protection reaches only as far as the cab of the covered on-track 
roadway maintenance machine. The adoption of OSHA standards by FRA does 
not include protection from silica dust for employees not working 
inside the cabs of covered on-track roadway maintenance machines. For 
example, roadway workers working along the right-of-way continue to 
receive silica dust protection as administered by OSHA. Workers inside 
the cabs receive protection from FRA while working inside the cab, but 
receive protection from OSHA when working outside the cab.
    This proposal adopted in final form would not constitute an 
exercise of authority over noise exposure for employees working on or 
around equipment covered by this section. This requirement does not 
establish permissible noise exposure levels for employees working on or 
around this equipment. OSHA's existing standards for noise exposure, 29 
CFR 1910.95, will continue to apply.
    Paragraph (g) requires that new on-track roadway maintenance 
machines, other than the specific types listed in paragraph (a) that 
are designed with enclosed cabs, shall be equipped with operative 
heating and ventilation systems.
    Paragraph (h) refers to new on-track roadway maintenance machines 
that have, in addition to the main cab, non-enclosed operator stations 
in other places on the machine. These stations should be equipped with 
covering of some kind that will protect the operator in that position 
from midday sun or from normal rain. Of course, there will be times 
during the day when the sun is in such a position in the sky that a 
covering will not completely protect the operator from the sun. 
Likewise, a cover may not completely protect an operator from very 
heavy or wind-driven rain. This paragraph is not intended to require 
coverings to protect the operator in all circumstances.
    The coverings are required only where the design of the machine 
allows for placement of a covering. Some operator's positions may be 
situated such that the addition of a covering is either impossible or 
would obstruct another working part of the equipment. In those 
instances, the coverings will not be required.

Section 214.507--Required Safety Equipment for New On-Track Roadway 
Maintenance Machines

    Section 214.507 specifies the safety equipment required on all new 
on-track roadway maintenance machines. Several of the requirements are 
structural in nature, such as seats and handrails, and would be best 
met through engineering design by the equipment manufacturer. Other 
requirements, like fire extinguishers and first aid kits, can be 
installed either by the manufacturer or by the employer after delivery 
from the manufacturer.
    Paragraph (a) requires that each new on-track roadway maintenance 
machine be equipped with a seat for each operator, unless the machine 
is designed to be operated by an operator in the standing position. 
Each roadway worker transported on a piece of on-track roadway 
maintenance machinery is required to have a safe and secure position 
with handholds, handrails, or a secure seat. These safe and secure 
positions should be located so that they offer protection from moving 
parts of the machine which could entangle clothing or body extremities. 
FRA is considering additional regulatory language describing ``safe and 
secure positions'' with more specificity. FRA requests comments about 
the need for more specific descriptions of ``safe and secure 
positions'' and what those descriptions should include.
    Some on-track roadway maintenance machines are equipped with 
turntables to allow them to quickly change working direction when wye 
or loop tracks are not readily accessible. Paragraph (a) will require 
new machines to have turntables equipped with a positive method of 
mechanical securement, through engagement of pins and hooks, to prevent 
the lowering of the turntable device below the head of the rail when 
not in use. This arrangement of pins and hooks will provide a safety 
redundancy in case the main activation system fails or is accidentally 
triggered.
    Paragraph (a) requires new on-track roadway maintenance machines to 
have windshields made of safety glass or other material with similar 
properties, such as Lexan. The machinery is also required to have power 
windshield wipers; however, in cases where traditional windshield 
wipers are incompatible with the windshield material, the employer 
should provide a suitable alternative that offers the operator an 
equivalent level of vision.
    Paragraph (a) requires that new on-track roadway maintenance 
machines be equipped with primary braking systems capable of 
effectively controlling the movement of the machines under normal 
operating conditions. New machines must also have a suitable first aid 
kit and fire extinguisher readily accessible to the operator(s). The 
first aid kit must meet the requirements of 29 CFR 1926.50(d)(2), as 
amended (OSHA regulations). This requirement means that the first aid 
supplies in the kits must be in individual sealed packages for each 
type of item and placed in a weatherproof container. The kits must be 
inspected weekly and expended items replaced. OSHA does not regulate 
the minimum contents of the first aid

[[Page 1936]]

kit, but it recommends as an example the description of the contents of 
a generic first aid kit described in American National Standard (ANSI) 
Z308.1-1978 ``Minimum Requirements for Industrial Unit-Type First-Aid 
Kits.'' (See Appendix A to 29 CFR 1926.50.)
    The fire extinguisher must be operative and properly charged, 
securely mounted near the operator's work station, and designed with a 
rating of 5 BC or higher. A fire extinguisher with a ``BC'' rating is 
suitable to combat fires generated by flammable liquids or electrical 
equipment. The ``5'' designation indicates the extinguisher's volume 
and fire-fighting capacity. A requirement of a 5BC rating is consistent 
with workplace standards in other industries.
    Where new on-track roadway maintenance machines are designed to be 
operated with the operator in a standing position, the requirements of 
paragraph (a)(1) of this section do not apply. Paragraph (b) requires 
these machines to be designed and equipped with handholds and handrails 
that provide the operator with a safe and secure position.
    Paragraph (c) requires that an on-track roadway maintenance machine 
with a light weight in excess of 32,500 pounds be equipped with a speed 
indicator if the machine is operated at speeds in excess of 20 mph. The 
speed indicator must be calibrated to be accurate within  5 
mph of the actual speed when speeds are 10 mph or faster.
    Paragraph (d) requires the manufacturer of new on-track roadway 
maintenance machines to clearly display the as-built light weight of 
the machine. Light weight of the machine is calculated when the machine 
is not loaded with passengers or extraneous equipment not part of the 
machine itself. The light weight should be displayed in a conspicuous 
location on the machine and will serve to identify its proper category 
for the purposes of this regulation. The light weight will also provide 
essential information to crane operators in the event the machines are 
off-loaded to flatbed trucks or rail cars for shipment from one work 
site to another.

Section 214.509--Required Visual Illumination and Reflective Devices 
for New On-Track Roadway Maintenance Machines.

    Section 214.509 prescribes requirements for lights and reflective 
devices for new on-track roadway maintenance machines. The machine 
operator must have sufficient light to safely work or travel, 
especially during night time operations. To ensure that the machines 
are visible to roadway workers on the track and to vehicular traffic at 
highway-rail crossings, they must be equipped with headlights or other 
illumination devices that, under normal weather and atmospheric 
conditions, can illuminate the track ahead for a distance of 300 feet.
    In several paragraphs, this section refers to visibility in normal 
weather and atmospheric conditions. The requirement for illumination 
for 300 feet is a measure to be considered under generally clement 
weather and atmospheric conditions. FRA understands that during periods 
of rain, fog, snow and other occurrences that are common in normal 
weather patterns, the lighting capability of the illuminating devices 
may temporarily be unable to extend a full 300 feet. These temporary 
instances when full illumination is not possible will not be considered 
a violation of this regulation. In addition, FRA will not consider 
unusual weather events such as hurricanes, tornadoes, eclipses, or 
horizontally driven snowstorms to be normal weather and atmospheric 
conditions under which this regulation must apply.
    Paragraph (a)(1) requires an illumination device, such as a 
headlight, capable of illuminating obstructions on the track ahead in 
the direction of travel for a distance of 300 feet under normal weather 
and atmospheric conditions. When on-track roadway maintenance machines 
are operated between \1/2\ hour after sunset and \1/2\ hour before 
sunrise, or in dimly lit areas such as tunnels, they are required by 
paragraph (a)(2) to be equipped with operating work lights unless 
equivalent lighting is otherwise provided, for example, by portable 
wayside generator-driven light plants.
    Paragraph (a)(3) requires an operative warning light or beacon 
mounted to the roof of the machine. The light or beacon should be 
designed to intermittently flash while rotating 360 degrees. Exempt 
from this requirement are on-track roadway maintenance machines that 
have a light weight greater than 7,000 pounds and less than 17,500 
pounds and are designed without fixed roofs.
    Paragraph (a)(4) requires on-track roadway maintenance machines to 
be equipped with brake lights activated by an application of the 
machine braking system. The brake light should be visible for a 
distance of 300 feet under normal weather and atmospheric conditions.
    Paragraph (a)(5) requires that on-track roadway maintenance 
machines be equipped with operative rearward viewing devices, such as 
rearview mirrors or their functional equivalent, to enable machine 
operators to better see other machines or roadway workers within the 
immediate work zone.

