[Federal Register Volume 74, Number 226 (Wednesday, November 25, 2009)]
[Proposed Rules]
[Pages 61633-61654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27974]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2008-0059, Notice No. 3]
RIN 2130-AB96


Railroad Workplace Safety; Adjacent-Controlled-Track On-Track 
Safety for Roadway Workers

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes to amend its regulations on railroad workplace 
safety to reduce further the risk of serious injury or death to roadway 
workers. In particular, FRA proposes to require that railroads adopt 
specified on-track safety procedures to protect certain roadway work 
groups from the movement of trains or other on-track equipment on 
``adjacent controlled track.'' FRA proposes to define ``adjacent 
controlled track'' to mean ``a controlled track whose track center is 
spaced 19 feet or less from the track center of the occupied track.'' 
These on-track safety procedures would be required for each adjacent 
controlled track when a roadway work group with at least one of the 
roadway workers on the ground is engaged in a common task with an on-
track roadway maintenance machine or coupled equipment on an occupied 
track. FRA also proposes to require that railroads, contractors to 
railroads, and roadway workers comply with these procedures. The NPRM 
issued as ``Notice No. 1'' under this same docket number and published 
July 17, 2008 (73 FR 41214), was withdrawn by ``Notice No. 2'' 
published August 13, 2008 (73 FR 47124).

DATES: (1) Written comments must be received no later than January 25, 
2010. Comments received after that date will be considered to the 
extent possible without incurring additional expense or delay.
    (2) FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to December 28, 2009, one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: You may submit comments on this NPRM, identified 
by Docket No. FRA-2008-0059, Notice No. 3, by any of the following 
methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, West Building, Ground Floor, M-33, Room W12-140, 1200 
New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery or Courier: Docket Management Facility, U.S. 
Department of Transportation, West Building, Ground Floor, M-33, Room 
W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. 
and 5 p.m. ET, Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: For detailed instructions on submitting comments, and 
additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this preamble. Note that all comments received will be posted without 
change to http://www.regulations.gov, including any personal 
information provided. Please see the ``Privacy Act'' subheading under 
the ``Regulatory Impact and Notices''

[[Page 61634]]

heading, below, in Section VIII.I. of this preamble.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov anytime, or to the 
Docket Management Facility, U.S. Department of Transportation, West 
Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, 
except Federal holidays. Follow the online instructions for accessing 
the docket.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track 
Division, Office of Safety Assurance and Compliance, FRA, 1200 New 
Jersey Avenue, SE., RRS-15, Mail Stop 25, Washington, DC 20590 
(telephone 202-493-6236); or Anna Winkle, Trial Attorney, Office of 
Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-12, Mail Stop 10, 
Washington, DC 20590 (telephone 202-493-6166 or 202-493-6052).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Impetus for Rulemaking
II. Overview of the Existing Roadway Worker Protection (RWP) Rule
    A. Applicability and Basic Definitions
    B. Authorized Methods of Establishing On-Track Safety
    C. Existing On-Track Safety Requirements for Roadway Work Groups 
With Respect to Adjacent Tracks
III. Notice of Safety Advisory 2004-01
IV. Recent Roadway Worker Accidents (1997-2008)
V. Joint Petition to FRA for an Emergency Order
VI. Current Rulemaking To Revise the RWP Rule
    A. Overview of the RSAC [Railroad Safety Advisory Committee]
    B. Proceedings in This Rulemaking to Date Generally
    C. Proceedings concerning On-Track Safety Procedures for 
Adjacent Tracks, Including Response to Comments on the July 17, 2008 
NPRM
    1. Joint Comments of BMWED and BRS
    2. Draft Comments of AAR
    3. Comments of Additional Interested Parties
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Trade Impact
    I. Privacy Act

I. Impetus for Rulemaking

    As will be detailed in this NPRM, the recent increase in roadway 
worker fatalities that have occurred on an adjacent track (i.e., under 
the existing rule, any track within 25 feet of the centerline of the 
track to which the roadway work group was assigned to perform one or 
more roadway worker duties) has caused considerable concern at FRA and 
throughout the industry, even prompting the filing of a joint petition 
for emergency order under 49 U.S.C. 20104 on April 11, 2008. See 49 CFR 
part 214, subpart C (``Roadway Worker Protection Rule'' or ``RWP 
Rule''). FRA had issued a notice of safety advisory to address this 
same issue in May of 2004; however, it appears that the salutary 
effects of the safety advisory, which produced a period of 16 months 
with no fatalities on an adjacent track, were not long-lasting, as four 
fatalities have since occurred on an adjacent track where a roadway 
work group, with at least one of the roadway workers on the ground, was 
engaged in a common task with an on-track roadway maintenance machine 
or coupled equipment on an occupied track. These proposed amendments to 
the Roadway Worker Protection Rule are based on the consensus language 
developed through the Roadway Worker Protection (RWP) Working Group of 
FRA's Railroad Safety Advisory Committee (RSAC), which is comprised of 
various representatives of the groups that are affected by this rule 
(including railroad management, railroad labor organizations, and 
contractors). Because incidents involving adjacent controlled tracks 
appear to present clear evidence of significant risk that is not 
effectively addressed by the current regulation, FRA has concluded that 
moving forward with this proposal in advance of the other proposals 
contained in the RSAC consensus \1\ is necessary and appropriate.
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    \1\ While the consensus language relating to adjacent track 
issues that was developed through the RSAC was originally intended 
to be published as part of a larger NPRM, FRA has decided to propose 
these adjacent-track-related provisions in this separate NPRM so 
that an appropriate provision will be in effect in a more timely 
fashion than if the provision were one of many in the larger 
rulemaking that would need to undergo internal review and approval 
and public notice and comment. The remaining provisions not related 
to adjacent track will be proposed in a separate NPRM at a later 
date, as part of the larger RWP rulemaking.
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II. Overview of the Existing RWP Rule

A. Applicability and Basic Definitions

    The RWP Rule requires each railroad that operates rolling equipment 
on track that is part of the general railroad system of transportation 
to ``adopt and implement a program that will afford on-track safety to 
all roadway workers whose duties are performed on that railroad.'' See 
49 CFR 214.3, 214.303(a).\2\ ``On-track safety'' is defined as ``a 
state of freedom from the danger of being struck by a moving railroad 
train or other railroad equipment, provided by operating and safety 
rules that govern track occupancy by personnel, trains and on-track 
equipment.'' See Sec.  214.7. The roadway workers that must be afforded 
on-track safety are any employees of a railroad, or of a contractor to 
a railroad, whose duties include ``inspection, construction, 
maintenance or repair of railroad track, bridges, roadway, signal and 
communication systems, electric traction systems, roadway facilities or 
roadway maintenance machinery on or near track or with the potential of 
fouling a track, and flagmen and watchmen/lookouts . * * * '' See Sec.  
214.7, ``Roadway worker.''
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    \2\ All references in this preamble to a section or other 
provision of a regulation are to a section, part or, other provision 
in title 49, Code of Federal Regulations unless otherwise specified.
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B. Authorized Methods of Establishing On-Track Safety

    Several methods are authorized to be used to provide on-track 
safety for roadway workers, and many of those methods involve 
establishing ``working limits,'' which is defined in part as ``a 
segment of track with definite boundaries established in accordance 
with [part 214] upon which trains and engines may move only as 
authorized by the roadway worker having control over that defined 
segment of track.'' See Sec. Sec.  214.7 and 214.319. Working limits 
may be established on controlled track (i.e., ``track upon which the 
railroad's operating rules require that all movements of trains must be 
authorized by a train dispatcher or a control operator'') through 
exclusive track occupancy (Sec.  214.321), foul time (Sec.  214.323), 
or train coordination (Sec.  214.325). See Sec. Sec.  214.7 and 
214.319. Regardless of which method is chosen, the working limits are 
only permitted to be under the control of a qualified roadway worker in 
charge, and all affected roadway workers must be notified and either 
clear of the track or provided on-track safety through train approach 
warning (in accordance with Sec.  214.329) before the working limits 
are released to permit the operation of trains or other on-track 
equipment through the working limits. See id.
    Train approach warning is another common method of establishing on-

[[Page 61635]]

track safety in which a trained and qualified watchman/lookout provides 
warning to roadway worker(s) of the approach of a train or on-track 
equipment in sufficient time to enable each roadway worker to move to 
and occupy a previously arranged place of safety not less than 15 
seconds before a train moving at the maximum speed authorized on that 
track would arrive at the location of the roadway worker. See 
Sec. Sec.  214.329 and 214.7 ``Watchman/lookout.'' Train approach 
warning is sometimes used as a temporary form of on-track safety when a 
roadway worker in charge needs to nullify the on-track safety 
previously established by working limits in order to permit a train or 
piece of on-track equipment to enter the roadway work group's working 
limits. Train approach warning permits the roadway workers to continue 
working for longer (than if working limits were the only form of on-
track safety in effect) if the working limits span several miles and 
the train or equipment will not be passing by the work area for some 
time due to a speed restriction, the distance away, or the train or 
equipment halting its movement. It should be noted that switching 
temporarily to ``train approach warning'' is permissible only if the 
change was previously discussed in detail with the roadway work group 
either in the on-track safety job briefing prior to beginning work or 
in an updated on-track safety job briefing pursuant to Sec.  
214.315(d). See Sec.  214.315.

C. Existing On-Track Safety Requirements for Roadway Work Groups With 
Respect to Adjacent Tracks

    Section 214.335(c) of the RWP Rule currently requires that roadway 
work groups engaged in ``large-scale maintenance or construction'' be 
provided with on-track safety in the form of ``train approach warning'' 
for train or equipment movements on adjacent tracks if the adjacent 
tracks are not already included within the working limits. Under the 
current definition of ``adjacent tracks,'' on-track safety as discussed 
above is required for any tracks with track centers spaced less than 25 
feet apart from the track center of the track to which a roadway work 
group is assigned to perform large-scale maintenance or construction. 
See Sec. Sec.  214.7, 214.335(c). The track to which the roadway work 
group is assigned to perform the large-scale maintenance or 
construction is commonly referred to as the ``occupied track.'' Thus, 
in triple-main track territory, if a roadway work group is occupying 
the middle track (e.g., Main Track No. 2) in order to perform large-
scale maintenance or construction, and the track centers of the tracks 
on either side of the occupied track are within 25 feet of the track 
center of the occupied track, then on-track safety is required to be 
established on both adjacent tracks (e.g., Main Track Nos. 1 and 3). In 
some yards or territories, where track centers may be spaced only 12 
feet apart, an occupied track (e.g., Yard Track No. 3) may have up to 
four adjacent tracks (e.g., Yard Track Nos. 1, 2, 4, and 5). In such 
cases, the current rule requires on-track safety to be established on 
all four adjacent tracks, in addition, of course, to the on-track 
safety required for the occupied track itself. See Sec. Sec.  
214.335(c) and 214.337(a).
    Although the term ``large-scale maintenance or construction'' is 
not specifically defined in the regulation, FRA noted in the preamble 
to the 1996 final rule establishing the RWP Rule that the principle 
behind the reference to large-scale maintenance or construction ``is 
the potential for distraction, or the possibility that a roadway worker 
or roadway maintenance machine might foul the adjacent track and be 
struck by an approaching or passing train,'' and further stated that 
``conditions in which the risk of distraction is significant'' require 
measures to provide on-track safety on adjacent tracks.'' See 61 FR 
65959, 65971 (December 16, 1996). To further clarify what was meant by 
the term ``large-scale maintenance or construction,'' FRA adopted the 
recommendation of the Roadway Worker Safety Advisory Committee, which 
described large-scale track maintenance and/or renovations, such as but 
not limited to, ``rail and tie gangs, production in-track welding, 
ballast distribution, and undercutting.'' See id. Under such guidance, 
many railroads were not providing on-track safety on adjacent tracks 
for surfacing operations, small tie renewal operations, or similar 
maintenance operations that, while smaller in scale, still included one 
or more on-track roadway maintenance machines or coupled equipment. 
Fatalities occurred on the adjacent track during such operations when 
on-track safety was not established on the adjacent track or had been 
temporarily or permanently nullified or suspended to permit the passage 
of a train or other on-track equipment.

III. Notice of Safety Advisory 2004-01

    After the occurrence of five roadway worker fatalities in one 
calendar year (2003), including one on an adjacent track, FRA responded 
on April 27, 2004, by issuing Notice of Safety Advisory 2004-01, which 
was later published in the Federal Register on May 3, 2004. See 69 FR 
24220. FRA issued this safety advisory to recommend certain safety 
practices, to review existing requirements for the protection of 
roadway workers from traffic on adjacent tracks, and to heighten 
awareness to prevent roadway workers from inadvertently fouling a track 
when on-track safety is not provided. See id.
    The safety advisory explained that the requirements of the RWP 
Rule, including the requirement to provide adjacent track on-track 
safety for large-scale maintenance or construction in Sec.  214.335(c), 
are only minimum standards. The advisory emphasized that railroads and 
railroad contractors are free to prescribe additional or more-stringent 
standards consistent with the rule. See id. at 24222 and Sec.  
214.301(b).
    FRA recommended that railroads and contractors to railroads develop 
and implement basic risk assessment procedures for use by roadway 
workers to determine the likelihood that a roadway worker or equipment 
would foul an adjacent track prior to initiating work activities, 
regardless of whether those activities were ``large-scale'' or ``small-
scale.'' The advisory provided examples of relevant factors to consider 
in making such an assessment. These factors included whether the work 
could be conducted by individuals positioned between the rails of a 
track on which on-track safety has been established, as opposed to 
being on the field side of such a track toward an adjacent track; 
whether there was a structure between the tracks to prevent intrusion 
(such as a fence between the tracks at a passenger train station and 
the tall beam of a through-plate girder bridge); the track-center 
distance, to ensure that the adjacent track would not be fouled if a 
worker were to inadvertently trip and fall; the nature of the work 
(inspection or repair); the sight distances; and the speed of trains on 
the adjacent track. See 69 FR 24222. FRA further noted that, upon 
completion of an on-site risk assessment, the on-track safety briefing 
required by Sec.  214.315(a) would be the ideal instrument to implement 
preventive measures concerning adjacent tracks. See id.
    In addition to the above recommendation concerning basic risk 
assessment, FRA recommended that railroads and contractors to railroads 
consider taking the following actions:
     Use of working limits for activities where equipment could 
foul adjacent track (whether large-scale or small-scale activities);
     Use rotation stops to mitigate the dangers associated with 
on-track

[[Page 61636]]

equipment and trains passing on adjacent tracks;
     Review procedures for directing trains through adjacent 
track working limits, and enhance such procedures when necessary;
     Install adjacent track warning signs/devices in the 
operating cab of on-track machines to remind roadway maintenance 
machine operators to not inadvertently depart the equipment onto a 
track where there may be trains and other on-track equipment passing;
     Provide additional training and monitoring to employees, 
emphasizing the need to cross tracks in a safe manner (i.e., single 
file and after looking in both directions);
     Reinforce to individual roadway workers that it is 
critical not to foul a track except in the performance of duty and only 
when on-track safety has been established. This training could be 
accomplished through training sessions, as well as daily job briefings; 
and
     Institute peer-intervention measures by which workers are 
encouraged to intervene when observing another roadway worker engaging 
in potentially non-compliant and unsafe activity.

