[Federal Register Volume 70, Number 27 (Thursday, February 10, 2005)]
[Rules and Regulations]
[Pages 7047-7050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2560]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2001-10426]
RIN 2130-AA48


Railroad Workplace Safety

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

ACTION: Interim final rule.

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SUMMARY: FRA is amending regulations on Railroad Workplace Safety to 
clarify an ambiguous provision concerning the circumstances under which 
life vests or buoyant work vests are required for bridge workers 
working over water.

DATES: Effective Date: This rule becomes effective April 11, 2005.
    Written Comments: Written comments must be received no later than 
March 28, 2005. Comments received after that date will be considered to 
the extent possible without incurring additional expense or delay.

ADDRESSES: You may submit comments, identified by DOT DMS Docket Number 
FRA-2001-10426, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the

[[Page 7048]]

online instructions for submitting comments.
     Web site: Go to http://dms.dot.gov. Follow the 
instructions for submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov, including any personal information 
provided. Please see the Privacy Act heading under Regulatory Impact, 
below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Gordon A. Davids, Bridge Engineer, 
Office of Safety, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 
(telephone: 202-493-6320); or Anna Nassif, Trial Attorney, Office of 
Chief Counsel, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 
(telephone: 202-493-6166).

SUPPLEMENTARY INFORMATION:

Public Participation

    The Administrative Procedure Act (5 U.S.C. 551-559) permits an 
agency to dispense with notice of rulemaking when it is otherwise not 
required by statute and the agency ``for good cause finds that notice 
and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' 5 U.S.C. 553(b)(B). FRA finds that 
notice and public participation are, in this case, unnecessary and 
contrary to the public interest for the reasons set forth below.
    These amendments do not expand the scope of the rule, nor do they 
impose additional burdens on those covered by the rule. Moreover, FRA 
finds that any further delay in issuance of this rule could perpetuate 
confusion or inconsistencies regarding the use of personal floatation 
devices in conjunction with effective fall prevention measures. FRA 
believes that the identification of inconsistent safety requirements 
and the noncontroversial nature of the amendments necessary to make the 
requirements consistent justify the issuance of an interim final rule. 
FRA will consider, however, any comments received during the post-
publication comment period before it issues a final rule in this 
proceeding.

Background

    On June 24, 1992, FRA issued Railroad Workplace Safety Regulations 
in 49 CFR part 214. 57 FR 28127. Subsequent amendments to that 
regulation have added subpart C, Roadway Worker Protection, and subpart 
D, On-Track Roadway Maintenance Machines and Hi-Rail Vehicles. 61 FR 
65959 (December 16, 1996), 68 FR 44388 (July 28, 2003). Additional 
amendments have provided technical corrections and changes to improve 
the effectiveness of the regulation.
    FRA has since received a request from the Norfolk Southern Railway 
Company (NS) to permit NS employees who are working on a bridge deck 
over water to work without a life vest or buoyant work vest under 
circumstances in which falls are effectively prevented. NS refers to 
factual situations under the present regulation, where a bridge worker 
who is located 12 feet or more over the ground is prevented from 
falling by hand rails, walkways, or acceptable work procedures and is 
therefore not required to use a personal fall arrest system. However, 
if the same circumstances prevail on a bridge over water, the bridge 
worker is required to wear a life vest or buoyant work vest even though 
the bridge worker over water may have the same safety hand rails, 
walkways, or acceptable work procedures in place as the bridge worker 
has over dry land. FRA has considered this request, and has found that 
the situation addressed by NS is not limited to one railroad. FRA 
therefore considers it advisable to provide an industry-wide resolution 
by issuing a technical amendment to the regulation.
    The present regulation, in section 214.107, ``Working over or 
adjacent to water'' states, in part:

    (a) Bridge workers working over or adjacent to water with a 
depth of four feet or more, or where the danger of drowning exists, 
shall be provided and shall use life vests or buoyant work vests in 
compliance with U.S. Coast Guard requirements in 46 CFR 160.047, 
160.052, and 160.053. Life preservers in compliance with U.S. Coast 
Guard requirements in 46 CFR 160.055 shall also be within ready 
access. This section shall not apply to bridge workers using 
personal fall arrest systems or safety nets that comply with this 
subpart.
    (b) Life vests or buoyant work vests shall not be required when 
bridge workers are conducting inspections that involve climbing 
structures above or below the bridge deck.