Section 214.511--Required Audible Warning Devices for New On-Track 
Roadway Maintenance Machines

    This section requires audible warning devices on new on-track 
roadway maintenance machines to provide additional safety for roadway 
workers as well as other machine operators.
    Paragraph (a)(1) specifies that audible warning devices, such as 
horns, produce sound loud enough to be heard by roadway workers and 
other machine operators within the immediate work area. The triggering 
mechanism for the audible warning device must be clearly identifiable 
and within easy reach of the machine operator.
    Paragraph (a)(2) requires that automatic change-of-direction alarms 
produce an audible signal that is at least three seconds long, is loud 
enough to be heard by roadway workers and other machine operators 
within the immediate work area, and is uniquely distinguishable from 
any surrounding noise. The change-of-direction alarm should sound 
automatically in each instance where the on-track roadway maintenance 
machine's transmission changes the machine's movement direction.
    In addressing the required loudness of the audible warning devices 
and change-of-direction alarms, the Task Group chose not to set a 
decibel standard. However, the standard as proposed, i.e., ``loud 
enough to be heard by * * * workers * * * within the immediate work 
area,'' may invite too many variables, making the standard difficult 
for FRA to enforce. FRA invites comments about whether or not this 
standard should be changed to a particular decibel level, and if so, 
what level.

Section 214.513--Retrofitting of Existing On-Track Roadway Maintenance 
Machines

    This section specifies a schedule of retrofit items applicable to 
all existing on-track roadway maintenance machines. By definition 
referenced in Sec. 214.7, existing means any on-track roadway 
maintenance machine that was in existence or was on order prior to 
[insert date 90 days following the effective date of this rule.]
    Paragraph (a)(1) states that each roadway worker transported on an 
existing on-track roadway maintenance machine shall have a safe and 
secure position that also provides protection from moving machine parts 
that could entangle clothing or body extremities.

[[Page 1937]]

These positions may include seats or foot platforms with handholds so 
that the roadway worker can maintain a stable and balanced position on 
the machine as it is moving down the track. Roadway workers are 
prohibited from being transported on machines on which it is not 
possible to provide safe and secure positions for them.
    Because there exists no set standard or pattern for where positions 
are located on an on-track roadway maintenance machine for roadway 
workers to ride, paragraph (b) requires that each existing machine have 
stenciling or documentation on the machine to clearly identify the 
location of safe and secure positions for the machine operator and any 
roadway workers transported on the machine. If roadway workers are not 
permitted on a particular machine, that prohibition should be so noted 
on the stenciling or documentation. FRA received a suggestion from some 
members of the Track Working Group that a systemwide operating rule 
prohibiting the transport of roadway workers on certain roadway 
maintenance machines could serve as an effective and efficient means of 
documenting this prohibition. FRA is therefore requesting comments 
regarding the effectiveness and efficiency of allowing employers the 
option of using an operating rule to identify which roadway maintenance 
machines are prohibited from transporting roadway workers.
    Paragraph (c) states that within 18 months from the effective date 
of this rule, each existing on-track roadway maintenance machine shall 
have a permanent or portable horn or other audible warning device. The 
audible warning device shall be easily accessible to the machine 
operator and shall produce a sound loud enough to be heard by roadway 
workers and other machine operators within the immediate work area.
    As in section 214.511, the Task Group chose not to set a decibel 
standard to address the required loudness of the audible warning 
devices on existing roadway maintenance machines. FRA invites comments 
addressing whether or not such a standard is necessary, and if so, what 
decibel level is appropriate.
    Paragraph (d) states that within 18 months from the effective date 
of this rule, each existing on-track roadway maintenance machine shall 
be equipped with a permanent illumination device, such as a headlight, 
or a portable light source securely placed on the machine and not hand-
held. The portable light does not have to be permanently affixed to the 
vehicle. FRA will consider the light source to be securely placed on 
the machine if it is held in place through any arrangement of screws, 
bolts, mounting clips, or heavy-duty magnets that maintains the light 
steadily in place without requiring a person to hold it. Lights are 
required if the machine is operated between \1/2\ hour after sunset and 
\1/2\ hour before sunrise or in dimly light areas such as tunnels. The 
illumination device or portable light source must be capable of 
illuminating obstructions on the track ahead for a distance of 300 feet 
under normal weather and atmospheric conditions.
    The regulation permits the employers up to 18 months to retrofit 
the on-track roadway maintenance machines with audible warning and 
illumination devices to allow time to order this new equipment if 
necessary. The stenciling requirement, however, becomes effective 
within one year of the effective date of the rule because most 
employers are already equipped with stencils and paint.

Section 214.515--Overhead Covers for Existing On-Track Roadway 
Maintenance Machines

    This section addresses the maintenance of overhead covers on 
existing on-track roadway maintenance machines, as well as the 
feasibility of providing overhead covers on certain machines not 
originally designed and manufactured with such protection.
    Paragraph(a) states that within 18 months from the effective date 
of this rule, overhead covers on existing on-track roadway maintenance 
machines shall be repaired and thereafter maintained in accordance with 
the provisions of Sec. 214.531 of this subpart. The covers or canopies 
must be capable of shielding the operator from overhead sunlight, but 
are not expected to offer complete protection from the sun when the sun 
is relatively low in the sky, soon after sunrise and just before 
sunset. The covers should also be capable of shielding the operator 
from ordinary rainfall or snowfall, but are not expected to shield the 
operator from the effects of windblown precipitation.
    Many older on-track roadway maintenance machines were not designed 
with overhead covers, although machine operators could greatly benefit 
from their presence. Paragraph (b) allows an operator assigned to 
operate a particular on-track roadway maintenance machine, or that 
operator's designated representative, to request in writing that the 
employer evaluate the feasibility of providing an overhead cover where 
original design specifications did not provide for one or where the 
overhead cover was an option that was not purchased. Under paragraph 
(b), the employer must respond in writing within 60 days to each 
request.
    If the employer finds that the addition of an overhead cover is not 
feasible for a particular machine, the written response must state why. 
There may be a number of reasons why an employer would find that the 
addition of an overhead cover is not feasible. There may be no room on 
the machine to install an effective cover or canopy, or the machine may 
not provide a safe place on which a cover may be mounted or attached. 
Employers must proceed with caution in retrofitting a cover that is 
supported by an additional pole or stanchion. A stanchion may be used 
incorrectly by a roadway worker as a handhold. FRA therefore recommends 
that stanchions added to a machine for any reason should be strong and 
secure enough to also qualify as a safe handhold for a roadway worker.