See id.

IV. Recent Roadway Worker Accidents (1997-2008)

    In the twelve years since the RWP Rule went into effect on January 
15, 1997, there have been nine roadway worker fatalities on an adjacent 
track. Seven of those fatalities have occurred on a controlled track 
that was adjacent to the track on which a roadway work group, with at 
least one of the roadway workers on the ground, was engaged in a common 
task with an on-track roadway maintenance machine or coupled equipment. 
FRA notes that there has been only one adjacent-track fatality where a 
roadway work group had been engaged in a common task with a lone hi-
rail vehicle, defined in Sec.  214.7 as ``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.'' \3\ In addition, there 
have been no adjacent-track fatalities where a roadway work group had 
been engaged in a common task with a catenary maintenance tower car on 
the occupied track. This is likely because the duties normally 
performed by an employee operating a hi-rail or a catenary maintenance 
tower car tend to be less distracting to on-ground roadway workers and 
produce less dust and noise than a typical on-track roadway maintenance 
machine. Given the above, FRA proposes that adjacent-track on-track 
safety not be required for roadway work groups engaged in a common task 
with a hi-rail or a catenary maintenance tower car, as discussed in the 
section-by-section analysis of paragraphs (b)(2) and (b)(3), 
respectively, in new proposed Sec.  214.336.
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    \3\ In that case, the roadway workers were under the impression 
that adjacent-track on-track safety was in effect, but it was not, 
due to a miscommunication.
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    Of the seven fatalities that occurred under the circumstances 
described above and which this rule proposes to address, three occurred 
during the period after the effective date of the rule and before the 
publication of the safety advisory on May 3, 2004, and four have 
occurred since that period. In the four-year period prior to May of 
2004 (May 1, 2000--April 30, 2004), there has been one adjacent-track 
fatality known to have occurred under such circumstances, for a rate of 
.25 per year. In the four-year period since (May 1, 2004--April 30, 
2008), there have been four adjacent-track fatalities, for a rate of 
one per year, which is four times the rate of the previous four-year 
period. While FRA recognizes that even one death can make rates change 
dramatically when the total number of deaths is small, the increase in 
the rate of these deaths despite the safety advisory leads FRA to 
conclude that regulatory action is needed to avert an escalating number 
of deaths. Moreover, given the extensive participation in developing 
these consensus regulatory provisions by representatives of all of the 
key interests involved in this issue, it is contrary to the public 
interest to wait for all of the other issues in the larger RWP 
rulemaking to be resolved or to engage in lengthy periods for notice 
and public comment before acting to prevent more deaths.
    The following is a brief summary of the results of FRA's 
investigations of the four most recent incidents that resulted in these 
unfortunate fatalities:
     October 5, 2005: A roadway surfacing gang tamper operator, 
with 28 years of service, was walking up to the front of the tamper to 
put away the light buggies as his surfacing gang, having just completed 
its work, was getting ready to travel to clear the number two main 
track. The operator was walking east on the side of the tamper between 
the two main tracks when he was struck by a westbound train on the 
adjacent track. The track centers were spaced approximately 13 feet 
apart, and the train was traveling at an estimated speed of 40 miles 
per hour (mph).
     March 12, 2007: A surfacing gang was occupying the number 
one main track in a double-main territory. The surfacing gang foreman 
(the roadway worker in charge), who earlier had notified the other 
members of the gang of pending movement on the adjacent track, was 
standing in the gage of the same adjacent track when he was struck by a 
train. It remains unclear why he was fouling the adjacent track at the 
time of the incident. The track centers were spaced approximately 13 
feet, 6 inches apart, and the maximum authorized speed on the adjacent 
track was 50 mph. The foreman was the only roadway worker on the ground 
at the time of the incident.
     February 10, 2008: A train struck a roadway worker inside 
an interlocking on a triple-main track territory. The worker was part 
of a gang that consisted of approximately 10 workers that were engaged 
in the repair of a crossover on the middle main track with a tamper. 
Foul time was being used as adjacent-track on-track protection, but 
this protection was removed by the roadway worker in charge, who gave 
permission to the dispatcher to permit a train to operate on the 
adjacent track through the roadway work group working limits. As the 
train entered the interlocking on a limited clear signal indication for 
a crossover move past the work area, one of the roadway workers 
attempted to cross the track in front of the train and was struck. The 
track centers were spaced approximately 13 feet apart, and the maximum 
authorized speed for the train on the adjacent track was 45 mph.
     March 27, 2008: A surfacing gang was working on double-
main track territory. The surfacing gang foreman was standing in the 
foul of the adjacent track while his surfacing crew worked on the 
number two main track (the occupied track). A train operating on the 
adjacent track struck the foreman. No on-track safety was in effect on 
the adjacent track involved at the time of the incident. The track 
centers were spaced approximately 14 feet, 7 inches apart, and the 
maximum authorized speed on the adjacent track was 70 mph. The foreman 
was the only roadway worker on the ground at the time of the incident.
    While the above discussion focuses on those fatalities that have 
occurred on an adjacent track where a roadway work group, with at least 
one of the roadway workers on the ground, was engaged in a common task 
with an on-track roadway maintenance machine or coupled equipment on an 
occupied track, it is important to discuss some of the common 
circumstances in all nine of the fatalities that have occurred on an

[[Page 61637]]

adjacent track since the rule went into effect, as these circumstances 
were considered by FRA in its decision to issue this NPRM. The first 
common circumstance is the type of track. All nine of the fatalities 
occurred on ``controlled'' track, rather than ``non-controlled'' track. 
This was taken into consideration in writing FRA's proposed definition 
of ``adjacent controlled track,'' which would be included in proposed 
new Sec.  214.336(a)(3) and would be limited to controlled tracks whose 
track centers are spaced 19 feet or less from the track center of the 
occupied track. The term would only be applicable to Sec.  214.336 and 
would not replace the broader term ``adjacent tracks,'' which is 
defined in Sec.  214.7.
    Second, all nine of the fatalities occurred on an adjacent track 
that was quite closely-spaced to the track that the roadway work group 
was occupying. Six of the adjacent tracks had track centers that were 
spaced approximately 14 feet or less from the respective track centers 
of the tracks that the roadway work groups were occupying, and all nine 
of the adjacent tracks were spaced 15 feet or less from the track 
centers of the respective occupied tracks. This common circumstance was 
also taken into consideration in FRA's proposed definition of 
``adjacent controlled track,'' which would have a narrower 
applicability for purposes of proposed Sec.  214.336 than the term 
``adjacent tracks,'' because it would not include tracks with track 
centers that were spaced more than 19 feet (but less than 25 feet) away 
from the track center of the occupied track.
    The third common circumstance of the nine fatalities on adjacent 
track is the time of year. Four of the fatalities occurred during the 
first quarter (January-March), none of the fatalities occurred in the 
second and third quarters of the year (April-June and July-September, 
respectively), and the other five fatalities occurred during the fourth 
quarter (October-December). As noted earlier in Section I., above, 
because incidents involving adjacent controlled tracks appear to 
present clear evidence of significant risk that is not effectively 
addressed by the current regulation, FRA has concluded that moving 
forward with this proposal in advance of the other proposals contained 
in the RSAC consensus is necessary and appropriate in order to reduce 
the risk of additional fatalities on adjacent track that are likely to 
occur late this year or early next year in the absence of further 
regulatory action.

V. Joint Petition to FRA for an Emergency Order

    On April 11, 2008, the Brotherhood of Maintenance of Way Employes 
Division (BMWED) and the Brotherhood of Railroad Signalmen (BRS) filed 
a joint petition requesting that FRA issue an emergency order under 49 
U.S.C. 20104(a) requiring adjacent-track protection for roadway work 
groups. The petition noted that similar requests, which were filed on 
October 7, 2005, November 7, 2003, and December 21, 1999, were denied 
by FRA. The petitioners expressed their belief that, under the existing 
provisions of the rule, roadway workers will continue to suffer 
preventable serious injuries and death. The petitioners asserted that 
FRA should require railroads and their contractors to establish on-
track safety on adjacent tracks (``adjacent-track on-track safety'') 
for a wider range of work activities. In FRA's January 5, 2006 denial 
of the October 2005 petition, FRA noted that the RSAC working group 
tasked to review and revise the RWP Rule (``RWP Working Group'') was 
``committed to presenting comprehensive draft language * * * that would 
more closely tailor the solution to the problem.'' And while the RWP 
Working Group did in fact draft this language, and both the Working 
Group and the full RSAC were able to reach consensus on such language, 
BMWED and BRS were concerned that the language, which has not been 
published as an NPRM, would not become a final rule for a considerable 
period of time, leaving the possibility for further preventable 
fatalities. BMWED and BRS urged FRA to issue an emergency order that 
would adopt the adjacent-track consensus language of the RWP RSAC.
    On April 18, 2008, the American Train Dispatchers Association 
(ATDA) filed a letter in support of the BMWED and BRS joint petition. 
In the letter, ATDA agreed that preventable injuries and deaths 
continue to occur because of a lack of positive regulation mandating 
adjacent-track on-track safety and urged FRA to issue an emergency 
order based upon the RSAC-approved and consensus-based replacement 
language for Sec.  214.235(c), as indicated in the joint petition.
    As an emergency order does not require prior notice to the affected 
party or an opportunity to be heard prior to issuance of the order, 
Congress declared that such an order may be invoked only where an 
unsafe condition or practice ``causes an emergency situation involving 
a hazard of death or personal injury.'' 49 U.S.C. 20104. By letter 
dated June 4, 2008, FRA denied the joint petition for emergency order, 
noting that the increased rate of adjacent-track-related fatalities 
cited in the joint petition makes a strong case for regulatory action, 
but does not constitute an emergency situation ``that has developed 
suddenly and unexpectedly in which the danger is immediate.'' To 
address this serious safety concern, FRA decided to issue a separate 
NPRM with an abbreviated comment period, as further discussed in 
Section VI.C., below.

VI. Current Rulemaking To Revise the RWP Rule

A. Overview of the RSAC

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to FRA's Administrator on 
rulemakings and other safety program issues. The Committee includes 
representation from all of the agency's major stakeholder groups, 
including railroads, labor organizations, suppliers and manufacturers, 
and other interested parties. A list of member groups follows:

 American Association of Private Railroad Car Owners (AARPCO);
 American Association of State Highway and Transportation 
Officials (AASHTO);
 American Chemistry Council;
 American Petroleum Institute;
 American Public Transportation Association (APTA);
 American Short Line and Regional Railroad Association 
(ASLRRA);
 ATDA;
 Association of American Railroads (AAR);
 Association of Railway Museums;
 Association of State Rail Safety Managers (ASRSM);
 Brotherhood of Locomotive Engineers and Trainmen (BLET);
 BMWED;
 BRS;
 Chlorine Institute;
 Federal Transit Administration (FTA)*;
 Fertilizer Institute;
 High Speed Ground Transportation Association (HSGTA);
 Institute of Makers of Explosives;
 International Association of Machinists and Aerospace Workers;
 International Brotherhood of Electrical Workers (IBEW);
 Labor Council for Latin American Advancement*;
 League of Railway Industry Women*;
 National Association of Railroad Passengers (NARP);
 National Association of Railway Business Women*;

[[Page 61638]]

 National Conference of Firemen & Oilers;
 National Railroad Construction and Maintenance Association 
(NRC);
 National Railroad Passenger Corporation (Amtrak);
 National Transportation Safety Board (NTSB)*;
 Railway Supply Institute (RSI);
 Safe Travel America (STA);
 Secretaria de Comunicaciones y Transporte*;
 Sheet Metal Workers International Association (SMWIA);
 Tourist Railway Association, Inc.;
 Transport Canada*;
 Transport Workers Union of America (TWU);
 Transportation Communications International Union/BRC (TCIU/
BRC);
 Transportation Security Administration (TSA)*; and
 United Transportation Union (UTU).

* Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The individual task force then provides that information to 
the working group for consideration. If a working group comes to 
unanimous consensus on recommendations for action, the package is 
presented to the full RSAC for a vote. If the proposal is accepted by a 
simple majority of RSAC, the proposal is formally recommended to FRA. 
FRA then determines what action to take on the recommendation. Because 
FRA staff play an active role at the working group level in discussing 
the issues and options and in drafting the language of the consensus 
proposal, FRA is often favorably inclined toward the RSAC 
recommendation. However, FRA is in no way bound to follow the 
recommendation, and the agency exercises its independent judgment on 
whether the recommended rule achieves the agency's regulatory goal, is 
soundly supported, and is in accordance with policy and legal 
requirements. Often, FRA varies in some respects from the RSAC 
recommendation in developing the actual regulatory proposal or final 
rule. Any such variations would be noted and explained in the 
rulemaking document issued by FRA. If the working group or RSAC is 
unable to reach consensus on a recommendation for action, FRA moves 
ahead to resolve the issue through traditional rulemaking proceedings.