    The present regulation also provides for circumstances in which 
bridge workers are not required to use personal fall arrest systems or 
safety nets while working at heights over land because the risk of 
falling is minimized by components of the bridge or by suitable work 
procedures. In particular, section 214.103, ``Fall protection, 
generally'' states:

    (a) Except as provided in paragraphs (b) through (d) of this 
section, when bridge workers work twelve feet or more above the 
ground or water surface, they shall be provided and shall use a 
personal fall arrest system or safety net system. All fall 
protection systems required by this section shall conform to the 
standards set forth in Sec.  214.105 of this subpart.
    (b)(1) This section shall not apply if the installation of the 
fall arrest system poses a greater risk than the work to be 
performed. In any action brought by FRA to enforce the fall 
protection requirements, the railroad or railroad contractor shall 
have the burden of proving that the installation of such device 
poses greater exposure to risk than performance of the work itself.
    (2) This section shall not apply to bridge workers engaged in 
inspection of railroad bridges conducted in full compliance with the 
following conditions:
    (i) The railroad or railroad contractor has a written program in 
place that requires training in, adherence to, and use of safe 
procedures associated with climbing techniques and procedures to be 
used;
    (ii) The bridge worker to whom this exception applies has been 
trained and qualified according to that program to perform bridge 
inspections, has been previously and voluntarily designated to 
perform inspections under the provision of that program, and has 
accepted the designation;
    (iii) The bridge worker to whom this exception applies is 
familiar with the appropriate climbing techniques associated with 
all bridge structures the bridge worker is responsible for 
inspecting;
    (iv) The bridge worker to whom this exception applies is engaged 
solely in moving on or about the bridge or observing, measuring and 
recording the dimensions and condition of the bridge and its 
components; and
    (v) The bridge worker to whom this section applies is provided 
all equipment necessary to meet the needs of safety, including any 
specialized alternative systems required.
    (c) This section shall not apply where bridge workers are 
working on a railroad bridge equipped with walkways and railings of 
sufficient height, width, and strength to prevent a fall, so long as 
bridge workers do

[[Page 7049]]

not work beyond the railings, over the side of the bridge, on 
ladders or other elevation devices, or where gaps or holes exist 
through which a body could fall. Where used in place of fall 
protection as provided for in Sec.  214.105, this paragraph (c) is 
satisfied by:
    (1) Walkways and railings meeting standards set forth in the 
American Railway Engineering Association's Manual for Railway 
Engineering; and
    (2) Roadways attached to railroad bridges, provided that bridge 
workers on the roadway deck work or move at a distance six feet or 
more from the edge of the roadway deck, or from an opening through 
which a person could fall.
    (d) This section shall not apply where bridge workers are 
performing repairs or inspections of a minor nature that are 
completed by working exclusively between the outside rails, 
including but not limited to, routine welding, spiking, anchoring, 
spot surfacing, and joint bolt replacement.

    The exceptions to the requirement for a personal fall arrest system 
or safety net are found in paragraphs (b) through (d) of Sec.  214.103. 
Sub-paragraph (b)(2), and paragraphs (c) and (d), address alternate 
means of fall protection. In strict application of the regulation, 
these exceptions may be used in appropriate circumstances by bridge 
workers working at heights over dry land, but do not relieve bridge 
workers from the requirement to use life vests or buoyant work vests 
when over water, even though the risk of a fall to the water is 
minimized.
    This inconsistency was not intended. FRA is therefore issuing this 
technical amendment to resolve the inconsistency. This amendment will 
permit the exceptions in Sec.  214.103 which presently only apply to 
the use of personal fall arrest systems and safety nets over dry land 
to also apply to the use of life vests or buoyant work vests while 
working over water. Including Sec.  214.103(b)(2) and its related sub-
paragraphs concerning bridge inspectors among the exceptions in Sec.  
214.107(a) makes Sec.  214.107(b) redundant. It is therefore being 
deleted.
    This amendment will have the effect, in a common example, of 
permitting a railroad track inspector, when on a bridge that is over 
water and equipped with effective handrails and walkways, to replace a 
joint bolt without having to wear a life vest or buoyant work vest, 
without the need to have a life preserver within ready access, and 
without the need for ring buoys and a boat or skiff in the water. The 
amendment should also have the beneficial effect of encouraging bridge 
owners to install effective fall prevention components on low bridges 
over water in order to improve labor efficiency.