Section 214.517--Retrofitting of Existing On-Track Roadway Maintenance 
Machines Manufactured After 1990

    This section specifies a schedule of retrofit items for existing 
on-track roadway maintenance machines manufactured after 1990. On-track 
roadway maintenance machines manufactured prior to 1990 are exempt from 
these requirements. Within 18 months from the effective date of this 
rule, the following retrofitted items should be installed:
     Change-of-direction alarm, or rearview mirror or other 
rearward viewing device. The proposed rule makes such an alarm or 
rearview mirror a requirement ``if feasible from an engineering 
standpoint.'' Among the wide variety of roadway maintenance machines, 
there exist some machines to which such a retrofit would be useless, 
unnecessary, impossible, or impractical. Under this proposed 
regulation, feasibility for retrofitting a change-of-direction alarm or 
rearview mirror to a particular roadway maintenance machine would be 
determined by the employer after considering available compliance 
options, as well as the durability and functional quality of the 
proposed retrofit on a machine specific basis.
    A change-of-direction alarm notifies workers near the roadway 
maintenance machine that its movement is about to change. A rearward 
viewing device assists the operator of the machine in safeguarding 
roadway workers in area of the machine. Both devices offer protection 
for roadway workers, but from two different perspectives. FRA seeks 
comments regarding whether this standard should require both a change-

[[Page 1938]]

of-direction alarm and a rearward viewing device in order to afford 
adequate protection for roadway workers working in the area of a 
roadway maintenance machine.
     Heater that is operative when the ambient temperature is 
less than 50 degrees Fahrenheit. Roadway workers typically dress in 
seasonal clothes appropriate to perform work outdoors, unlike 
locomotive cab employees who expect to spend most of the workday inside 
the cab of a locomotive. Therefore, the threshold ambient temperature 
may be as low as 49 degrees Fahrenheit before triggering the 
requirement for an operative heater in a roadway maintenance machine.
     Light weight of the machine stenciled, or otherwise 
clearly displayed, on the machine if the light weight is known.
     Brake lights or other reflective devices or material.
     Safety glass when glass is normally replaced on the 
machine. However, if the employer has on hand as of the effective date 
of this rule replacement glass that is other than safety glass and is 
specifically intended for use on these machines, the employer may 
utilize the supply until it is exhausted. The Task Group did not 
specify standards for safety glass. FRA requests comments about whether 
the final rule should include safety glass standards, such as 
requirements delineated in 49 CFR part 223 (Safety Glazing Standards).
     Turntable restraint devices, such as an arrangement of 
pins and hooks designed to prevent an undesired lowering of the 
turntable device, or a warning light that would indicate to the machine 
operator that the turntable device is not in a normal travel position.
     Handholds, handrails, secure seats or benches for each 
roadway worker transported on a machine. FRA is considering adding to 
this rule regulatory standards for these handholds, handrails, seats 
and benches. Therefore, FRA seeks comments regarding the need for such 
regulatory standards and what those standards should include.

Section 214.519--Floors, Decks, Stairs, and Ladders for New and 
Existing On-Track Roadway Maintenance Machines

    All new and existing on-track roadway maintenance machines shall 
have floors, decks, stairs, and ladders that are of appropriate design. 
The purpose of this requirement is to provide secure footing for the 
machine operator and any roadway workers transported on the machine. 
Current industry standards specifying material such as diamond plate, 
rubber tile, or other slip-resistant material design would be 
considered appropriate for the purposes of this regulation.
    In addition, accumulations of oil, grease, or other contaminants or 
obstructions that could create a slipping, falling, or fire hazard must 
be promptly removed from floors, decks, stairs, and ladders.

Section 214.521--Flagging Equipment for On-Track Roadway Maintenance 
Machines and Hi-Rails Vehicles

    This section requires that flagging kits be available when on-track 
roadway maintenance machines and hi-rail vehicles are operated over 
trackage subject to a railroad operating rule requiring flagging. 
Flagging kits must comply with the requirements specified in the 
operating rules of railroads over which the equipment is being 
operated. This requirement applies to each on-track roadway maintenance 
machine or hi-rail vehicle that is being operated alone or as the lead 
or trailing piece of equipment in a roadway work group operating under 
the same occupancy authority. Flagging kits are not needed, and thus 
are not required, for machines and hi-rail vehicles that are being 
operated as middle vehicles in a single roadway work group. However, 
vehicles must be under the same occupancy authority to be considered 
part of a single group.

Section 214.523--Hi-Rail Vehicles

    This section prescribes certain inspection and record keeping 
requirements for all hi-rail vehicles, new as well as existing. It also 
prescribes specific requirements applied to only new hi-rail vehicles.
    By definition, hi-rail vehicles have retractable flanged wheels 
giving them the ability to operate over the general highway system as 
well as on the railroad track. Operation of these vehicles over the 
general highway system requires the vehicle to be manufactured to meet 
Federal Motor Vehicle Safety Standards.
    Paragraph (a) requires that all hi-rail vehicles must have the 
safety critical components of the hi-rail gear inspected at least 
annually. Tram, wheel wear and gage measurements must be checked at 
least annually and adjusted, if necessary, to provide for continued 
safe operation. If the hi-rail vehicle is involved in a derailment or 
highway accident, it shall be inspected and necessary repairs or 
adjustments made in the hi-rail gear prior to its next operation on the 
railroad track. An inspection of a hi-rail vehicle following a 
derailment or highway accident may consist of a cursory safety check to 
ensure that the vehicle remains safe to operate; it need not be a full 
inspection comparable to the required annual inspection.
    Paragraph (b) specifies a record keeping requirement to document 
the safety inspections. Records may be retained on paper forms devised 
by the employer, or they may be stored electronically in a computer 
data base. The employer shall maintain each record for at least one 
year, and the records shall be made available for inspection and 
copying by the FRA during normal business hours. The records may be 
kept on the hi-rail vehicle itself, or maintained at a location 
designated by the employer.
    The requirements specific to only new hi-rail vehicles are 
contained in Paragraph (c). Each new hi-rail vehicle shall be equipped 
with:
     An automatic change-of-direction alarm or backup alarm 
which produces an audible signal that is at least three seconds long, 
loud enough to be heard by roadway workers and other machine operators 
within the immediate work area, and uniquely distinguishable from any 
surrounding noise.
     An operative warning light or beacon mounted to the roof 
of the vehicle and designed to intermittently flash or rotate 360 
degrees. The Task Group did not discuss requirements for a particular 
color for the warning light or beacon. FRA requests comments about 
whether or not the final rule should specify a color for the warning 
light and if so, what color is appropriate.
    Paragraph (c) does not specify a decibel level required for the 
change-of-direction or backup alarms on hi-rail vehicles. Rather, the 
proposed standard for loudness of these devices is ``loud enough to be 
heard by roadway workers and other machine operators within the 
immediate area.'' Such a standard may invite too many variables, making 
it difficult for FRA to enforce. FRA invites comment about whether or 
not a decibel standard should be required for these devices, and if so, 
what that decibel level should be.
    Paragraph (d) requires the operator of each new hi-rail vehicle to 
inspect the vehicle for compliance with this subpart prior to each 
daily operation of that vehicle.
    Paragraph (e) requires that any non-complying condition that cannot 
be repaired immediately should be tagged and dated in a manner 
prescribed by the employer and promptly reported to the employer's 
designated official.
    Paragraph (f) states that defective automatic change-of-direction 
or backup alarms and 360-degree intermittent

[[Page 1939]]

warning lights or beacons must be repaired or replaced as soon as 
practical within seven calendar days.