B. Proceedings in This Rulemaking to Date Generally

    On January 26, 2005, the RSAC formed the RWP Working Group 
(``Working Group'') to consider specific actions to advance the on-
track safety of employees of covered railroads and their contractors 
engaged in maintenance-of-way activities throughout the general system 
of railroad transportation, including clarification of existing 
requirements. The assigned task was to review the existing rule, 
technical bulletins, and a safety advisory dealing with on-track 
safety. The Working Group was to consider implications and, as 
appropriate, consider enhancements to the existing rule. The Working 
Group would report to the RSAC any specific actions identified as 
appropriate, and would report planned activity to the full Committee at 
each scheduled Committee meeting, including milestones for completion 
of projects and progress toward completion.
    The Working Group is comprised of members from the following 
organizations:

 Amtrak;
 APTA;
 ASLRRA;
 ATDA;
 AAR, including members from BNSF Railway Company (BNSF), 
Canadian National Railway Company (CN), Canadian Pacific Railway, 
Limited (CP), Consolidated Rail Corporation (Conrail), CSX 
Transportation, Inc. (CSXT), Kansas City Southern (KCS), Norfolk 
Southern Corporation (NS), and Union Pacific Railroad Company (UP);
 Belt Railroad of Chicago;
 BLET;
 BMWED;
 BRS;
 Federal Railroad Administration (FRA);
 Indiana Harbor Belt Railroad (IHB);
 Long Island Rail Road (LIRR);
 Metro-North Commuter Railroad Company (Metro-North);
 Montana Rail Link;
 NRC;
 Northeast Illinois Regional Commuter Railroad Corporation 
(Metra);
 RailAmerica, Inc.;
 Southeastern Pennsylvania Transportation Authority (SEPTA);
 UTU; and
 Western New York and Pennsylvania Railroad (WNY&P).

    The Working Group held 12 multi-day meetings. The group worked 
diligently and was able to reach consensus on 32 separate items.

C. Proceedings Concerning On-Track Safety Procedures for Adjacent 
Tracks, Including Response to Comments on the July 17, 2008 NPRM

    One of the items on which the Working Group was able to reach 
consensus dealt specifically with the adjacent-track on-track safety 
issue in Sec.  214.335 On-track safety procedures for roadway work 
groups. The consensus language developed by the Working Group for this 
topic, which was approved by the full RSAC and formally recommended to 
FRA for paragraphs (c), (d), and (e), is as follows:
    For paragraph (c)--``On-track safety is required for adjacent 
controlled track within 19 feet of the centerline of the occupied track 
when roadway work group(s) consisting of roadway workers on the ground 
and on-track self-propelled or coupled equipment are engaged in a 
common task on an occupied track.
     ``Except as provided by paragraph (c)(3) of this section, 
when trains are cleared through working limits on an adjacent 
controlled track, or when watchman/lookout warning in accordance with 
Sec.  214.329 is the form of adjacent on-track safety, roadway workers 
shall occupy a predetermined place of safety and all on-ground work and 
equipment movement activity within the fouling space of the occupied 
track shall cease upon notification of pending adjacent track movement 
(working limits) or upon receiving the watchman/lookout warning.
     ``When single or multiple movements are cleared through 
adjacent controlled track working limits, on-ground work and equipment 
movement on the occupied track may resume only after all such movements 
on adjacent track have passed each component of the Roadway Work 
Group(s). If the train stops before passing all roadway workers, the 
employee in charge shall communicate with the engineer prior to 
allowing the work to resume.
     ``When single or multiple movements are cleared through 
adjacent controlled track working limits at a speed no greater than 25 
mph, work performed exclusively between the rails of the occupied 
track, or to the field side of the occupied track with no adjacent 
track, may continue upon notification of each roadway worker of 
movement on adjacent track. On-ground work shall not be performed 
within 25 feet to the front or 25 feet to the rear of roadway 
maintenance machine(s) on the

[[Page 61639]]

occupied track during such adjacent track movement.''
    For paragraph (d), the Working Group recommended ``Equipment may 
not foul an adjacent controlled track unless protected by working 
limits and there are no movements authorized through the working limits 
by the roadway worker in charge.''
    And for paragraph (e), the Working Group recommended ``The 
mandatory provisions for adjacent controlled track protection under 
this subpart are not applicable to work activities involving--
     ``A hi-rail vehicle as defined in Sec.  214.7, provided 
such hi-rail vehicle is not coupled to railroad cars. Where multiple 
hi-rail vehicles are engaged in a common task, the on-track safety 
briefing shall include discussion of the nature of the work to be 
performed to determine if adjacent controlled track protection is 
necessary. Nothing in this subpart prohibits the roadway worker in 
charge of the hi-rail vehicle from establishing adjacent controlled 
track protection, as he/she deems necessary.
     ``On-ground roadway workers exclusively performing work on 
the field side of the occupied track.
     ``Catenary maintenance tower cars with roadway workers 
positioned on the ground within the gage of the occupied track for the 
sole purpose of applying or removing grounds. Nothing in this subpart 
prohibits the roadway worker in charge of the catenary maintenance 
tower car from establishing adjacent track protection, as he/she deems 
necessary.''
    Upon reviewing the joint petition of the BRS and BMWED for an 
emergency order, the consensus language of the Working Group quoted 
above, and the relevant accident data concerning roadway workers 
fouling adjacent tracks, FRA decided to issue a separate NPRM \4\ to 
lower the safety risk associated with roadway workers fouling adjacent 
tracks. Although FRA's safety advisory may have had an initial effect 
and have raised awareness enough to help keep the number of all 
categories of roadway worker fatalities in 2004 and through almost six 
months in 2005 at zero, the effect was not sustained enough to combat 
the rise of roadway worker fatality incidents since late June of 2005, 
when the first roadway worker fatality occurred after the issuance of 
the safety advisory, or since October of 2005, when the first adjacent 
track roadway worker fatality occurred.
---------------------------------------------------------------------------

    \4\ As noted in Section I. of this document, the provisions 
related to adjacent-controlled-track on-track safety were originally 
intended to be published as part of a larger NPRM concerning part 
214, but have been proposed here as a separate NPRM to expedite the 
effective date of such provisions.
---------------------------------------------------------------------------

    In light of recent roadway worker fatality trends, FRA determined 
that the agency must propose a more prescriptive approach to prevent 
further fatalities. The need to mandate adjacent-track on-track safety 
was recognized by FRA, members of the Working Group, and members of the 
full RSAC. The consensus language developed by the Working Group and 
recommended by the full RSAC is expected to reduce the risk of roadway 
worker fatalities due to fouling an adjacent track while working in 
conjunction with on-track equipment on an occupied track. As part of 
the process in drafting the NPRM in the larger RWP rulemaking, FRA 
circulated the consensus rule text concerning adjacent track and other 
items for errata review. Both AAR and BMWED submitted comments on this 
provision. To address these issues, and other potential ambiguities 
discovered upon a closer review of the rule text, FRA reorganized and 
modified the consensus text in issuing an NPRM.
    FRA published an NPRM addressing adjacent-track on-track safety on 
July 17, 2008 (73 FR 41214), but formally withdrew the notice on August 
13, 2008 (73 FR 47124). The withdrawal stated, in part--``[i]n crafting 
the NPRM, FRA presented the RSAC consensus language in the preamble 
verbatim and transparently explained its rationale for all changes it 
made to the consensus language. As this was an NPRM, FRA sought comment 
on the entire proposal, including those portions that FRA sought to 
clarify.
    ``FRA recognizes that inadvertent errors do sometimes occur in 
formulating a proposal and expects that interested parties would 
provide comments to both FRA and all other interested parties through 
the established comment process detailed in the NPRM. Given the alleged 
discrepancies between the consensus language and the proposed rule, the 
need to clarify the essential issues and move toward resolution of the 
safety concern at hand, and the ex parte communications regarding this 
proposed rule, FRA has decided to withdraw this rulemaking and will 
take such further regulatory steps as safety requires.''

Id. Due to the inherent dangers of roadway workers working in multiple-
track territories among machines, FRA has decided to revisit the issues 
and language of the withdrawn NPRM in light of the comments received, 
formal and informal, and issue this revised NPRM. In accordance with 
the Department of Transportation's Policy (Order No. 2100.2 (1970)), 
all communications (including emails) between FRA employees and other 
parties since the publication of the July 17, 2008 NPRM and prior to 
its withdrawal were reduced to writing and placed in the public docket. 
While some comments were marked ``draft'' or received after the 
withdrawal of the NPRM, FRA has decided to post them to the docket, 
since they were still taken into consideration in drafting this NPRM. A 
summary of the comments received follows, below.
1. Joint Comments of BMWED and BRS
    BMWED and BRS filed a joint request to extend the comment period to 
60 days on July 28, 2008, as well as preliminary joint comments 
detailing their concerns with the substance of FRA's initial NPRM on 
August 10, 2008 (just after FRA issued the withdrawal notice, but prior 
to the publication of the notice in the Federal Register). FRA has 
considered all of the comments submitted by BMWED and BRS, formal and 
informal, and recognizes areas where the initial proposed rule text 
could be adjusted to address their concerns with FRA's initial 
proposal, while still addressing FRA's concerns with the consensus 
language that was recommended to FRA by RSAC. While BMWED also 
commented on the rule through ex parte communications, as posted to the 
docket, FRA believes that the joint initial comments address these same 
concerns, as well as those summarized in the joint request to extend 
the comment period, in one document; thus, FRA will be referencing the 
comments made in the preliminary joint comments, rather than those made 
through ex parte communications and the joint request to extend the 
comment period.
    The first issue raised in the joint comments was the proposed 
removal of the definition of the term ``Adjacent tracks'' in Sec.  
214.7. BMWED and BRS stated that the removal of the definition in Sec.  
214.7 would remove tens of thousands of miles of non-controlled track 
from the scope of the regulation. FRA disagrees with this 
interpretation of the NPRM, since the proposed removal of the 
definition is not what would have removed non-controlled track from the 
scope of adjacent-track on-track safety; rather, it was the substantive 
provision itself that the RSAC recommended and that formed the basis 
for FRA's proposal that would have removed it. Since the term was no 
longer being used anywhere else in part 214, it would have caused 
confusion to have a definition that included non-

[[Page 61640]]

controlled tracks within 25 feet of the occupied track and controlled 
tracks greater than 19 feet, but less than 25 feet from the occupied 
track, without any relevance to a substantive provision. BMWED and BRS 
believe that leaving the definition in would give the roadway worker in 
charge the necessary discretion to establish on-track safety on an 
adjacent track, even when on-track safety is not mandated by FRA. FRA 
believes that this concern may be addressed by adjusting the proposed 
section concerning the on-track safety job briefing (Sec.  214.315) to 
use the term ``adjacent tracks'' \5\ and adding language to that 
section regarding the roadway worker in charge, and by modifying the 
language in Sec.  214.336 to make it clear that the new requirement 
does not prohibit the roadway worker in charge from establishing 
additional on-track safety on one or more adjacent tracks as he or she 
deems necessary.
---------------------------------------------------------------------------

    \5\ The consensus language stated ``information about any tracks 
adjacent to the track to be occupied.'' One could interpret this 
language to have included a discussion of adjacent tracks without 
regard to a set distance, since the term limiting the distance to 25 
feet was not used. The term ``adjacent tracks'' would thus limit the 
discussion to those within 25 feet.
---------------------------------------------------------------------------

    The joint comments also describe a concern with the withdrawn 
NPRM's proposed language in Sec.  214.336(a)(1)(ii) that would have 
permitted a component of a roadway work group to resume all on-ground 
work and equipment movement after the ``head-end'' of a movement passed 
by the component's location when trains are cleared through working 
limits at speeds greater than 25 mph. The joint comments insist that 
the RSAC Working Group's intent was for work to stop for the entire 
movement, not just the head-end.
    While drafting this section in the withdrawn NPRM, FRA made a good 
faith determination of the meaning of the consensus language and could 
not distinguish whether the Working Group meant ``head-end'' or entire 
``movement.'' (This determination is reflected in the preamble, and 
comments were requested.) Based on AAR's errata review comments and 
FRA's review of the January 10-11, 2006 Working Group meeting minutes, 
it appeared possible that an error was made, with respect to the 
``head-end only'' requirement, by the Working Group in creating the 
final draft of the consensus language that was eventually presented to 
the full RSAC for approval. The draft being discussed at the January 
meeting allowed work to commence at the head-end during movement at 30 
mph, but required that the entire movement pass before allowing work to 
commence at speeds greater than 30 mph. The Working Group reached 
consensus on the ``concepts of the proposal'' for this item at its 
February 1-2, 2006 meeting.\6\ While it was clear from the Working 
Group meeting minutes that the speed threshold of 30 mph was being 
negotiated (railroad management proposed that it be raised to 40 mph, 
while railroad labor proposed that it be lowered to 10 mph), the 
meeting minutes did not clearly capture the discussion that led to the 
use of the term ``movement,'' rather than ``head-end'' or ``entire 
movement.''
---------------------------------------------------------------------------

    \6\ On page 13 of the meeting minutes, the facilitator 
``reminded the group that the vote would be on the concepts of the 
proposal and the language may change and be simplified when 
finalized.'' A representative of AAR then asked if everyone agreed 
on ``the principles of the write-up.'' At the March 15-16, 2006 
meeting, the ``RWP Working Group Table'' included the language that 
was eventually approved by the full RSAC (except that ``employee in 
charge'' was changed to ``roadway worker in charge'' in paragraph 
(d)) and indicated ``Consensus 02/02/06. Draft language from 02/02/
06 revised by consolidating the exceptions.''
---------------------------------------------------------------------------