Section-by-Section Analysis

Section 214.107 Working Over or Adjacent to Water

    This section sets forth standards for bridge workers working over 
or adjacent to water. Paragraph (a) requires that bridge workers must 
wear life vests or buoyant work vests in compliance with various Coast 
Guard requirements, when working over water, except where bridge 
workers are working with fall arrests systems or in compliance with the 
provisions of Sec.  214.103(b)(2), (c) or (d). These provisions 
establish exceptions to the general requirement for protection against 
drowning. The exceptions include situations where there is little or no 
risk of falling, since bridge workers are working on bridges with 
walkways and railings, or, when on bridges with roadways, are working 
more than six feet from the edge of a roadway deck or any opening 
through which they could fall.

Regulatory Impact

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of FRA's dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (volume 65, number 70; pages 19477-78), or you may visit 
http://dms.dot.gov.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This amendment clarifying the final rule has been evaluated in 
accordance with existing policies and procedures and is not considered 
significant under Executive Order 12866 or under DOT policies and 
procedures. The minor technical changes made in this amendment will not 
increase the costs or alter the benefits associated with this 
regulation to any measurable degree.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of rules to assess their impact on small entities. 
This amendment to the final rule clarifies existing requirements. The 
changes will have no new direct or indirect economic impact on small 
units of government, businesses, or other organizations. Therefore, it 
is certified that this rule will not have a significant economic impact 
on a substantial number of small entities under the provisions of the 
Regulatory Flexibility Act.

Paperwork Reduction Act

    There are no paperwork requirements associated with this amendment 
of the final rule.

Environmental Impact

    FRA has evaluated this amendment in accordance with its procedures 
for ensuring full consideration of the environmental impact of 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. The amendment meets the criteria establishing 
this as a non-major action for environmental purposes.

Federalism Implications

    This amendment will not have a substantial effect on the states, on 
the relationship between the national government and the states, or on 
the distribution of power and responsibilities among the various levels 
of government. Thus, in accordance with Executive Order 13132, 
preparation of a Federalism Assessment is not warranted.

Compliance With the 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).'' Sec. 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 
$120,700,000 or more in any 1 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 rule issued today does not include any mandates which will result 
in the expenditure, in the aggregate, of $120,700,000 or more in any 
one year, and thus preparation of a statement is not required.

List of Subjects in 49 CFR Part 214

    Bridges, Fall arrest equipment, Incorporation by reference, 
Occupational safety and health,

[[Page 7050]]

Personal protective equipment, Railroad employees, Railroad safety.

The Interim Final Rule

0
In consideration of the foregoing, FRA amends part 214 of chapter II, 
subtitle B of title 49, Code of Federal Regulations, as follows:

PART 214--[AMENDED]

0
1. The authority for part 214 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 21301, 21304; 28 U.S.C. 2461, 
note; and 49 CFR 1.49.

0
2. Section 214.107 is revised to read as follows:


Sec.  214.107  Working over or adjacent to water.

    (a) Bridge workers working over or adjacent to water with a depth 
of four feet or more, or where the danger of drowning exists, shall be 
provided and shall use life vests or buoyant work vests in compliance 
with U.S. Coast Guard requirements in 46 CFR 160.047, 160.052, and 
160.053. Life preservers in compliance with U.S. Coast Guard 
requirements in 46 CFR 160.055 shall also be within ready access. This 
section shall not apply to bridge workers using personal fall arrest 
systems or safety nets that comply with this subpart or to bridge 
workers who are working under the provisions of Sec.  214.103(b)(2), 
(c) or (d) of this subpart.
    (b) Prior to each use, all flotation devices shall be inspected for 
defects that reduce their strength or buoyancy by designated 
individuals trained by the railroad or railroad contractor. Defective 
units shall not be used.
    (c) Where life vests are required by paragraph (a) of this section, 
ring buoys with at least 90 feet of line shall be provided and readily 
available for emergency rescue operations. Distance between ring buoys 
shall not exceed 200 feet.
    (d) Where life vests are required, at least one lifesaving skiff, 
inflatable boat, or equivalent device shall be immediately available. 
If it is determined by a competent person that environmental 
conditions, including weather, water speed, and terrain, merit 
additional protection, the skiff or boat shall be manned.

    Issued in Washington, DC, on February 2, 2005.
Robert D. Jamison,
Acting Federal Railroad Administrator.
[FR Doc. 05-2560 Filed 2-9-05; 8:45 am]
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