Section 214.525--Towing With On-Track Roadway Maintenance Machines or 
Hi-Rails Vehicles

    This section prescribes the manner in which on-track roadway 
maintenance machines or hi-rail may be used to tow pushcars or other 
on-track roadway maintenance machines.
    Paragraph (a) specifies that whenever an on-track roadway 
maintenance machine or hi-rail is used to tow other equipment, it must 
provide a safe and secure attachment with a towing bar or other 
coupling device designed for that purpose.
    The towing of pushcars or other on-track roadway maintenance 
equipment is prohibited under paragraph (b) when such an operation 
would exceed the braking capabilities of the on-track roadway 
maintenance machine or hi-rail doing the towing. When determining 
whether or not the braking capability of a machine or vehicle would be 
exceeded, the employer must also consider the track gradient or slope 
in the area, as well as the number and weight of pushcars or other 
equipment being towed. Paragraph (b) does not cover locomotives hauling 
conventional rail cars used in track maintenance work, such as ballast 
cars. Such locomotives must meet the requirements in 49 CFR part 229 
(Railroad Locomotive Safety Standards).

Section 214.527--On-Track Roadway Maintenance Machines: Inspection for 
Compliance; Schedule for Repairs

    This section prescribes the manner in which on-track roadway 
maintenance machines are to be inspected and repaired. Paragraph (a) 
requires the operator of an on-track roadway maintenance machine to 
perform a daily inspection of that machine for compliance with the 
requirements of this subpart. The inspection must take place prior to 
each daily operation of that machine. Under paragraph (b), any non-
complying condition that cannot be immediately repaired must be tagged 
and dated according to established employer procedures and reported to 
the designated official.
    Paragraph (c) allows for continued operation of on-track roadway 
maintenance machines with noted non-complying conditions subject to 
certain requirements:
     A machine with non-complying headlights or work lights may 
be operated only between the period from \1/2\ hour before sunrise to 
\1/2\ hour after sunset for seven calendar days. In other words, it may 
not be operated during the darkness between sunset and sunrise. The \1/
2\ hour before sunrise (dawn) and the \1/2\ hour after sunset (dusk) 
are thought to provide enough light for safe operation on a temporary 
basis.
     Portable horns may be substituted for non-complying or 
missing horns or other audible warning devices for no more than seven 
calendar days.
     Temporary portable fire extinguishers that are readily 
available for use may replace missing, defective, or discharged 
permanent fire extinguishers on new on-track roadway maintenance 
machines for seven calendar days, after which time the permanent fire 
extinguisher must be replaced or repaired.
     Non-complying change-of-direction alarms or backup alarms, 
and 360-degree intermittent warning lights or beacons shall be repaired 
or replaced as soon as practical within seven calendar days.
     A structurally defective or missing operator seat shall be 
replaced or repaired within 24 hours, or by the start of the machine's 
next tour of duty, whichever is later. This paragraph provides 
flexibility for the employer in cases where the operator seat is found 
to be defective on a Thursday afternoon and the next tour of duty for 
that machine is not scheduled until the following Monday. If the 
operator's seat becomes defective during the machine's tour of duty, 
the machine may be operated for the remainder of the operator's tour of 
duty only if it is determined that the operation may continue in a safe 
manner.

Section 214.529--In-Service Failure of Primary Braking System

    Paragraph (a) states that in the event of a total in-service 
failure of an on-track roadway maintenance machine's primary braking 
system, the machine may be operated for the remainder of the tour of 
duty through the use of a secondary braking system, if the machine is 
so equipped, or by coupling to another on-track roadway maintenance 
machine. In either case, the employer must determine that continued 
operation of the machine is safe. FRA is considering adding to this 
section criteria to be used by the employer in determining the safety 
of continuing to use an on-track roadway maintenance machine after its 
primary braking system has experienced a total in-service failure. FRA 
seeks comments about the need for such criteria and what the criteria 
should include.
    Paragraph (b) states that in the event of a total in-service 
failure of an on-track roadway maintenance machine's primary braking 
system, when no secondary braking system is available and no other 
machine is available for coupling, the machine may, if it is determined 
to be safe to do so, travel to a clearance or repair point where it 
shall be placed out of service until repaired.

Section 214.531--Schedule of Repairs

    This section specifies a general schedule of repairs for all on-
track roadway maintenance machines and hi-rail vehicles. If an on-track 
roadway maintenance machine or hi-rail vehicle does not meet all of the 
requirements of this subpart, it shall be repaired as soon as practical 
within seven days.
    More restrictive requirements for repairs to on-track roadway 
maintenance machines apply for missing or defective operator seats as 
prescribed in Sec. 214.527(c)(5), as well as a total in-service failure 
of a primary braking system as prescribed in Sec. 214.529. In the event 
necessary parts for the repair of a non-complying on-track roadway 
maintenance machine or hi-rail vehicle are not in the employer's 
inventory and must be ordered, the repair schedule is governed by the 
requirements specified in Sec. 214.533 which addresses the availability 
of repair parts.

Section 214.533--Schedule of Repairs: Subject to Availability of Parts

    Under paragraph (a) of this section, when necessary parts needed to 
repair a non-complying condition on an on-track roadway maintenance 
machine or new hi-rail vehicle are not in the employer's inventory, the 
employer must order the necessary parts by the end of the next business 
day following the report of the non-complying condition.
    Paragraph (b) requires the employer to repair the non-complying on-
track roadway maintenance machine or new hi-rail within seven days 
after receiving the necessary parts. However, if the non-complying 
condition still exists 30 days after the initial report of the 
condition, regardless of the reason, the employer must remove the on-
track roadway maintenance machine or new hi-rail from service until the 
condition is brought into compliance. FRA realizes that there may be 
times when parts needed for repairs are difficult or impossible for the 
employer to obtain. The employer may continue to use the on-track 
roadway maintenance machine or new hi-rail with a non-complying 
condition until the necessary parts for repair are received, subject to 
the requirements of Sec. 214.503. The defective machine or hi-rail must 
be removed

[[Page 1940]]

from service 30 days after the defect is reported. This provision 
prevents the use of a defective on-track roadway maintenance machine or 
new hi-rail for a protracted and undetermined length of time.
    Paragraph (c) states that if the employer fails to order the 
necessary parts as required in paragraph (a) of this section, or fails 
to install the repair parts within seven days after receiving them as 
required in paragraph (b) of this section, it must remove the on-track 
roadway maintenance machine or new hi-rail from service until it is 
brought into compliance.
    To ensure that the provisions of this section are followed, FRA 
must be able to review records concerning the ordering and installation 
of parts necessary to repair machines and hi-rails. Paragraph (d) 
requires the employer to maintain for one year records relating to the 
ordering and installation of repair parts on-track roadway maintenance 
machines and new hi-rails. The employer may decide how and where the 
records are kept. The records may be electronic or on paper. They may 
be stored on the vehicles or in a location chosen and designated by the 
employer.

Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies

    This NPRM has been evaluated in accordance with existing policies 
and procedures. It is considered to be non-significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034, 
February, 26, 1979). FRA has prepared and placed in the docket a 
regulatory analysis addressing the economic impact of the rule. 
Document inspection and copying facilities are available at 1120 
Vermont Avenue, NW., Seventh Floor, Washington, DC. Photocopies also 
may be obtained by submitting a written request to the FRA Docket 
Clerk, Office of Chief Counsel, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590.
    This proposal would cost about $1,250,000 per year. About 40% of 
that or $500,000 per year would go into safety enhancements which serve 
to prevent accidents and acute injuries of the type usually reported to 
FRA. That portion would generate benefits of about $1,900,000 per year. 
The remainder of the proposal would address long term risks like skin 
cancer and chronic diseases related to silica exposure, or would 
address event mitigation, through requiring first-aid kits and fire 
extinguishers. FRA does not have a good way to quantify that portion of 
the benefit, although existing industry practices, and the willing 
participation of the representatives of the railroads are substantial 
evidence that the burden is likely not to be very great. The almost 
infinite variety of equipment involved combined with limited 
information collection resources and reporting detail, make it 
impossible more accurately to measure the problem without a substantial 
expenditure of resources. But in consultation with our industry 
partners, we have agreed that there is a risk reduction opportunity. We 
have, together, come up with a reasonable minimum set of precautions 
and measures, at a reasonable level of costs, that we believe will 
achieve the desired reduction in risk. Our industry partners will 
willingly absorb these new costs because they believe it is justified 
to do so.
    A significant portion of the costs of environmental controls will 
be offset by productivity enhancements. The vast majority of new 
roadway maintenance machines are ordered with air conditioning because 
it enhances productivity. There may be some cases in which the 
additional productivity does not offset the cost of the environmental 
controls, but there will be a safety benefit in terms of reduced long 
term exposure to silica dust.
    FRA found one fatal accident in the years 1996-2000 which would 
have been prevented by the proposed rule. In that case a contract 
employee fell off a crane, which then rolled over him. The proposal 
would have required a safe place to ride on the crane and likely would 
have prevented the fatality. See FRA accident file CFE-4-97, 6/23/97, 
Fort Worth, Texas.
    FRA analyzed the costs estimates provided to the task group by AAR. 
FRA believes that the number of units affected was estimated as too 
high a number by AAR, and has adjusted its estimates accordingly, but 
FRA seeks comments from knowledgeable parties regarding the number of 
units affected by each provision, the unit cost of the provision as it 
applies to those roadway maintenace machines, the annual maintenance 
and upkeep costs of the proposal, and the benefits of the proposal, 
including any particular serious accidents which FRA has overlooked in 
its analysis, which may be found in the public docket.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of proposed and final rules to assess their impact on 
small entities. FRA has prepared and placed in the docket an Initial 
Regulatory Flexibility Assessment (IRFA) which assesses the small 
entity impact on this proposal. Document inspection and copying 
facilities are available at 1120 Vermont Avenue, 7th floor, Washington, 
DC. Photocopies may also be obtained by submitting a written request to 
the FRA Docket Clerk at the Office of Chief Counsel, Federal Railroad 
Administration, 400 Seventh Street, SW., Washington, DC 20590.
    ``Small entity'' is defined in 5 U.S.C. 601 as a small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. The U.S. Small Business Administration (SBA) 
has authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a railroad business ``line-haul operation'' that 
has fewer than 1,500 employees and a ``switching and terminal'' 
establishment with fewer than 500 employees. SBA's ``size standards'' 
may be altered by Federal agencies, in consultation with SBA and in 
conjunction with public comment.
    Pursuant to that authority, FRA has published an interim policy 
which formally establishes ``small entities'' as being railroads which 
meet the line haulage revenue requirements of a Class III railroad. 
Currently, the revenue requirements are $20 million or less in annual 
operating revenue. The $20 million limit is based on the Surface 
Transportation Board's (STB's) threshold of a Class III railroad 
carrier, which is adjusted by applying the railroad revenue deflator 
adjustment (49 CFR part 1201). The same dollar limit on revenues is 
established to determine whether a railroad shipper or contractor is a 
small entity. FRA proposes to use this alternative definition of 
``small entity'' for this rulemaking. Since this is an alternative 
definition, FRA is using it in consultation with the SBA and requests 
public comments on its use.
    FRA took steps during the proceedings for this rulemaking to 
minimize the adverse effects of the proposal on small entities. FRA 
invited the American Short Line Railroad Administration (ASLRRA) to be 
a member of the task group. ASLRRA declined, securing representation by 
the individual also representing the AAR. It appears the proposal will 
have a minimal effect on small entities as the overwhelming majority of 
roadway maintenance machines owned by small entities were manufactured 
before 1990, and would be exempt from the proposal. FRA was careful to 
limit retrofit requirements, which might have imposed an undue burden 
on small

[[Page 1941]]

entities. There appears to be no substantial impact on a significant 
number of small entities. FRA seeks comments on the effect of the 
accompanying proposal on small entities.
    The IRFA concludes that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
Thus, FRA certifies that this proposed rule is not expected to have a 
``significant'' economic impact on a ``substantial'' number of small 
entities. In order to determine the significance of the economic impact 
for the final rule's Regulatory Flexibility Assessment (RFA), FRA 
invites comments from all interested parties concerning the potential 
economic impact on small entities caused by this proposed rule. The 
Agency will consider the comments and data it receives, or lack 
thereof, in making a decision on the RFA for the final rule.

C. Paperwork Reduction Act

    The information collection requirements in this amendment to the 
final rule have been submitted for approval to the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 
3501 et seq. The sections that contain the new information collection 
requirements of the Subpart D, which will be added to those of the 
Roadway Worker Protection Final Rule (49 CFR part 214), and the 
estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                  Respondent      Total annual     Average time    Total annual    Total amount
         CFR Section               universe        responses      per  response    burden hours     burden cost
----------------------------------------------------------------------------------------------------------------
214.503--Good Faith            50,000 Roadway   250              10 minutes.....              42           1,260
 Challenges; Procedures for     Workers.         notifications.
 Notification and Resolution.
--Resolution Procedures......  685 Railroads..  20 procedures..  2 hours........              40           1,520
214.505--Req'd Environmental   685 Railroads..  30 lists.......  2.5 hours......              75           2,850
 Control and Protection
 Systems For New On-Line
 Roadway Maintenance Machines
 with Enclosed Cabs.
--Designated Machines........  685 Railroads..  20 add'l         5 minutes......               2              76
                                                 machine.
214.511--Req'd Audible         685 Railroads..  250 mechanisms.  5 minutes......              21             630
 Warning Devices For New On-
 Track Roadway Maintenance
 Machines.
214.513--Retrofitting of       685 Railroads..  1,200 stencils.  5 minutes......             100           3,000
 Existing On-Track Roadway
 Maintenance Machines.
--Identification of            685 Railroads..  4,000            5 minutes......             333           9,990
 Triggering Mechanism--Horns.                    mechanisms.
214.515--Overhead Covers For   685 Railroads..  1,050 requests   10 minutes + 20             525          18,550
 Existing On-Track Roadway                       + 050            minutes.
 Maintenance Machines.                           responses.
214.517--Retrofitting of       685 Railroads..  6,000 stencils.  5 minutes......             500          15,000
 Existing On-Track Roadway
 Maintenance Machines
 Manufactured After 1990.
214.523--Hi-Rail Vehicles....  685 Railroads..  3,000 insp.      30 minutes.....           1,500          45,000
                                                 record.
--Non-Complying Conditions...  685 Railroads..  250 tags + 250   5 min. + 5 min.              84           2,250
                                                 reports.
214.527--inspection for        685 Railroads..  550 tags + 550   5 min. + 5 min.             184           5,520
 Compliance; Repair Schedules.                   reports.
214.533--Schedule of Repairs;  685 Railroads..  250 records....  15 minutes.....              63           2,394
 Subject to Availability of
 Parts.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), the FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the function of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB contact Robert Brogan at 202-
493-6292.
    FRA believes that soliciting public comment will promote its 
efforts to reduce the administrative and paperwork burdens associated 
with the collection of information mandated by Federal regulations. In 
summary, FRA reasons that comments received will advance three 
objectives: (i) reduce reporting burdens; (ii) ensure that it organizes 
information collection requirements in a ``user friendly'' format to 
improve the use of such information; and (iii) accurately assess the 
resources expended to retrieve and produce information requested. See 
44 U.S.C. 3501.
    Comments must be received no later than March 12, 2001. 
Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Robert 
Brogan, Federal Railroad Administration, RRS-21, Mail Stop 17, 1120 
Vermont Ave., NW., MS-17, Washington. DC 20590.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain

[[Page 1942]]

current OMB control numbers for any new information collection 
requirements resulting from this rulemaking action prior to the 
effective date of a final rule. The OMB control number, when assigned, 
will be announced by separate notice in the Federal Register.