    Upon reviewing other documents from that meeting, FRA has 
determined that railroad management's proposal that included the 40-mph 
threshold also appears to have conceded that the entire movement must 
pass before permitting work to resume, regardless of speed. While it is 
possible that the concession of the entire movement passing was 
conditioned upon railroad labor accepting railroad management's 
proposal as a whole (including the 40-mph threshold), FRA did not 
receive any further comments from AAR or any of its members on this 
issue, despite the request for comments on this issue in the July 17, 
2008 NPRM. Since the consensus language eventually approved by the full 
RSAC most closely resembled that which railroad labor proposed to the 
Working Group, FRA has decided to edit the language in this NPRM to 
require that all work not subject to an exception be permitted to 
resume only after the entire movement (i.e., the trailing-end of the 
movement) has passed by the location of the roadway work group 
component. This requirement would apply regardless of the speed of the 
movement.
    Regarding the limited work activities that would be permitted to 
continue under FRA's initial proposal when trains are passing on an 
adjacent controlled track at speeds of 25 mph or less, BMWED and BRS 
note that the language proposed by FRA in paragraph (a)(2) differed 
from the consensus language in paragraph (c)(3) (indicating that work 
conducted ``exclusively between the rails of the occupied track, or to 
the field side of the occupied track with no adjacent track'' would be 
permitted to continue, provided that the work was not conducted within 
25 feet of the front or rear of any roadway maintenance machine). BMWED 
and BRS expressed their concern that it would be unsafe to permit work 
to the field side if working limits are not specifically required on 
any adjacent track on that side.
    While paragraph (c)(3) of the consensus language permitted all work 
to continue to the field side of the occupied track only if there was 
no adjacent track present, the consensus language did not impose such a 
limitation in the broad exception for on-ground work on the field side 
of the occupied track in paragraph (e)(2) (now proposed paragraph 
(e)(1)). FRA's original proposal would have permitted certain work to 
continue to the field side, provided that on-track safety (including 
train approach warning) had been established in accordance with this 
subpart on any adjacent track on that side.
    In consideration of the concern raised by BMWED and BRS in their 
joint comments, FRA has adjusted the language originally proposed so as 
to better ensure the safety of the workers on that side of the occupied 
track. In addition to permitting work to continue while exclusively 
positioned on the field side of an occupied track that has no adjacent 
track on that side, the new proposal would also permit work to continue 
while exclusively positioned on the field side of an occupied track 
that has an adjacent track on that side provided that working limits 
have been established on the closest adjacent track on that side and 
there are no movements authorized through the working limits by the 
roadway worker in charge on that adjacent track. The above proposed 
conditions for conducting work while positioned on the field side have 
been summarized in the definition of a new term, ``clear side,'' in 
Sec.  214.336(a)(3), so as to avoid having to repeat these conditions 
in the rule text proposed in paragraphs (c) and (e)(1) of this section. 
In applying the exception in proposed paragraph (e)(1), FRA notes that 
the ``clear side'' portion of the proposal would have the effect of 
requiring that working limits be established on an adjacent track (on 
the field side where the on-ground roadway workers are exclusively 
positioned) that is non-controlled and whose centerline is 25 feet from 
the centerline of the occupied track, while no form of on-track safety 
(i.e., working limits or train approach warning) would be required on 
the adjacent controlled track that is located on the other side of the 
occupied track

[[Page 61641]]

and whose centerline is within 12 feet of the occupied track. FRA seeks 
comment as to the frequency with which these, or similar, circumstances 
would occur, and whether the ``clear side'' portion of the exception in 
proposed paragraph (e)(1) imposes an unreasonable burden.
    Another issue that BMWED and BRS would like FRA to reconsider is 
the proposed requirement for railroads to provide training or issue a 
bulletin with the proposed new requirements for adjacent-track on-track 
safety. The proposed requirement that railroads issue a bulletin or 
other document to the roadway workers was intended as a stop-gap 
measure, together with extended on-track safety job briefings, since 
most railroads provide their employees with annual training at the 
beginning of the calendar year. This was not a new concept, as the 
proposal was based on a similar provision in Emergency Order No. 24, 
and because FRA believes that this, in conjunction with job briefings 
on the issue, is the approach most railroads take to train their 
employees when an operating rule change goes into effect mid-year. 
BMWED and BRS, however, noted in their joint comments that this was not 
adequate training, and expressed their fear that that this would shift 
the burden for effective training from the employer to unsuspecting 
employees. They also noted a concern that the proposed requirement for 
the employers to obtain a written receipt or acknowledgement may also 
affect their memberships' legal rights under the Federal Employers' 
Liability Act. Because of the timing of the withdrawal of the NPRM, FRA 
believes that it can coordinate this NPRM and final rule to correspond 
with the railroad's annual training cycle for roadway worker 
protection, thus making the requirement to issue a bulletin unnecessary 
as a stop-gap measure.
    Finally, the joint comments note that FRA's initial proposal also 
differs from the RSAC consensus language because FRA proposed to move 
the section of the rule that pertains to adjacent-track on-track safety 
from Sec.  214.335(c) to a new proposed Sec.  214.336. FRA does not 
agree with these comments and denies that moving language from one 
section to another, for clarification purposes, changes the substance 
and intent of the provision. Currently, Sec.  214.335 of the existing 
regulation for on-track safety for roadway work groups contains only 
one short provision that is applicable to adjacent track protection, 
that is, paragraph (c). The RSAC recognized that this provision is 
vague as to what circumstances mandate adjacent-track on-track safety, 
and this was the very reason for the RSAC's recommendation to amend it. 
Because of the complex revisions to the regulation with respect to 
adjacent-track on-track safety, and to avoid having too many levels of 
subparagraphs in the rule text, FRA believes it is necessary to create 
a new section. A new section would not change the substance or 
application of the regulation in any way, and additions to regulations 
often require the restructuring of subsections in order to promote 
clear, concise interpretation.
2. Draft Comments of AAR
    AAR submitted draft comments to FRA on September 16, 2008. Although 
the draft comments were received after the date that the NPRM was 
formally withdrawn, FRA has decided to post them to the docket and 
discuss them in this NPRM, in an effort to continue FRA's transparency 
in these proceedings as well as to encourage an open discussion and 
resolution of the related issues at this NPRM stage, rather than at the 
later, final rule stage.
    The first issue concerns the applicability of proposed Sec.  
214.336(a) to ``a roadway work group with at least one of the roadway 
workers on the ground'' (emphasis added). AAR urges FRA to return to 
the consensus language, which applied ``when roadway work group(s) 
consisting of roadway workers on the ground and on-track self-propelled 
equipment are engaged in a common task on an occupied track'' (emphasis 
added). AAR is concerned that this subtle change would bring several 
work activities into the scope of the rule that were not intended to be 
covered by the Working Group consensus language. Specifically, AAR is 
concerned about work activities such as ``an employee remaining within 
the gage of the occupied track fueling a machine; getting off equipment 
to load anchors, spikes, or other equipment; deploying a laser device 
for a tamping machine; and checking cross level.'' AAR proposes that 
FRA amend part of the first sentence of Sec.  214.336(a) from ``with at 
least one of the roadway workers on the ground'' to ``with more than 
one roadway worker on the ground,'' and make further conforming 
amendments by deleting the phrase ``one or more'' in paragraphs (b)(1), 
(2), and (3).
    FRA had proposed to amend this portion of the consensus language 
for clarity, since the consensus language (``when roadway work group(s) 
consisting of roadway workers on the ground and on-track self-propelled 
or coupled equipment are engaged in a common task on an occupied 
track'') contained the words ``roadway work group(s)'' and 
``equipment,'' both of which could be interpreted as plural and result 
in confusion concerning how many roadway workers needed to be on the 
ground before this section would apply. FRA specifically chose the 
clarifying words ``one or more roadway workers on the ground'' because 
FRA believed that this was the intent of the Working Group, since there 
was no safety rationale for excluding roadway work groups that consist 
of only two roadway workers. In choosing this language, FRA assumed 
that in a two-person roadway work group, one roadway worker was 
assigned to operate the equipment, and the other was assigned to 
perform duties on the ground in a common task with the machine and 
presumably its operator. The potential for distraction of the one 
roadway worker on the ground in a roadway work group consisting of only 
two roadway workers is the same as for each of the two roadway workers 
on the ground in a roadway work group consisting of three roadway 
workers. Moreover, FRA analysis of the agency's accident investigations 
of these types of incidents has revealed that four \7\ of the seven 
fatalities on an adjacent track occurred with only one of the roadway 
workers on the ground that had been engaged in a common task with an 
on-track roadway maintenance machine.
---------------------------------------------------------------------------

    \7\ The dates and locations of those incidents were October 9, 
1999 (Juniata, NE), October 30, 2003 (Argyle, IA), March 12, 2007 
(Piketon, OH), and March 27, 2008 (Emporia, KS).
---------------------------------------------------------------------------

    AAR also requested that the exception for hi-rails in proposed 
Sec.  214.336(b)(2) of the former NPRM be expanded to include rail-
bound geometry and detection equipment, since the level of distraction 
posed by this equipment is similar to that of hi-rails. AAR suggests 
that the language in that section be amended by adding ``or self-
propelled track geometry or detector car.'' FRA notes that while a 
rail-bound geometry car tends to be much larger than a hi-rail, it 
seems that the level of distraction is similar for a roadway worker on 
the ground who is field-verifying a measurement behind a geometry car 
and a roadway worker on the ground who is replacing a bolt behind a hi-
rail; nonetheless, FRA seeks comment as to whether this type of 
equipment should be added to the exception.
    The comments further request that an exception be added (i.e., that 
no adjacent-controlled-track on-track safety be required) when there is 
a physical barrier between the occupied track and the adjacent 
controlled track. AAR indicates that there are several locations where 
there is a physical barrier, such as a fence, between tracks operated 
by

[[Page 61642]]

different railroads, especially where the corridor is shared by both 
freight and passenger railroads. AAR believes that this barrier is 
sufficient to protect against movements on an adjacent track located on 
the other side of the barrier, and suggests that a fourth exception be 
added as follows: ``Work on occupied track where there is a physical 
barrier such as a fence between the occupied track and the adjacent 
track.'' While FRA agrees that a continuous permanent or semi-permanent 
barrier could be sufficient to prevent accidental fouling of an 
adjacent controlled track located on the other side of the barrier, FRA 
is concerned that the language that AAR has suggested is overly broad 
and could be interpreted to allow orange construction cones or barrels 
connected with flimsy plastic ``fences'' to be sufficient. FRA seeks 
comment on whether a fourth exception should be added and, if so, 
whether it should be limited to where there is a continuous permanent 
or semi-permanent physical barrier of a certain height, such as a 
chain-linked fence at least 4' in height or a concrete barrier of at 
least 32'' in height, between the occupied track and the adjacent 
controlled track.
    AAR also recommended that FRA permit the machine operator to 
perform work on the ground within 25 feet of the front or rear of the 
roadway maintenance machine that he or she is operating, during 
adjacent-controlled-track movements of 25 mph or less. It would be 
impractical not to allow the operator to step off of his machine and 
walk directly behind it. Accordingly, AAR suggests that the proposed 
paragraph 214.336(a)(2)(i) (now proposed as Sec.  214.336(c)) be 
amended by adding after the word ``movement'' the phrase ``unless the 
employee is operating the machine.'' FRA believes that the phrase 
``unless the employee is the assigned operator of the machine'' would 
better address AAR's concerns, since presumably the employee would 
place the machine in the idle position and set the brakes before 
alighting and, therefore, would not be operating or moving the machine 
from the ground. FRA seeks comment as to whether this amendment should 
be added.
    Finally, AAR requested that FRA reconsider the proposed training 
and recordkeeping requirements in the initial NPRM. While recognizing 
that training is vital, AAR urges FRA to make the effective date for 
training on the new requirements consistent with the railroads' 
training schedules. Regarding the proposed recordkeeping requirements, 
AAR notes that the requirement for a written acknowledgment is 
``burdensome, unwarranted, and violates both Congressional and OMB 
mandates,'' and requests that FRA permit railroads to use electronic 
signatures in lieu of handwritten signatures. While FRA is not opposed 
to permitting electronic signatures under the circumstances proposed in 
the initial NPRM, the proposed recordkeeping requirement has been 
deleted from this NPRM, making this a moot point.
3. Comments of Additional Interested Parties
    FRA received a number of brief comments. The July 30, 2008 joint 
comments submitted by ATDA, BLET, and UTU, expressed support for the 
BMWED and BRS' joint request to extend the comment period on the 
initial NPRM to 60 days. Other brief comments raised different 
concerns, which have been summarized, below.
    Three general comments were submitted to the docket. The first 
general comment was submitted by John Walsh. He indicates that while 
part 214 is intended to provide for the safety of railroad workers, it 
also preempts State laws concerning the railroads. As such, he believes 
that FRA's regulations should also require railroads to provide for the 
protection of emergency workers, including firefighters, emergency 
medical technicians (EMTs), and those working under their direction and 
control. He recommends that railroads annually notify every 
firefighting agency with tracks in their jurisdiction of whom to 
contact whenever the firefighters or EMTs are operating within the 
railroad's right of way, and that railroads have procedures in place to 
restrict train traffic in the area until the firefighters' or EMTs' 
incident commander grants the railroad permission to allow trains to 
pass through the incident area. As Mr. Walsh's comments are outside the 
scope of part 214, it appears that this request would be more 
appropriate if filed in the form of a petition for a new rulemaking 
under 49 CFR 211.11.
    The second general comment was submitted by Michael McGinley, who 
indicates that he is a retiree from the Southern California Regional 
Rail Authority (Metrolink) engineering department. He states that the 
weakest link is the widespread failure of locomotive engineers to 
comply with sounding warning signals upon seeing roadway workers, and 
expressed his belief that this may be due to the part 214 requirements 
being taught to the engineering department employees and not to the 
transportation department employees. He recommends that the application 
of the present regulations be reinforced through the operating 
practices perspective and focus on the locomotive engineers. While FRA 
is not proposing to amend the section that relates to audible warning 
(Sec.  214.339) in this NPRM, FRA notes that this is one of the most 
common violations cited under part 214, and many railroads have taken 
steps to reinforce and raise awareness of these requirements through 
increased training and efficiency testing. Thus, FRA does not believe 
that this section should be amended at this time.
    The third general comment was submitted by Frederic W. Yocum, who 
is a retired railroader who served on RSAC. He suggests that FRA amend 
the language to add the phrase ``or desirable'' to the language 
proposed in the initial NPRM so as to read ``nothing in this section 
prohibits the roadway worker in charge from establishing adjacent-track 
on-track safety as he or she deems necessary or desirable'' (emphasis 
added). He notes that there are probably occasions on which the roadway 
worker in charge would want to increase safety by establishing 
adjacent-track on-track safety, but would not meet the standard of 
``necessary'' if taken literally. FRA recognizes that the roadway 
worker in charge needs the flexibility to establish on-track safety as 
he or she deems necessary for completion of the work, but is mindful 
not to provide unfettered discretion, which could result if the words 
``or desirable'' were to be added. If the nature of the work that is 
being performed by the roadway work group will likely cause one of the 
roadway workers in the group to foul an adjacent track, then additional 
on-track safety is necessary. FRA has added language to the new 
proposed section to ensure that the roadway worker in charge has the 
discretion to establish on-track safety on one or more adjacent tracks 
(regardless of whether the track is controlled or non-controlled) as 
necessary, consistent with both the purpose and requirements of subpart 
C of part 214.
    In addition to these comments, FRA also received comments from Todd 
Cotie, Health and Safety Coordinator for the United Steelworkers Local 
2004, representing 3,200 track maintenance workers across Canada. He 
recommends that trains be ordered to reduce their speed to a maximum of 
30 mph when passing in proximity to workers on adjacent mainline 
tracks, since a slower train would allow engineers and work crews more 
time to notice and react to various situations that occur from the 
passing train. This recommendation is based on various rules, including 
the speed restriction for trains passing in

[[Page 61643]]

proximity to occupied on-track living accommodations (boarding cars) 
that are eight feet away on the adjacent track, just as roadway workers 
would be. As another example, Mr. Cotie submitted a copy of a February 
7, 2008 letter from CN regarding the train clearing guidelines for the 
protection of employees who work under Canadian Rail Operating Rules 
(CROR) Rule 42. These guidelines appear to require that trains be 
instructed by the Rule 42 foreman to proceed through limits at a speed 
not exceeding 30 mph if the employees cannot clear to a location at 
least 19 feet away from the nearest rail of the track on which the 
train is approaching. Mr. Cotie believes that the few minutes of delay 
that would result in slowing a 60-mph freight or 100-mph passenger 
train to 30 mph when passing work crews is well worth assuring the 
security of the workers. FRA believes that its proposal in this NPRM 
assures the security of the roadway workers while taking into 
consideration the productivity costs to the railroads. A detailed 
analysis of this balancing is discussed in the regulatory evaluation, 
which has been posted to the docket.

VII. Section-by-Section Analysis

Proposed Amendments to 49 CFR Part 214, Railroad Workplace Safety

Subpart C--Roadway Worker Protection
Section 214.315 Supervision and Communication
    Given the importance of an on-track safety job briefing in roadway 
workers' understanding of the nature of the work they will be 
conducting and the conditions under which they will conduct it, FRA 
thinks that the existing requirements in Sec.  214.315 for a job 
briefing ``when an employer assigns duties to a roadway worker that 
call for that employee to foul a track'' should also be expanded to 
cover the new proposed procedures for adjacent-controlled-track on-
track safety in Sec.  214.336 if such procedures are required for that 
assignment or if adjacent-track on-track safety is deemed necessary by 
the roadway worker in charge. With a few minor changes, the text 
concerning the additional components of an on-track safety job briefing 
that is proposed in this NPRM was consensus language developed by the 
Working Group and recommended by the full RSAC. The consensus language 
relating to adjacent tracks was proposed as a new paragraph (a)(2) in 
Sec.  214.315, to read: ``Information about any tracks adjacent to the 
track to be occupied, on-track safety for such tracks, and 
identification of roadway maintenance machines that will foul any 
adjacent track. In such cases, the briefing shall include procedural 
instructions addressing the nature of the work to be performed and the 
characteristics of the work location to ensure compliance with this 
part.''
    On December 18, 2007, FRA emailed the Working Group members and 
requested an errata review of a document in which FRA had compiled all 
of the consensus items. In its errata review comments, AAR requested 
that FRA clarify that the provision is not intended to require a 
discussion on the on-track safety of an adjacent track unless on-track 
safety is required on that track by part 214. FRA agrees that this is 
not the intent of the proposed requirement, and has added the language 
``if required by this subpart or deemed necessary by the roadway worker 
in charge'' to the consensus rule text, which has been proposed as new 
paragraph (a)(3). The language concerning the roadway worker in 
charge's discretion was added to emphasize that the roadway worker in 
charge would still be permitted to establish on-track safety on an 
adjacent track, regardless of whether it is controlled or non-
controlled, if it is reasonably necessary given the nature of the work 
that is to be performed. This proposed section would still require the 
on-track safety job briefing to include information concerning any 
``adjacent tracks'' (as defined in Sec.  214.7), so as to serve as a 
warning to each roadway worker of the potential danger in fouling such 
a track, even if no on-track safety is required for that particular 
track because it does not meet the definition of ``adjacent controlled 
track'' in proposed Sec.  214.336(a)(3). While the second sentence of 
the consensus language began with the phrase ``in such cases,'' FRA has 
deleted that language, and proposes to move the rest of the language 
into a new paragraph (a)(4), since the on-track safety job briefing 
must always address the nature of the work to be performed and the 
characteristics of the work location to ensure compliance with this 
subpart, regardless of whether there is an adjacent track present.
    FRA has further clarified in a proposed revision to introductory 
paragraph (a) that this section lists only the minimum items that must 
be discussed in an on-track safety briefing. The words ``at a minimum'' 
were added, and the rest of existing paragraph (a) has been moved to 
proposed paragraphs (a)(1) and (a)(2).
Section 214.335 On-Track Safety Procedures for Roadway Work Groups, 
General
    FRA proposes to amend this section by deleting paragraph (c) and 
creating new requirements in a separate section to address adjacent-
controlled-track on-track safety procedures for certain roadway work 
groups, Sec.  214.336, for the reasons discussed below. Existing 
paragraph (c) reads: ``Roadway work groups engaged in large-scale 
maintenance or construction shall be provided with train approach 
warning in accordance with Sec.  214.327 for movements on adjacent 
tracks that are not included within working limits.''
    The proposal would also amend the heading of Sec.  214.335 to 
reflect the general nature of the remaining requirements in that 
section.
Section 214.336 Adjacent-Controlled-Track On-Track Safety Procedures 
for Certain Roadway Work Groups
Paragraph (a), Procedures; General
    As discussed in Section II.C., above, Sec.  214.335(c) currently 
requires adjacent-track on-track safety for a roadway work group only 
if such a work group is engaged in ``large-scale maintenance or 
construction.'' Under this criterion and the limited guidance provided 
in the preamble to the final rule, many railroads have not been 
providing on-track safety on adjacent tracks for surfacing operations, 
small tie-renewal operations, or similar maintenance operations that, 
while smaller in scale, still include on-track, self-propelled 
equipment. This proposed new section seeks to eliminate this 
interpretive issue by establishing new, more objective criteria for 
determining whether adjacent-track on-track safety is required for a 
roadway work group. Fatalities have occurred in connection with such 
operations, which many believe the existing language should be 
interpreted to cover.
    In developing language to address the increasing number of roadway 
worker fatalities on an adjacent track, the Working Group considered 
that most of the fatalities on an adjacent track occurred when a 
roadway work group with at least one of the roadway workers on the 
ground, was engaged in a common task with on-track, self-propelled 
equipment on an occupied track. In those circumstances, the potential 
for a roadway worker in the group to be distracted from the danger of 
an oncoming train was great due to the noise and dust generated by 
operation of the roadway maintenance machines, the need to avoid 
entanglement in the operation of those

[[Page 61644]]

machines, and the need to monitor the quality of the work being 
performed. This set of factual circumstances became the basis for the 
proposed new criteria for triggering the requirement to establish 
adjacent-track on-track safety in introductory paragraph (c)(1) of the 
consensus language, and in paragraph (a)(1) of proposed new Sec.  
214.336, which, as a general rule, would require that on-track safety 
be established for each adjacent controlled track when a roadway work 
group with at least one of the roadway workers on the ground, is 
engaged in a common task with an on-track roadway maintenance machine 
or coupled equipment on an occupied track. In particular, the on-track 
safety would have to be provided in accordance with Sec.  214.319 
(Working limits, generally) (which includes Sec.  214.321 (Exclusive 
track occupancy), Sec.  214.323 (Foul time), and Sec.  214.325 (Train 
coordination)), or Sec.  214.329 (Train approach warning provided by 
watchmen/lookouts).
    The general rule would be set forth in paragraph (a), which would 
also direct the reader to the three exceptions described in proposed 
paragraph (e). The more specific procedures for adjacent-controlled-
track on-track safety would be set forth in paragraphs (b) and (c), 
concerning movements on an adjacent controlled track at over 25 mph, 
and at 25 mph or less, respectively. Paragraph (a)(2) provides that if 
an occupied track has two adjacent controlled tracks, and one of these 
adjacent controlled tracks has one or more movements authorized at 25 
mph or less, and the other adjacent controlled track has one or more 
concurrent movements authorized at over 25 mph, the more restrictive 
procedures in paragraph (b) would apply. This would require that all 
work (i.e., both on-ground work and roadway maintenance machine or 
coupled equipment movement) on or fouling the occupied track or either 
of the adjacent controlled tracks cease, since, as will be further 
discussed below, there would be no ``clear side'' on which to continue 
even on-ground work on the field side. See proposed Sec.  
214.336(e)(1).
    Paragraph (a)(3) would add definitions of three new terms used 
exclusively in Sec.  214.336 (``adjacent controlled track,'' ``clear 
side,'' and ``occupied track''), and one existing term (``adjacent 
tracks'') that is defined in Sec.  214.7, but which would be repeated 
in this section to ensure that the reader is aware that two similar 
terms are being used in this section, with different meanings. For 
purposes of this section, ``adjacent controlled track'' would mean ``a 
controlled track whose track center is spaced 19 feet or less from the 
track center of the occupied track.'' In contrast, the definition of 
``adjacent tracks'' (in Sec.  214.7) includes any tracks, controlled or 
non-controlled, whose track centers are spaced less than 25 feet apart. 
FRA proposes to adopt this narrower definition of ``adjacent controlled 
track'' based on the roadway worker fatality data discussed above in 
``IV. Recent Roadway Worker Accidents (1997-2008),'' which show that 
the adjacent tracks on which the roadway worker fatalities occurred 
were all controlled tracks and that the track centers of these 
controlled tracks were within 15 feet of the track centers of the 
occupied track. In light of these data, the Working Group agreed that 
19 feet would be a reasonable and safe threshold to trigger the 
requirement to establish on-track safety on an adjacent track and that 
it would be reasonable to cover controlled tracks within that 19-foot 
zone but to exclude non-controlled tracks. FRA notes that the lack of 
fatalities on non-controlled adjacent tracks may be attributable to the 
reduced operating speeds on non-controlled tracks, where railroad 
operating rules generally require that movements must stop short of 
obstructions within half the range of vision. The Working Group 
discussed, and the full RSAC recommended for inclusion in Sec.  
214.335(c), that on-track safety be required for ``adjacent controlled 
track within 19 feet of the centerline of the occupied track'' for 
certain work activities. FRA agrees with this analysis and has 
reflected it in the proposed definition of ``adjacent controlled 
track.'' Note, however, that this section also uses the broader term 
``adjacent track'' or ``adjacent tracks'' in paragraphs (c)(2)(i), 
(e)(1), and (f), as further discussed, below.
    The third proposed definition in Sec.  214.336(a) is for the term 
``clear side.'' FRA proposes to define the term for purposes of Sec.  
214.336 to mean ``the field side of the occupied track that either has 
no adjacent track on that side, or has an adjacent track or tracks on 
that side and working limits have been established in accordance with 
this subpart on the closest adjacent track on that side and there are 
no movements authorized through the working limits by the roadway 
worker in charge on that adjacent track.'' This term was added so that 
the above language would not need to be included in the rule text in 
proposed paragraphs (c) and (e)(1) of this section. It should be noted 
that there are two field sides to each occupied track, beginning at 
each rail and continuing outward and away from the track center of the 
occupied track. One or both field sides may meet the definition of 
``clear'' at some point during the work period (depending on the 
presence of an adjacent track on one or both sides and the method and 
circumstances of the on-track safety established on the adjacent track 
or tracks), but since the term is only used when making the 
determination as to whether work must cease due to one or more 
movements on an adjacent-controlled track, there could be only one 
``clear side'' at the time of that determination.
    FRA believes that the work permitted to continue under the 
circumstances described in proposed paragraphs (c) and (e)(1) should 
not be limited to only those situations where there is no adjacent 
track present. While paragraph (c)(3) of the consensus language 
(pertaining to single or multiple adjacent-track movements at a speed 
of 25 mph or less) permitted all work to continue to the field side of 
the occupied track only if there was no adjacent track present during 
such movements, the consensus language did not impose such a limitation 
in the broad exception for on-ground work on the field side of the 
occupied track in paragraph (e)(2) (now proposed paragraph (e)(1)). 
FRA's original proposal would have permitted certain work to continue, 
provided that on-track safety (including train approach warning) had 
been established in accordance with this subpart on any adjacent track 
on that side. In consideration of the joint comments submitted by BMWED 
and BRS, FRA has adjusted the language originally proposed so as to 
better ensure the safety of the workers on that side of the occupied 
track.
    Specifically, under the proposed sections that use the term ``clear 
side,'' certain work would be permitted to continue on the field side 
furthest from the adjacent controlled track if working limits 
(including those established by making the track inaccessible per Sec.  
214.327 if the adjacent track is non-controlled) have been established 
on that track, and the roadway worker in charge has not authorized any 
movements through the working limits of that adjacent track. This 
proposal would allow the roadway worker in charge to better monitor and 
control the on-track safety of roadway workers performing work in 
triple-track territory, especially since the designated place of safety 
during an adjacent-controlled-track movement may very well be the field 
side towards another adjacent track on which no movement is occurring. 
Train approach warning would not be

[[Page 61645]]

permitted, since a train would be free to move on the adjacent track on 
that side without the roadway worker in charge's permission or 
knowledge. FRA believes that this new language addresses the safety 
concern raised in the joint comments.
    The fourth proposed definition to be used for purposes of Sec.  
214.336 is ``occupied track.'' FRA proposes to define the term 
``occupied track'' to mean the track on which a roadway maintenance 
machine or coupled equipment is located while engaged in a common task 
with a roadway work group. FRA replaced the consensus language of ``on-
track, self-propelled or coupled equipment'' with ``on-track roadway 
maintenance machine or coupled equipment'' so as to use a term that is 
already defined in part 214. It should be noted that while the language 
that would trigger the requirement to establish adjacent-controlled-
track on-track safety contains the term ``on-track roadway maintenance 
machine'' (which excludes hi-rails), the proposed definition of 
``occupied track'' contains the broader term ``roadway maintenance 
machine'' (which includes hi-rails), since a roadway work group that is 
engaged in a common task with a hi-rail would still be ``occupying'' 
the track, regardless of whether adjacent-track on-track safety would 
be required during that task. The language in RSAC-recommended 
paragraph (a) was also modified in light of the proposed new definition 
of ``adjacent controlled track,'' namely by moving the reference to the 
19-foot track center distance and placing it in the definition.
Paragraphs (b), Procedures for Adjacent-Controlled-Track Movements Over 
25 mph; and (c), Procedures for Adjacent-Controlled-Track Movements 25 
mph or Less
    In an effort to make the section easier to understand, FRA has 
reorganized the section into proposed paragraph (b), which lists the 
procedures to follow for one or more adjacent-controlled-track 
movements over 25 mph (i.e., if a train or other on-track equipment is 
authorized to move on an adjacent controlled track at a speed greater 
than 25 mph), and proposed paragraph (c), which lists the procedures to 
follow when one or more adjacent-controlled-track movements are 
authorized at a speed of 25 mph or less.\8\ As noted above in the 
discussion of paragraph (a)(2), if an occupied track has two adjacent 
controlled tracks, and one of these adjacent controlled tracks has one 
or more movements authorized at 25 mph or less, and the other adjacent 
controlled track has one or more concurrent movements authorized at 
over 25 mph, the more restrictive procedures in paragraph (b) would 
apply.
---------------------------------------------------------------------------