D. Environmental Impact

    FRA has evaluated these regulations in accordance with its 
procedures for ensuring full consideration of the environmental impact 
of the FRA actions, as required by the National Environmental Policy 
Act (42 U.S.C. 4321 et. seq.), other environmental statutes, Executive 
Orders, and DOT Order 5610.1c. This NPRM meets the criteria that 
establish this as a non-major action for environmental purposes.

E. Federalism Implications

    FRA has analyzed this NPRM in accordance with the principles and 
criteria contained in Executive Order 13132 issued on August 4, 1999, 
which directs Federal agencies to exercise great care in establishing 
policies that have federalism implications. See 64 FR 43255. From the 
information FRA has at this time, it is apparent that the rule as 
proposed may have federalism implications. The governance of safety of 
hi-rail vehicles may have an unintended effect on state laws addressing 
the safety of these vehicles as they are operated over roads and 
highways. The rule proposed in this document is meant to cover the 
safety of hi-rail vehicles only while they are operated on railroad 
tracks. The proposed requirements on hi-rail vehicles are not intended 
to preempt any state laws addressing motor vehicles. FRA requests 
comments concerning what state laws, if any, may be affected by this 
proposed rule.
    If it is determined through the comment period that federalism is 
impacted, FRA will document its consultations with State and local 
officials as appropriate and will prepare a federalism summary impact 
statement to accompany the final rule. FRA will continue to consult 
with State and local officials during this rulemaking proceeding. The 
RSAC, which recommended this proposed rule, has as permanent members 
two organizations representing State and local interests: the American 
Association of State Highway and Transportation Officials (AASHTO) and 
the Association of State Rail Safety Managers (ASRSM). The RSAC 
regularly provides recommendations to the FRA Administrator for 
solutions to regulatory issues that reflect significant input from its 
State members.

F. Unfunded Mandates Reform Act of 1995

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

List of Subjects in 49 CFR Part 214

    Bridges, Occupational safety and health, Penalties, Railroad 
safety, Reporting and record keeping requirements.

The Proposed Rule

    In consideration of the foregoing, FRA proposes to amend Part 214, 
Title 49, Code of Federal Regulations as follows:
    1. The authority citation for Part 214 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.

    2. Section 214.7 is amended by adding in alphabetical order 
definitions as follows:


Sec. 214.7  Definitions.

* * * * *
    Designated official means any person(s) designated by the employer 
to receive notification of non-complying conditions on-track roadway 
maintenance machines and hi-rail vehicles.
* * * * *
    Hi-rail vehicle means a roadway maintenance machine that is 
manufactured to meet Federal Motor Vehicle Safety Standards and is 
equipped with retractable flanged wheels so that the vehicle may travel 
over the highway or on railroad tracks.
    Hi-rail vehicle, new means a hi-rail vehicle that is ordered after 
[date 90 days following the effective date of this rule] or completed 
after [date one year following the effective date of this rule].
* * * * *
    On-track roadway maintenance machine means a self-propelled, rail 
mounted, non-highway, maintenance machine whose light weight is in 
excess of 7,500 pounds, and whose purpose is not for the inspection of 
railroad track.
    On-track roadway maintenance machine, existing means any on-track 
roadway maintenance machine that does not meet the definition of a new 
on-track roadway maintenance machine.
    On-track roadway maintenance machine, new means an on-track roadway 
maintenance machine that is ordered after [date 90 days following the 
effective date of this rule] and completed after [date one year 
following the effective date of this rule].
* * * * *
    3. Subpart D is added to part 214 reading as follows:
Subpart D--On-Track Roadway Maintenance Machines and Hi-Rails
Sec.
214.501   Purpose and scope.
214.503   Good faith challenges; procedures for notification and 
resultion.
214.505   Required environmental control and protection systems for 
new on-track roadway maintenance machines with enclosed cabs.
214.507   Required safety equipment for new on-track roadway 
maintenance machines.
214.509   Required visual illumination and reflective devices for 
new on-track roadway maintenance machines.
214.511   Required audible warning devices for new on-track roadway 
maintenance machines.
214.513   Retrofitting of existing on-track roadway maintenance 
machines.
214.515   Overhead covers for existing on-track roadway maintenance 
machines.
214.517   Retrofitting on existing on-track roadway maintenance 
machines manufactured after 1990.
214.519   Floors, decks, stairs, and ladders for on-track roadway 
maintenance machines.
214.521   Flagging equipment for on-track roadway maintenance 
machines and hi-rail vehicles.
214.523   Hi-rail vehicles.
214.525   Towing with on-track roadway maintenance machines or hi-
rail vehicles.
214.527   Inspection for compliance; schedule for repairs.
214.529   In-service failure of primary braking system.
214.531   Schedule of repairs.

[[Page 1943]]

214.533   Schedule of repairs; subject to availability of parts.


Sec. 214.501  Purpose and scope.

    (a) The purpose of this subpart is to prevent accidents and 
casualties caused by the lawful operation of on-track roadway 
maintenance machines and hi-rail vehicles.
    (b) This subpart prescribes minimum safety standards for on-track 
roadway maintenance machines and hi-rail vehicles. An employer may 
prescribe additional or more stringent standards that are consistent 
with this subpart.
    (c) Any working condition that involves the protection of employees 
engaged in roadway maintenance duties covered by this subpart but is 
not within the subject matter addressed by this subpart, including 
employee exposure to noise, shall be governed by the regulations of the 
U.S. Department of Labor, Occupational Safety and Health Administration 
(29 CFR part 110).


Sec. 214.503  Good faith challenges; procedures for notification and 
resolution.

    (a) An employee operating an on-track roadway maintenance machine 
will inform the employer whenever the employee makes a good faith 
determination that the employer's rules governing the machine do not 
comply with FRA regulations.
    (b) Any employee charged with operating an on-track roadway 
maintenance machine covered by this subpart may refuse to operate the 
machine if the employee makes a good faith determination that it does 
not comply with this subpart or has a condition that prohibits its safe 
operation. The employer will not require the employee to operate the 
machine until the challenge resulting from the good faith determination 
is resolved.
    (c) Each employer will have in place, and will follow, written 
procedures to assure prompt and equitable resolution of challenges 
resulting from good faith determinations made in accordance with this 
section. The procedures will include specific steps to be taken by the 
employer to investigate each good faith challenge, as well as 
procedures to follow once the employer finds a challenged machine does 
not comply with this subpart or is otherwise unsafe to operate. The 
procedures will also include the title and location of the employer's 
designated official.


Sec. 214.505  Required environmental control and protection systems for 
new on-track roadway maintenance machines with enclosed cabs.

    (a) The following new on-track roadway maintenance machines will be 
equipped with enclosed cabs with operative heating systems, operative 
air conditioning systems, and operative positive pressurized 
ventilation systems:
    (1) Ballast regulators;
    (2) Tampers;
    (3) Mechanical brooms;
    (4) Rotary scarifiers;
    (5) Undercutters; or
    (6) Functional equivalents of any of the machines listed in the 
paragraph (a).
    (b) New on-track roadway maintenance machines, and existing roadway 
maintenance machines specifically designated by the employer, of the 
types listed in paragraph (a) of this section will be capable of 
protecting employees on the machines from exposure to air contaminants, 
in accordance with 29 CFR 1910.1000.
    (c) An employer will maintain a list of new and designated roadway 
maintenance machines of the types listed in paragraph (a) of this 
section. The list will be kept current and available to the Federal 
Railroad Administration and other Federal and state agencies upon 
request.
    (d) An existing roadway maintenance machine of the types listed in 
paragraph (a) of this section becomes ``designated'' when the employer 
adds the machine to the list required in paragraph (c) of this section. 
The designation is irrevocable, and the designated existing roadway 
maintenance machine remains subject to paragraph (b) of this section 
until it is retired or sold.
    (e) If the ventilation system on a new on-track roadway maintenance 
machine or a designated existing on-track roadway maintenance machine 
of the types listed in paragraph (a) of this section becomes incapable 
of protecting employees on the machine from exposure to air 
contaminants in accordance with 29 CFR 1910.1000, personal respiratory 
protective equipment will be provided for each operator of that machine 
until the machine is repaired in accordance with Sec. 214.531.
    (f) Personal protective equipment provided for operators of new on-
track roadway maintenance machines and designated existing on-track 
roadway maintenance machines of the types listed in paragraph (a) of 
this section will meet U.S. Department of Labor standards set forth in 
29 CFR 1910.134, including Appendices A, B-1, B-2, C, and D of that 
section.
    (g) New on-track roadway maintenance machines with enclosed cabs, 
other than the types listed in paragraph (a) of this section, will be 
equipped with operative heating and ventilation systems.
    (h) When new on-track roadway maintenance machines require 
operation from non-enclosed stations outside of the main cab, the non-
enclosed stations will be equipped, where feasible from an engineering 
standpoint, with a permanent or temporary roof, canopy, or umbrella 
designed to provide some cover from normal rain and midday sun.


Sec. 214.507  Required safety equipment for new on-track roadway 
maintenance machines.

    (a) Each new on-track roadway maintenance machine will be equipped 
with:
    (1) A seat for each operator, except as provided for in paragraph 
(b) of this section;
    (2) A safe and secure position with handholds, handrails, or a 
secure seat for each roadway worker transported on that machine, as 
well as protection from moving parts inside of the cab;
    (3) A positive method of securement for turntables through 
engagement of pins and hooks that block the descent of devices below 
the rail head when not in use;
    (4) A windshield with safety glass, or other material with similar 
properties, and power windshield wipers or suitable alternatives that 
provide the operator an equivalent level of vision if windshield wipers 
are incompatible with the windshield material;
    (5) A machine braking system capable of effectively controlling the 
movement of the machine under normal operating conditions;
    (6) A first aid kit that is readily accessible and meets U.S. 
Department of Labor requirements of 29 CFR 1926.50(d)(2); and
    (7) An operative and properly charged fire extinguisher of 5 BC 
rating or higher which is securely mounted and readily accessible to 
the operator from the operator's work station.
    (b) New on-track roadway maintenance machines designed to be 
operated and transported by the operator in a standing position will be 
equipped with handholds and handrails to provide the operator with a 
safe and secure position.
    (c) Each new on-track roadway maintenance machine that weighs more 
than 32,500 pounds light weight and is operated in excess of 20 mph 
will be equipped with a speed indicator that is accurate within 
 5 mph of actual speed at speeds 10 mph and above.
    (d) Each new on-track roadway maintenance machine will have the as-
built light weight displayed in a conspicuous location on the machine.

[[Page 1944]]

Sec. 214.509  Required visual illumination and reflective devices for 
new on-track roadway maintenance machines.

    Each new on-track roadway maintenance machine will be equipped with 
the following visual illumination and reflective devices:
    (a) An illumination device, such as a headlight, capable of 
illuminating obstructions on the track ahead in the direction of travel 
for a distance of 300 feet under normal weather and atmospheric 
conditions;
    (b) Work lights, if the machine is operated during the period from 
\1/2\ hour after sunset to \1/2\ hour before sunrise or in dark areas 
such as tunnels, unless equivalent lighting is otherwise provided;
    (c) An operative 360-degree intermittent warning light or beacon 
mounted on the roof of the machine. New roadway maintenance machines 
that are not equipped with fixed roofs and have a light weight greater 
than 7,000 pounds but less than 17,500 pounds are exempt from this 
requirement;
    (d) A brake light activated by the application of the machine 
braking system, and designed to be visible for a distance of 300 feet 
under normal weather and atmospheric conditions; and
    (e) Visual reflective equipment, such as rearview mirrors.


Sec. 214.511  Required audible warning devices for new on-track roadway 
maintenance machines.

    Each new on-track roadway maintenance machine will be equipped 
with:
    (a) A horn or audible warning device that produces a sound loud 
enough to be heard by roadway workers and other machine operators 
within the immediate work area. The triggering mechanism for the device 
shall be clearly identifiable and within easy reach of the machine 
operator; and
    (b) An automatic change-of-direction alarm which provides an 
audible signal that is at least three seconds long and is 
distinguishable from the surrounding noise.


Sec. 214.513  Retrofitting of existing on-track roadway maintenance 
machines.

    (a) Each existing on-track roadway maintenance machine will have a 
safe and secure position for each roadway worker transported on that 
machine and protection from moving parts inside the cab.
    (b) By [date one year following the effective date of this rule], 
each existing on-track roadway maintenance machine will have stenciling 
or documentation on the machine identifying the location of safe and 
secure positions for the machine operator and roadway workers to be 
transported on the machine. If roadway workers are not permitted on the 
machine, the prohibition will be noted by the stenciling or 
documentation on the machine.
    (c) By [date 18 months following the effective date of this rule], 
each existing on-track roadway maintenance machine will be equipped 
with a permanent or portable horn or audible warning device that 
produces a sound loud enough to be heard by roadway workers and other 
machine operators within the immediate work area. The triggering 
mechanism for the device will be clearly identifiable and within easy 
reach of the machine operator.
    (d) By [date 18 months following the effective date of this rule], 
each existing on-track roadway maintenance machine will be equipped 
with a permanent illumination device or a portable light that is 
securely placed and not hand-held. The illumination device or portable 
light will be capable of illuminating obstructions on the track ahead 
for a distance of 300 feet under normal weather and atmospheric 
conditions when the machine is operated during the period from \1/2\ 
hour after sunset to \1/2\ hour before sunrise or in dark areas such as 
tunnels.


Sec. 214.515  Overhead covers for existing on-track roadway maintenance 
machines.

    (a) Overhead covers on existing on-track roadway maintenance 
machines will be repaired by [date 18 months following the effective 
date of this rule] and thereafter maintained in accordance with the 
provisions of Sec. 214.531.
    (b) The employer will evaluate the feasibility of providing an 
overhead cover for an existing on-track roadway maintenance machine if 
requested in writing by the operator assigned to operate that machine 
or by the operator's designated representative. The employer will 
provide the operator a written response for each request within 60 
days. When the employer finds the addition of an overhead cover is not 
feasible, the response will include an explanation of the reasoning 
used by the employer to reach that conclusion.


Sec. 214.517  Retrofitting of existing on-track roadway maintenance 
machines manufactured after 1990.