    \8\ If a roadway worker in charge, in his or her discretion, 
authorizes a train through working limits on an adjacent controlled 
track at 30 mph, but the train is actually traveling at a speed of 
only 20 mph, the procedures in proposed paragraph (b), regarding 
adjacent-controlled-track movements over 25 mph, would still apply. 
Where exclusive track occupancy is the method of on-track safety 
established on the adjacent controlled track, FRA notes that 
existing Sec.  214.321(d) provides that movements of trains and 
roadway maintenance machines within working limits shall be made 
only under the direction of the roadway worker having control over 
the working limits, and further notes that such movements shall be 
at restricted speed unless a higher speed has been specifically 
authorized by the roadway worker in charge of the working limits.
---------------------------------------------------------------------------

    Proposed paragraph (b)(1) would generally require that each roadway 
worker in the roadway work group stop any work on the ground and stop 
the movement of any roadway maintenance machine or coupled equipment in 
the fouling space of the occupied track and the adjacent controlled 
track, and occupy a predetermined place of safety. If on-track safety 
has been established on the adjacent controlled track through train 
approach warning in accordance with Sec.  214.329 (either as the sole 
method of on-track safety or in addition to working limits), all work 
would have to cease upon receiving a watchman/lookout warning. See 
Sec.  214.336(b)(1)(ii). On the other hand, if working limits have been 
established on the adjacent controlled track and the roadway work group 
has not been assigned a watchman/lookout, all work would have to cease 
upon receiving notification that the roadway worker in charge intends 
to authorize one or more train movements or other on-track equipment 
movements through the working limits on an adjacent controlled track. 
See Sec.  214.336(b)(1)(i). This notification would have to occur 
before the roadway worker in charge releases the working limits, in 
order to comply with existing Sec.  214.319(c).
    FRA notes that the language in proposed paragraph (b)(1) that would 
generally require roadway workers to cease all on-ground work within 
the fouling space of the occupied track could potentially be 
interpreted by some as conflicting with the language in proposed 
paragraph (e)(1), which would permit on-ground work on the clear 
(field) side, a portion of which would be within the fouling space of 
the occupied track. While proposed paragraphs (a) and (e) both contain 
language indicating, directly or indirectly, that paragraph (e) would 
apply notwithstanding any conflicting language in proposed paragraphs 
(a) through (c), to ensure that there is no confusion as to the 
interrelation of these sections, FRA has added the phrase ``except as 
provided in paragraph (e) of this section'' at the beginning of 
proposed paragraph (b)(1) and seeks comment regarding whether this was 
the intent of the consensus language. FRA does not believe that this 
same clarification would be necessary in proposed paragraph (c), since 
proposed paragraph (c) refers the reader to proposed paragraph (b).
    In its errata review comments on the FRA document compiling all of 
the Working Group consensus language, AAR requested that FRA clarify 
whether work would be permitted to resume at a particular location 
after the head-end of the movement had passed or after the entire train 
had passed, under the RSAC-recommended Sec.  214.335(c)(2). As 
discussed in section VI.C.1., above, upon an extensive review of all 
related meeting documents, FRA has determined that railroad 
management's proposal appears to have conceded that the entire movement 
must pass before permitting work to resume, regardless of speed. While 
it is possible that the concession of the entire movement passing was 
conditioned upon railroad labor accepting railroad management's 
proposal as a whole (including the proposal of a 40-mph threshold), FRA 
did not receive any further comments from AAR or any of its members on 
this issue, despite the request for comments on this issue in the July 
17, 2008 NPRM. FRA did, however, receive joint comments from BMWED and 
BRS on this issue. The joint comments noted the hazards presented to 
roadway workers by abnormal consist conditions (e.g., ``shifted loads/
shifted ladings, loose banding, dragging chains/binders, loose brake 
piping, loose/swinging boxcar doors, [and] fragmented brake shoes'') 
and by ``dust, rust, debris, stone, and track construction/maintenance 
materials'' which may become airborne while trains pass roadway 
workers. Given these potential hazards and the information available in 
the related meeting documents, FRA proposes to require that all work 
not subject to an exception be permitted to resume only after the 
entire movement (the trailing-end of the movement) has passed by the 
location of the roadway work group component. See proposed Sec.  
214.336(b)(2). This would apply regardless of the speed of the 
movement, since the procedures for adjacent-controlled-track movements 
at 25 mph or less are the same as for those

[[Page 61646]]

at over 25 mph, unless the work being performed is subject to an 
exception. See proposed Sec.  214.336(c).
    In modifying the language in consensus paragraphs (c)(2) 
(concerning when work would be permitted to resume) and (c)(3) 
(concerning which work would be permitted to continue during adjacent-
controlled-track movements of 25 mph or less) for inclusion in its 
proposal, FRA realized that these same paragraphs did not address 
situations where train approach warning was the established method of 
adjacent-controlled-track on-track safety (either as the sole method, 
or in combination with working limits). Where train approach warning is 
the sole method of adjacent-controlled-track on-track safety, there are 
no working limits established on the adjacent controlled track, and 
trains are not being ``cleared through adjacent-controlled-track 
working limits'' by the roadway worker in charge. Regarding consensus 
paragraph (c)(3) (concerning which work would be permitted to continue 
during adjacent-controlled-track movements of 25 mph or less), this 
simply means that this type of work would always be permitted so long 
as train approach warning was in effect, since a train or other on-
track equipment would not be authorized to exceed 25 mph. Regarding 
consensus paragraph (c)(2) (concerning when work would be permitted to 
resume), this means that the watchman/lookout may not know (depending 
on the span of the working limits and the available sight distance) how 
many movements at any given time are operating within the same segment 
of track on the adjacent-controlled-track as that of the working limits 
established on the occupied track. Thus, it would be reasonable for 
work to resume after the trailing-end of a train passes unless and 
until the watchman/lookout provides a warning for a subsequent train. 
To address these oversights, FRA made adjustments to the consensus 
language in paragraphs (c)(2) and (c)(3) in proposed Sec. Sec.  
214.336(b)(2)(i) and 214.336(c), respectively.
    As the roadway workers are presented with similar safety risks and 
would still receive notification of the train or other on-track 
equipment movements, regardless of the method of adjacent-track on-
track safety established, FRA has decided to adopt language in proposed 
Sec.  214.336(b)(2)(i), that would clarify that a component of a 
roadway work group may resume on-ground work and movement of any 
roadway maintenance machine or coupled equipment on the occupied track 
only after the trailing-end of all trains or other on-track equipment 
moving on the adjacent controlled track (for which a notification or 
warning has been received in accordance with paragraph (b)(1) of this 
section) has passed and remains ahead of \9\ that component of the 
roadway work group. Thus, if there are three trains cleared through the 
working limits by the roadway worker in charge, and there is no 
watchman/lookout assigned, the roadway workers would not, under this 
proposal, be permitted to resume work until the trailing-end of all 
three trains had passed by (and remained ahead of) that component of 
the roadway work group. However, if there are three trains operating 
within the same segment of track on the adjacent-controlled-track as 
that of the working limits established on the occupied track, and there 
is sufficient space between each of the trains to provide adequate 
warning to clear the track, the watchman/lookout may provide a warning 
for the first train, and work would be permitted to resume after the 
trailing-end of that train passed by (and remained ahead of) that 
component of the roadway work group, until such time as the watchman/
lookout provided a warning for the second train, and so forth.
---------------------------------------------------------------------------

    \9\ The language ``and remains ahead of'' was added to this 
section to ensure that a roadway worker who has been passed (e.g., 
at milepost 10) would not be permitted to then move up (e.g., by hi-
rail or walking to milepost 11) and perform work on the occupied 
track at a point alongside of (or ahead of) a train that has stopped 
on the adjacent controlled track (e.g., with its trailing-end 
located at milepost 10.9 and its head-end located at milepost 11.2).
---------------------------------------------------------------------------

    On the other hand, if the train or other on-track equipment were to 
stop before its trailing-end passed all of the roadway workers in the 
roadway work group, then the work to be performed on or while fouling 
the occupied track ahead of the trailing-end of the train or other on-
track equipment on the adjacent controlled track would be permitted to 
resume only if adjacent-controlled-track on-track safety has been 
established. See proposed Sec.  214.336(b)(2)(ii). In most cases, this 
would likely mean that on-track safety through train approach warning 
(Sec.  214.329) has been established on the adjacent track. See 
proposed Sec.  214.336(b)(2)(ii)(A). In the remaining cases, this would 
mean that the roadway worker in charge has communicated with the train 
engineer or equipment operator and established that such train or other 
on-track equipment shall move only under his or her direction. See 
proposed Sec.  214.336(b)(2)(ii)(B).
    It should be noted that the train approach warning option provided 
in proposed Sec.  214.336(b)(2)(ii)(A) would not be permitted alongside 
the train (or for a certain distance on the occupied track ahead of the 
location of the train on the adjacent controlled track), since the 
train, if it were traveling at the ``maximum speed authorized on that 
track'' would already be at the roadway worker's location (or, at 
certain distances, would be able to reach the roadway worker's location 
sooner than 15 seconds) and would not permit the roadway worker any (or 
sufficient) time to clear. Under such circumstances, work would not be 
permitted to resume until the conditions proposed in Sec.  
214.336(b)(2)(ii)(B) have been met, or until the train resumes its 
movement and its trailing-end passes the roadway worker's location, 
whichever comes first.
    The proposed procedures to be followed for adjacent-track movements 
of 25 mph or less are the same as those procedures for adjacent-track 
movements over 25 mph, except that work would be permitted to continue 
in certain circumstances without regard to when the trailing-end passed 
the roadway work group's location, due to the low speed of the 
movements. In proposed paragraph (a)(2), FRA makes clear that if an 
occupied track has two adjacent controlled tracks, and one of the 
tracks has one or more adjacent-controlled-track movements authorized 
at 25 mph or less, and the other has one or more concurrent adjacent-
controlled-track movements authorized at over 25 mph, the more 
restrictive procedures in paragraph (b) would apply.
    The circumstances under which work may continue during low-speed 
movements on adjacent controlled tracks have been included in proposed 
paragraph (c). Unless the work falls under one of the exceptions in 
proposed paragraph (e), the work that would be permitted to continue 
after receiving a warning or notification of an adjacent-controlled-
track movement would have to be performed more than 25 feet in front of 
or behind any roadway maintenance machine that is on or fouling the 
occupied track. While existing Sec.  214.341(a)(5) requires each 
employer to include in its on-track safety program specific provisions 
addressing spacing ``between machines and roadway workers to prevent 
personal injury,'' the rule does not prescribe a specific distance, as 
certain work activities may require a roadway worker to work closer to 
a machine than others. Many railroads that subscribe to the General 
Code of Operating Rules (``GCOR''), for example, have adopted a 15-foot 
work zone in which roadway workers are not permitted to enter without 
first communicating with the

[[Page 61647]]