    In addition to the requirements of Sec. 214.513, after [date 18 
months following the effective date of this rule], each existing on-
track roadway maintenance machine manufactured after 1990 must have the 
following:
    (a) A change-of-direction alarm or rearview mirror or other 
rearward viewing device, if feasible from an engineering standpoint;
    (b) An operative heater, when the machine is equipped with a heater 
by the manufacturer and is operated at an ambient temperature less than 
50 degrees Fahrenheit;
    (c) The light weight of the machine stenciled, or otherwise clearly 
displayed, on the machine if the light weight is known;
    (d) Reflective material, or a reflective device, or operable brake 
lights;
    (e) Safety glass when glass is normally replaced, except that 
replacement glass that is specifically intended for on-track roadway 
maintenance machines and is in the employer's inventory as of 
[effective date of this rule] may be utilized until exhausted;
    (f) A turntable restraint device to prevent undesired lowering, or 
a warning light indicating that the turntable is not in the normal 
travel position; and
    (g) Handholds, handrails, or a secure seat or bench position for 
each roadway worker transported on the machine.


Sec. 214.519  Floors, decks, stairs, and ladders for on-track roadway 
maintenance machines.

    Floors, decks, stairs, and ladders of on-track roadway maintenance 
machines will be of appropriate design and maintained to provide secure 
access and footing, and will be free of oil, grease, or any obstruction 
which creates a slipping, falling, or fire hazard.


Sec. 214.521  Flagging equipment for on-track roadway maintenance 
machines and hi-rail vehicles.

    When operating over trackage subject to a railroad operating rule 
requiring flagging, each on-track roadway maintenance machine and each 
hi-rail vehicle will have on board a flagging kit that complies with 
the operating rules of the railroad if the equipment is not part of a 
roadway work group or is the lead or trailing piece of equipment in a 
roadway work group operating under the same occupancy authority.


Sec. 214.523  Hi-rail vehicles.

    (a) The hi-rail gear of all hi-rail vehicles will be safety 
inspected at least annually. Tram, wheel wear and gage measurements 
will be adjusted if necessary to allow the vehicle to be safely 
operated.
    (b) Each employer will keep records pertaining to compliance with 
paragraph (a) of this section. Records may be kept on forms provided by 
the employer or by electronic means. The employer will retain each 
record for at least one year, and the records will be available for 
inspection and copying by

[[Page 1945]]

the Federal Railroad Administration during normal business hours. The 
records may be kept on the hi-rail vehicle or at a location designated 
by the employer.
    (c) A new hi-rail vehicle will be equipped with:
    (1) An automatic change-of-direction alarm or backup alarm that 
provides an audible signal at least three seconds long and 
distinguishable from the surrounding noise; and
    (2) An operable 360-degree intermittent warning light or beacon 
mounted on the outside of the vehicle.
    (d) Prior to starting work each day, the operator of a new hi-rail 
vehicle will check the hi-rail vehicle for compliance with this 
subpart.
    (e) Non-complying conditions that cannot be repaired immediately 
will be tagged and dated in a manner prescribed by the employer and 
reported to the designated official.
    (f) Non-complying automatic change-of-direction alarms, backup 
alarms, or 360-degree intermittent warning lights or beacons will be 
repaired or replaced as soon as practical within seven days.


Sec. 214.525  Towing with on-track roadway maintenance machines or hi-
rail vehicles.

    (a) When used to tow pushcars or other maintenance-of-way 
equipment, each on-track roadway maintenance machine or hi-rail vehicle 
will be equipped with a towing bar or other coupling device that 
provides a safe and secure attachment.
    (b) An on-track roadway maintenance machine or hi-rail vehicle will 
not be used to tow pushcars or other maintenance-of-way equipment if 
the towing would cause the machine or hi-rail vehicle to exceed the 
capabilities of its braking system. In judging the limit of the braking 
system, the employer will consider the track grade (slope), as well as 
the number and weight of pushcars or other equipment being towed.


Sec. 214.527  Inspection for compliance; schedule for repairs.

    (a) Prior to starting work each day, the operator of the on-track 
roadway maintenance machine will check the machine components for 
compliance with this subpart.
    (b) Non-complying conditions that cannot be repaired immediately 
will be tagged and dated in a manner prescribed by the employer and 
reported to the designated official.
    (c) The operation of an on-track roadway maintenance machine with 
noted non-complying conditions will be governed by the following 
requirements:
    (1) An on-track roadway maintenance machine with headlights or work 
lights that are not in compliance may be operated from \1/2\ hour 
before sunrise to \1/2\ hour after sunset for seven calendar days;
    (2) Portable horns may be substituted for non-complying or missing 
horns for a period not to exceed seven calendar days;
    (3) Fire extinguishers readily available for use may temporarily 
replace missing, defective or discharged fire extinguishers on new on-
track roadway maintenance machines for a period not to exceed seven 
calendar days pending the permanent replacement or repair of the 
missing, defective or used fire extinguisher;
    (4) Non-complying automatic change-of-direction alarms, backup 
alarms, or 360-degree intermittent warning lights or beacons will be 
repaired or replaced as soon as practical within seven calendar days; 
and
    (5) A structurally defective or missing operator seat will be 
replaced or repaired within 24 hours or by the start of the machine's 
next tour of duty, whichever is later. The machine may be operated for 
the remainder of the operator's tour of duty if the defective or 
missing operator seat does not prevent its safe operation.


Sec. 214.529  In-service failure of primary braking system.

    (a) In the event of a total in-service failure of its primary 
braking system, an on-track roadway maintenance machine may be operated 
for the remainder of the tour of duty with the use of a secondary 
braking system or by coupling to another machine, if such operations 
may be done safely.
    (b) If the total in-service failure of an on-track roadway 
maintenance machine's primary braking system occurs where other 
equipment is not available for coupling, the machine may, if it is safe 
to do so, travel to a clearance or repair point where it shall be 
placed out of service until repaired.


Sec. 214.531  Schedule of repairs.

    Except as provided in Secs. 214.527(c)(5), 214.529, and 214.533, an 
on-track roadway maintenance machine or new hi-rail vehicle that does 
not meet all the requirements of this subpart will be repaired as soon 
as practical within seven calendar days. If repairs are not made within 
seven calendar days, the on-track roadway maintenance machine or new 
hi-rail vehicle will be placed out of service.


Sec. 214.533  Schedule of repairs; subject to availability of parts.

    (a) The employer will order parts necessary to repair a non-
complying condition on an on-track roadway maintenance machine or a new 
hi-rail vehicle by the end of the next business day following the 
report of the defect.
    (b) When the employer cannot repair a non-complying condition as 
required by Sec. 214.531 because of the temporary unavailability of 
necessary parts, the employer will repair the on-track roadway 
maintenance machine or new hi-rail vehicle within seven days after 
receiving the necessary parts. The employer may continue to use the on-
track roadway maintenance machine or new hi-rail with a non-complying 
condition until the necessary parts for repair are received, subject to 
the requirements of Sec. 214.503. However, if repair of a non-complying 
condition exceeds 30 days following the report of the defect, the 
employer will remove the on-track roadway maintenance machine or new 
hi-rail vehicle from service.
    (c) If the employer fails to order parts necessary to repair the 
reported non-complying condition, or if it fails to install available 
parts within the required seven calendar days, the on-track roadway 
maintenance machine or new hi-rail vehicle will be removed from service 
until brought into compliance with this subpart.
    (d) Each employer will maintain records pertaining to compliance 
with this section. Records may be kept on forms provided by the 
employer or by electronic means. The employer will retain each record 
for at least one year, and the records will be available for inspection 
and copying by the Federal Railroad Administration during normal 
business hours. The records may be kept on the on-track roadway 
maintenance machine or new hi-rail vehicle or at a location designated 
by the employer.

    Issued in Washington, DC, on January 4, 2001.
John V. Wells,
Acting Federal Railroad Administrator.
[FR Doc. 01-591 Filed 1-9-01; 8:45 am]
BILLING CODE 4910-06-P