operator of the equipment and establishing safe work procedures. See 
GCOR Rule 136.7.3. The Working Group proposed a larger work zone of 25 
feet to help lessen the distraction and danger posed by a roadway 
maintenance machine working on or fouling an occupied track, as both an 
on-ground roadway worker and an operator of a roadway maintenance 
machine will be performing work with the additional distraction of one 
or more adjacent-controlled-track movements. FRA proposes to adopt this 
recommendation as one of the circumstances for permitting work to 
continue as described in proposed paragraph (c).
    FRA believes that the intent of the consensus language regarding 
the 25-foot zone in paragraph (c) was to ensure that roadway workers 
were not performing on-ground work within 25 feet of the forward or 
rearward path of a moving machine; thus, workers would still be 
permitted to work alongside a machine on a clear side (to verify the 
quality of the work being performed by that machine, for example). A 
roadway worker that is performing duties alongside a roadway 
maintenance machine would, of course, need to be mindful of the 
machine's footprint (which would include any brooms or wings of a 
machine, if extended) in deciding where to position himself or herself 
in performing such duties. FRA believes that the procedures addressing 
spacing ``between machines and roadway workers to prevent personal 
injury'' that are required by existing Sec.  214.341(a)(5) should 
adequately address the risk of working alongside a machine (under any 
circumstance, not just during movements on adjacent controlled track); 
however, FRA seeks comment regarding the adequacy of these procedures.
    Proposed paragraph (c) would permit work to continue that is 
performed ``exclusively while positioned on or between the rails of the 
occupied track or to the clear side'' of the occupied track, provided 
it is performed outside of the 25-foot work zone discussed above. The 
rationale for permitting work to continue while positioned between the 
rails is that a roadway worker who is positioned between the rails of 
the occupied track is in little danger of fouling the adjacent 
controlled track. This proposed condition is similar to an existing 
provision in Sec.  214.103(d) that permits bridge workers to perform 
minor repair work exclusively between the rails (so long as the weight-
bearing portion of the roadway worker's body is between the rails) 
without any fall protection. As this condition has worked well in the 
bridge worker area, FRA proposes to adopt the RSAC-recommended 
condition in the roadway worker area.
    The other set of circumstances in proposed paragraph (c) for 
permitting work to continue when a movement on the adjacent controlled 
track is authorized at 25 mph or less is when work is performed to the 
``clear side'' of the occupied track, provided that it is performed 
outside of the 25-foot work zone. As discussed above in the analysis of 
proposed paragraph (a)(3) of this section, the ``clear side'' means 
``the field side of the occupied track that either has no adjacent 
track on that side, or has an adjacent track or tracks on that side and 
working limits have been established in accordance with this subpart on 
the closest adjacent track on that side and there are no movements 
authorized through the working limits by the roadway worker in charge 
on that adjacent track.'' Both the Working Group and FRA recognize that 
if there is little danger of a roadway worker fouling an adjacent 
controlled track (e.g., Main Track No. 1) while positioned between the 
rails of the occupied track (e.g., Main Track No. 2), a roadway worker 
is in even less danger of fouling that adjacent controlled track if he 
or she is positioned on the field side of the occupied track furthest 
from the adjacent controlled track. If, however, there is another 
adjacent track present (e.g., Main Track No. 3, whether controlled or 
non-controlled) on the field side farthest from the adjacent controlled 
track on which a train or other on-track equipment movement has been 
authorized (e.g., Main Track No. 1), then the roadway worker would 
potentially be in danger of fouling the other adjacent track (e.g., 
Main Track No. 3). FRA makes clear that even if on-track safety in the 
form of working limits had been established on the other adjacent track 
(e.g., Main Track No. 3), the roadway worker would still be in 
potential danger if he or she were to foul that adjacent track if the 
protection had in effect been nullified by the roadway worker in charge 
authorizing a train or other on-track equipment movement through the 
working limits on that other adjacent track. This is why FRA is 
proposing that work would be permitted on that side only if it truly is 
a ``clear side.''
    Given the potential danger posed by concurrent movements on two 
adjacent controlled tracks, it is important to note that while proposed 
Sec.  214.336 would apply to each adjacent controlled track 
individually, the impact on the type of work that would be permitted to 
continue on the occupied track must be examined as a whole. Thus, where 
a roadway worker receives notification of adjacent-controlled-track 
movements authorized at 25 mph or less that are occurring concurrently 
on both adjacent tracks, FRA proposes that the roadway worker would not 
be permitted to work on either field side of the occupied track, as the 
movement on one adjacent controlled track would not permit any work on 
the field side closest to it, and the movement on the other adjacent 
(controlled or non-controlled) track would not permit any work on the 
field side closest to it. See proposed paragraph (c)(2). Under these 
circumstances, there would be no ``clear side'' on which to perform 
even on-ground work as provided in the general exception in proposed 
paragraph (e)(1).
    It should also be noted that paragraph (c) only directly addresses 
the types of work that a component of a roadway work group may continue 
performing while waiting for the trailing-end of an adjacent-
controlled-track movement to pass by that component's location. It does 
not directly address when all other work (i.e., work that paragraph (c) 
does not cover) may resume. Thus, roadway workers who are assigned to 
perform work not covered by paragraph (c) must look to the procedures 
in paragraph (b)(2) for guidance. For example, since on-ground work 
that would be performed between the rails and near a roadway 
maintenance machine (i.e., in the 25-foot zone in front of or behind a 
machine that is on or fouling the occupied track) is not covered by 
paragraph (c), such work would not be permitted to resume until the 
conditions in paragraph (b)(2) had been fulfilled. That is to say, such 
work (as well as all other work that must cease as noted in paragraph 
(b) that is not permitted to continue by paragraph (c) and not subject 
to one of the general exceptions in paragraph (e)) would be permitted 
to resume only after the trailing-end of all movements (for which a 
notification or warning has been received in accordance with paragraph 
(b)(1) of this section) have passed by (and remain ahead of) the 
roadway work group component's location. Paragraph (d), Procedures for 
a roadway maintenance machine or coupled equipment fouling an adjacent 
controlled track.
    Regarding the prohibition in consensus paragraph (d) against 
``equipment'' fouling an adjacent controlled track unless protected by 
working limits, FRA has changed the term to ``roadway maintenance 
machine'' to clarify that this prohibition is meant to be broad and 
would include hi-rails that are part of the roadway work group or 
otherwise working within the same working limits as the roadway

[[Page 61648]]

work group. See proposed Sec. Sec.  214.336(d) and 214.336(e)(2). While 
a hi-rail alone would not trigger the requirement to establish 
adjacent-controlled-track on-track safety, once a hi-rail has become 
part of a roadway work group involving at least one roadway worker on 
the ground and ``an on-track roadway maintenance machine or coupled 
equipment,'' the hi-rail would be subject to this prohibition against 
fouling, as well as to the machine spacing requirement in consensus 
paragraph (c). See proposed Sec. Sec.  214.336(c), 214.336(d), and 
214.336(e)(2). Further, FRA clarifies that the prohibition was not 
meant to be so broad that a roadway worker would not be permitted to 
use readily portable tools or equipment similar to a jackhammer, such 
as a pneumatic tamping gun or a spike driver, on an adjacent controlled 
track while afforded on-track safety through train approach warning. 
FRA would urge that employers and employees use common sense in 
determining which tools or equipment they would permit to be used or 
use under train approach warning. If there is any doubt as to whether 
the equipment could be readily removed, the employee must not foul the 
track with those tools or equipment under watchman/lookout (i.e., train 
approach warning) protection.
Paragraph (e), Exceptions to the Requirement for Adjacent-Controlled-
Track On-Track Safety
    The Working Group also discussed, and the RSAC recommended, three 
exceptions when adjacent-controlled-track on-track safety would not 
have to be established at all. See consensus paragraphs (e)(1)-(e)(3). 
FRA proposes to adopt all three exceptions in this NPRM. See proposed 
Sec.  214.336(e).
    The first proposed exception to the requirement for adjacent-
controlled-track on-track safety would be for one or more on-ground 
roadway workers performing work while exclusively positioned on the 
clear (field) side of the occupied track, provided that there should 
essentially be no danger posed by any other adjacent track. In 
particular, there would be no danger posed by any other adjacent track 
either because there is no adjacent track on the field side of the 
occupied track or, even though there is an adjacent track on the field 
side of the occupied track, working limits have been established in 
accordance with this subpart on the closest adjacent track on that side 
and there are no movements authorized through the working limits on 
that adjacent track. Regarding the language ``while exclusively 
positioned on the clear side,'' FRA notes that this language refers to 
the positioning of the weight-bearing portion of the roadway worker's 
body. This interpretation is consistent with FRA's interpretation of a 
similar provision in the bridge worker area (see Sec.  214.103(d)) and 
also with the working group's intent that the exception in proposed 
paragraph (e)(1) be written so as to permit an on-ground roadway worker 
to change out a stone on a rail grinder, which may require that part of 
his or her body (e.g., his or her hands) be within the gage of the 
occupied track.
    As noted above in the discussion of proposed paragraphs (b)(1) and 
(c), this exception would apply notwithstanding any conflicting 
language in proposed paragraphs (a) through (c). Thus, on-ground work 
within the fouling space of the occupied track on the clear (field) 
side would still be permitted to continue during adjacent-controlled-
track movements occurring on the other field side of the occupied 
track, regardless of the speed of those movements. Moreover, this on-
ground work would not be subject to the condition that the on-ground 
work permitted to continue must be conducted more than 25 feet in front 
of or behind any roadway maintenance machine on or fouling the occupied 
track. FRA seeks comment as to whether the 25-foot zone should apply to 
the work performed in paragraph (e)(1) as well.
    The second exception to the requirement for adjacent-controlled-
track on-track safety would be for a hi-rail vehicle on the occupied 
track, provided such hi-rail vehicle is not coupled to any equipment 
and not operating on the same occupied track and within working limits 
of a roadway work group as described in paragraph (a) of this section. 
See proposed Sec.  214.336(e)(2). As discussed in Section IV. of this 
preamble, there has been only one adjacent-track fatality where a 
roadway work group had been engaged in a common task with a hi-rail 
vehicle as defined in Sec.  214.7, and the roadway workers in that case 
were under the impression that adjacent-track on-track safety was in 
effect when, due to a miscommunication, it was not. Given the 
circumstances of the one fatality and because the duties normally 
performed by an employee operating a hi-rail tend to be less 
distracting to on-ground roadway workers and produce less dust and 
noise than a typical on-track roadway maintenance machine, FRA proposes 
that adjacent-track on-track safety not be required for roadway work 
groups engaged in a common task with a hi-rail.
    The consensus language for this second exception also included 
language indicating that where multiple hi-rails are engaged in a 
common task, the on-track safety briefing shall include discussion of 
the nature of the work to be performed to determine if ``adjacent 
controlled track protection'' is necessary. FRA has added a cross-
reference to proposed Sec.  214.315(a)(4) to this language in its 
proposal because the roadway worker in charge must always consider the 
nature of the work to be performed to determine the appropriate level 
of on-track safety. In fact, the consensus language emphasizes that 
nothing in this subpart prohibits the roadway worker in charge from 
establishing adjacent controlled track protection as he or she deems 
necessary. Consensus paragraph (e)(1) (now proposed paragraph (e)(2)) 
was also amended to remove the words ``as defined in Sec.  214.7,'' 
since each time that a term defined in Sec.  214.7 is used in part 214, 
FRA intends the term to be interpreted in the manner in which it is 
defined in Sec.  214.7, unless otherwise noted. As discussed in section 
VI.C.2., above, FRA seeks comment as to whether this proposed exception 
should be expanded to include rail-bound geometry and detection 
equipment.
    The third proposed exception to the requirement for adjacent-
controlled-track on-track safety is for a catenary maintenance tower 
car with one or more roadway workers positioned on the ground 
exclusively within the gage of the occupied track for the sole purpose 
of applying or removing grounds. As discussed in Section IV. of this 
preamble, there have been no adjacent-track fatalities where a roadway 
work group had been engaged in a common task with a catenary 
maintenance tower car on the occupied track and the duties normally 
performed by an employee operating a catenary maintenance tower car 
tend to be less distracting to on-ground roadway workers and produce 
less dust and noise than a typical on-track roadway maintenance 
machine. FRA proposes to add this exception, with the same caveat added 
as for hi-rails, which is that once the catenary maintenance tower car 
is operating on the same occupied track and within the working limits 
of a roadway work group as described in paragraph (a) of this section, 
the exception would no longer apply.
    As discussed in section VI.C.2., above, AAR is requesting that a 
fourth exception be added when there is a physical barrier between the 
occupied track and the adjacent controlled track. FRA seeks comment on 
whether a fourth exception should be added, and if so, whether it 
should be limited to ``where there is a continuous permanent

[[Page 61649]]

or semi-permanent physical barrier of a certain height, such as a 
chain-linked fence of at least 4' in height or a concrete barrier of at 
least 32'' in height, between the occupied track and the adjacent 
controlled track.''
Paragraph (f), Discretion of Roadway Worker in Charge
    In BMWED's errata review comments on the FRA document compiling all 
of the Working Group consensus language that was recommended to FRA by 
the RSAC, BMWED noted that from the manner in which the consensus 
exceptions (paragraphs (e)(1)-(e)(3)) were constructed, one could 
interpret that the roadway worker in charge of on-ground roadway 
workers exclusively performing work on the field side of the occupied 
track described in consensus paragraph (e)(2) would not be afforded the 
same right to establish a greater level of adjacent-track on-track 
safety as the roadway worker in charge of the hi-rail vehicle or 
catenary maintenance tower car described in paragraphs (e)(1) and 
(e)(3), respectively. FRA agrees that the provisions should be 
consistent. The section has been reorganized so that the language in 
paragraph (e)(3) stating that ``[n]othing in this subpart prohibits the 
roadway worker in charge of the catenary maintenance tower car from 
establishing adjacent track protection, as he/she deems necessary'' has 
been removed from paragraph (e)(3) (along with similar language in 
paragraph (e)(1)) and slightly reworded and moved into a new paragraph 
(f) so as to apply generally to proposed Sec.  214.336, including all 
three exceptions in proposed paragraphs (e)(1)-(e)(3). Proposed 
paragraph (f) reads--``Discretion of roadway worker in charge. Nothing 
in this subpart prohibits the roadway worker in charge from 
establishing on-track safety on one or more adjacent tracks as he or 
she deems necessary consistent with both the purpose and requirements 
of this subpart.''

VIII. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This NPRM has been evaluated in accordance with existing policies 
and procedures, and determined to be significant under both Executive 
Order 12866 and DOT policies and procedures. See 44 FR 11034 (Feb. 26, 
1979). FRA has prepared and placed in the docket a regulatory 
evaluation addressing the economic impact of this NPRM. Document 
inspection and copying facilities are available at the Federal Docket 
Management Facility, U.S. Department of Transportation, West Building, 
Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 
20590. Docket material is also available for inspection on the Internet 
at http://www.regulations.gov. Photocopies may also be obtained by 
submitting a written request to the FRA Docket Clerk at Office of Chief 
Counsel, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey 
Avenue, SE., Washington, DC 20590; please refer to Docket No. FRA-2008-
0059, Notice No. 3.
    Certain of the requirements reflect current industry practice, or 
restate existing regulations, or both. As a result, in calculating the 
costs of this NPRM, FRA has neither included the costs of those actions 
that would be performed voluntarily in the absence of a regulation, nor 
has FRA included the costs of those actions that would be required by 
an existing regulation.
    This evaluation includes quantitative measurements and qualitative 
discussions of implementation costs for this proposed rule. The costs 
would primarily be imposed by a small increase in job briefing time and 
additional resources spent to provide on-track safety for the safe 
conduct of other than large-scale maintenance and construction of track 
located adjacent to (and within a certain distance of) one or more 
controlled tracks on which train movements may be occurring. Training 
costs would also accrue. The benefits would primarily accrue from a 
reduction in roadway worker casualties (fatalities and injuries). 
Business benefits stemming from avoided train delays and property 
damages would also accrue.
    FRA estimates that the present value (PV, 7%) of the total 20-year 
costs that the industry would be expected to incur to comply with the 
requirements in this NPRM would be $130.7 million. FRA also estimates 
that the PV (7%) of the total 20-year benefits accruing to society from 
the implementation of the requirements would be $131.9 million. The 
following table includes a summary of the regulatory impact analysis 
(RIA) costs and benefits, broken down by section of the rule and 
benefit category, respectively:

                        Cost and Benefit Summary
------------------------------------------------------------------------
                                        Reference:     Total: PV, 7% (in
     Costs (by section of rule)       section of RIA  millions--rounded)
------------------------------------------------------------------------
Section 214.315--Job Briefings......             9.2             $1.21
Section 214.335--On Track...........             9.4            127.59
Other (Signalmen, Lone Workers).....             9.4              1.70
Section 214.336--Training...........             9.4              0.16
                                     -----------------------------------
    COST Total for NPRM.............  ..............            130.65
------------------------------------------------------------------------
Benefits                                  Reference:     Total: PV, 7%
(by benefit category)                 section of RIA    (in millions--
                                                              rounded)
 
Nonfatal Injury Prevention..........            10.3              5.65
Adjacent Track Revision.............            10.4              6.04
Damage Reduction....................            10.5              0.64
Reporting and Recordkeeping--Cost               10.6              0.01
 Savings............................
Business Industry Benefit...........            10.7             39.60
                                     -----------------------------------
    BENEFIT Total for NPRM..........  ..............            131.94
------------------------------------------------------------------------


[[Page 61650]]

    FRA believes that taking into account non-quantifiable benefits, 
including reduced train delays and property damages resulting from 
roadway worker incidents, the benefits associated with this proposed 
rule would justify the implementation costs. FRA requests comment on 
all of the assumptions used in the regulatory evaluation to calculate 
the costs and benefits.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impact on small entities. FRA has prepared and placed in the 
docket a Small Entity Impact Assessment and Evaluation that assesses 
the small entity impact of this NPRM. Document inspection and copying 
facilities are available at the Docket Management Facility, U.S. 
Department of Transportation, West Building, Ground Floor, Room W12-
140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Docket material 
is also available for inspection on the Internet at http://www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Mail Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue, 
SE., Washington, DC 20590; please refer to Docket No. FRA-2008-0059, 
Notice No. 3.
    This Small Entity Impact Assessment and Evaluation concludes that 
this proposed rule would not 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 Act (RFA) requirements, FRA invites comments from all 
interested parties concerning data and information regarding the 
potential economic impact caused by this proposed rule, during the 
comment period.
    The U.S. Small Business Administration (SBA) stipulates in its 
``Size Standards'' that a ``for profit'' railroad business firm may not 
have more than ``1,500 employees for ``Line-Haul Operating'' Railroads 
and 500 employees for ``Switching and Terminal Establishments'' to be 
considered as a ``small entity.'' \10\ ``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. SBA's ``size 
standards'' may be altered by Federal agencies upon consultation with 
SBA and in conjunction with public comment.
---------------------------------------------------------------------------

    \10\ ``Table of Size Standards,'' U.S. Small Business 
Administration, January 31, 1996, 13 CFR part 121.
---------------------------------------------------------------------------

    Pursuant to that authority, FRA has published a final policy that 
classifies ``small entities'' as, inter alia, being railroads that meet 
the line haulage revenue requirements of a Class III railroad.\11\ 49 
CFR part 209, appendix C. Currently, the revenue requirements are 20 
million inflation-adjusted dollars or less in annual operating revenue. 
The 20-million limit is based on the Surface Transportation Board's 
threshold of a Class III railroad carrier, which is adjusted by 
applying the railroad revenue deflator adjustment.\12\ The same dollar 
limit on revenues is established to determine whether a railroad 
shipper or contractor is a small entity. FRA is using this definition 
of ``small entity'' for regulatory flexibility purposes in this 
rulemaking.
---------------------------------------------------------------------------

    \11\ See 68 FR 24891 (May 9, 2003).
    \12\ For further information on the calculation of the specific 
dollar limit, please reference 49 CFR part 1201.
---------------------------------------------------------------------------

    There are approximately 665 small railroads.\13\ Potentially all 
small railroads could be impacted by this proposed regulation. However, 
because of certain characteristics that these railroads typically have, 
there should not be any impact on the majority of them. Most have only 
single-track operations. Some small railroads such as the tourist and 
historic railroads, operate across the lines of other railroads that 
would bear the burden or impact of the proposed rules requirements. 
Finally, other small railroads, if they do have more than a single 
track, typically have operations that are light enough such that the 
railroads have generally always performed the pertinent trackside work 
with the track and right-of-way taken out of service, or conducted the 
work during hours that the track is not used.
---------------------------------------------------------------------------

    \13\ 715 railroads--50 (large freight, medium freight, 
passenger, and commuter railroads) = 665 small railroads.
---------------------------------------------------------------------------

    In addition, FRA is not aware of any commuter railroads that 
qualify as small entities. This is likely because commuter railroad 
operations in the United States are part of larger governmental 
entities whose jurisdictions exceed 50,000 in population. See 49 CFR 
part 209, appendix C.
    FRA is uncertain as to the number of contractors that would be 
affected by this proposed rule. FRA is aware that some railroads hire 
contractors to conduct some of the functions of roadway workers on 
their railroads. However, most of the costs associated with the burdens 
from this rulemaking would ultimately get passed on to the pertinent 
railroad. Most likely, the contracts would be written to reflect that, 
and the contractor would bear no additional burden for the proposed 
requirements. In addition, FRA is uncertain as to the number of 
contractors that would be considered to be small entities. FRA requests 
any information during the rulemaking comment period related to 
contractors and the burdens that might impact them as a result of this 
proposed rulemaking.
    No other small businesses (non-railroads) are expected to be 
impacted by this proposed rulemaking.
    The impacts from this regulation are primarily a result of the 
proposed requirements for roadway work groups to be provided on-track 
safety when working on a track within close proximity of an adjacent 
track that is controlled. Again, since small railroads either do not 
have any adjacent track or conduct track work on the occupied track 
with an adjacent track when the adjacent track is out of service, there 
is no impact for small railroads. Since FRA does not anticipate that 
this proposed rule would impose any burdens on small entities, there is 
no alternative treatment proposed for small entities.
    Having made these determinations, FRA certifies that this NPRM is 
not expected to have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act or 
Executive Order 13272.

C. Paperwork Reduction Act

    The information collection requirements in this proposed 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 and current information collection 
requirements, and the estimated time to fulfill each requirement are as 
follows:

[[Page 61651]]



----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
   CFR section (if applicable)     Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.119--Part 214      350 Safety           150 forms..........  4 hours............             600
 Railroad Workplace Safety          Inspectors.
 Violation Report.
214.303--Railroad On-Track Safety
 Programs
    --Amendments to Programs.....  60 Railroads.......  20 amend. + 584      20 hours; 4 hrs....           2,736
                                                         amend.
    --Subsequent Years: New        5 New Railroads....  5 new prog.........  250 hours..........           1,250
     Programs.
214.313--Good Faith Challenges to  20 Railroads.......  80 challenges......  4 hours per                     320
 On-Track Safety Rules.                                                       challenge.
214.315/335--Supervision and
 Communication
    --Job Briefings..............  50,000 Roadway       16,350,000           2 minutes per               545,000
                                    Workers.             briefings.           briefing.
    --Adjacent-Track Safety        24,500 Roadway       2,403,450 briefings  30 seconds per               20,029
     Briefings (New Requirement).   Workers.                                  briefing.
214.321--Exclusive Track           8,583 Roadway        700,739 written      1 minute...........          11,679
 Occupancy--Working Limits.         Workers.             authorities.
214.325--Train Coordination
    --Establishing Working Limits  50,000 Roadway       36,500               15 seconds.........             152
     through Communication.         Workers.             communications.
214.327--Inaccessible Track
    --Working Limits on Non-       718 Railroads......  50,000               10 minutes.........           8,333
     Controlled Track:                                   notifications.
     Notifications.
214.336--Procedures for Adjacent-
 Controlled-Track Movements Over
 25 mph (New Requirements)
    --Notifications/Watchmen/      100 Railroads......  10,000 notific.....  15 seconds.........              42
     Lookout Warnings.
    --Roadway Worker               100 Railroads......  3,000 comm.........  1 minute...........              50
     Communication with Train
     Engineers or Equipment
     Operators.
Procedures for Adjacent-
 Controlled-Track Movements 25
 mph or Less
    --Notifications/Watchmen/      100 Railroads......  3,000 notific......  15 seconds.........              13
     Lookout Warnings.
    --Roadway Worker               100 Railroads......  1,500 comm.........  1 minute...........              25
     Communication with Train
     Engineers or Equipment
     Operators.
214.337--On-Track Safety           718 Railroads......  2,080,000            30 seconds.........          17,333
 Procedures for Lone Workers:                            statements.
 Statements by Lone Workers.
214.343/345/347/349/351/353/355--  50,000 Roadway       50,000 tr. Empl....  4.5 hours..........         225,000
 Training Requirements.             Workers.
    --Additional On-Track Safety   35,000 Roadway       35,000 tr. Empl....  5 minutes..........           2,917
     Training (New Requirement).    Workers.
    --Records of Training........  50,000 Roadway       50,000 records.....  2 minutes..........           1,667
                                    Workers.
214.503--Good Faith Challenges;
 Procedures for Notification and
 Resolution
    --Notifications for Non-       50,000 Roadway       125 notifications..  10 minutes.........              21
     Compliant Roadway              Workers.
     Maintenance Machines or
     Unsafe Condition.
    --Development of Resolution    644 Railroads......  10 procedures......  2 hours............              20
     Procedures.
214.505--Required Environmental    644 Railroads......  10 lists...........  1 hour.............              10
 Control and Protection Systems
 for New On-Track Roadway
 Maintenance Machines with
 Enclosed Cabs.
214.507--As-Built Light Weight on  644 Railroads......  1,000 stickers.....  5 minutes..........              83
 New On-Track Roadway Maintenance
 Machines.
214.511--Required Audible Warning  644 Railroads......  3,700 identified     5 minutes..........             308
 Devices for New On-Track Roadway                        mechanisms.
 Maintenance Machines.
214.513--Retrofitting of Existing
 On-Track Roadway Maintenance
 Machines.
    --Identification of            703 Railroads......  200 mechanisms.....  5 minutes..........              17
     Triggering Mechanism--Horns.
214.515--Overhead Covers for       644 Railroads......  500 requests + 500   10 minutes; 20                  250
 Existing On-Track Roadway                               responses.           minutes.
 Maintenance Machines.
214.517--Retrofitting of Existing  644 Railroads......  500 stencils.......  5 minutes..........              42
 On-Track Roadway Maintenance
 Machines Manufactured on or
 after Jan. 1, 1991.
214.518--Safe and Secure Position
 for Riders
    --Positions Identified by      644 Railroads......  1,000 stencils.....  5 minutes..........              83
     Stencils/Markings/Notices.
214.523--Hi-Rail Vehicles........  644 Railroads......  2,000 records......  60 minutes.........           2,000
    --Non-Complying Conditions...  644 Railroads......  500 tags + 500       10 min.; 15 min....             208
                                                         reports.
214.527--Inspection for            644 Railroads......  550 tags + 550       5 min.; 15 min.....             184
 Compliance; Repair Schedules.                           reports.

[[Page 61652]]

 
214.533--Schedule of Repairs;      644 Railroads......  250 records........  15 minutes.........              63
 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), FRA solicits comments concerning whether these 
information collection requirements are necessary for the proper 
performance of the functions 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 Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at 
202-493-6073.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New 
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following 
addresses: [email protected] or [email protected].
    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 is not authorized to 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 current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. 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. This NPRM 
will not have a substantial direct effect on the States, on the 
relationship between the National government and the States, or on the 
distribution of power and responsibilities among various levels of 
government.
    One of the fundamental federalism principles, as stated in Section 
2(a) of Executive Order 13132, is that ``Federalism is rooted in the 
belief that issues that are not national in scope or significance are 
most appropriately addressed by the level of government closest to the 
people.'' Congress expressed its intent that there be national 
uniformity of regulation concerning railroad safety matters when it 
enacted 49 U.S.C. 20106. As amended to date, that section provides that 
all regulations prescribed by the Secretary of Transportation with 
respect to railroad safety matters and the Secretary of Homeland 
Security with respect to railroad security matters preempt any State 
law, regulation, or order covering the same subject matter, except a 
provision necessary to eliminate or reduce an essentially local safety 
or security hazard that is not incompatible with a Federal law, 
regulation, or order and that does not unreasonably burden interstate 
commerce. Nothing in this NPRM proposes to alter the preemptive effect 
of the RWP Rule so these provisions, once adopted as a final rule, 
would have the same preemptive effect as the current RWP Rule in 
accordance with the statute.
    FRA notes that the above factors have been considered throughout 
the development of this NPRM both internally and through discussions 
within the RSAC forum, as described in Sections VI and VII of this 
preamble. The full RSAC, which, prior to the publication of this NPRM, 
reached consensus on proposed rule text and recommended the proposal to 
FRA, has as permanent voting members two organizations representing 
State and local interests: AASHTO and ASRSM. As such, these State 
organizations concurred with the proposed requirements, which differ in 
only limited respects from the requirements contained in this NPRM. The 
RSAC regularly provides recommendations to the FRA Administrator for 
solutions to regulatory issues that reflect significant input from its 
State members. To date, FRA has received no indication of concerns 
about the Federalism implications of this rulemaking from these 
representatives or from any other representative.
    For the foregoing reasons, FRA believes that this NPRM is in 
accordance with the principles and criteria contained in Executive 
Order 13132.

E. Environmental Impact

    FRA has evaluated this NPRM in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (see 64 FR 28545 
(May 26, 1999)) as required by the National Environmental Policy Act 
(see 42 U.S.C. 4321 et seq.), other environmental statutes, Executive 
Orders, and related regulatory requirements. FRA has determined that 
this NPRM is not a major FRA action (requiring the preparation of an 
environmental impact statement or environmental assessment) because it 
is categorically excluded from detailed environmental review pursuant 
to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 26, 
1999). In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this NPRM is 
not a major Federal action significantly affecting the quality of the 
human environment.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), 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

[[Page 61653]]

requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires --``[b]efore promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (annually 
adjusted for inflation) 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. * * *''
    The written statement must detail the effect on State, local, and 
tribal governments and the private sector. This NPRM will not result in 
the expenditure, in the aggregate, of $141,300,000 in any one year, and 
thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355 (May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) that is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this NPRM in accordance with Executive Order 
13211. FRA has determined that this NPRM is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this regulatory action is 
not a ``significant energy action'' within the meaning of Executive 
Order 13211.

H. Trade Impact

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et 
seq.) prohibits Federal agencies from engaging in any standards setting 
or related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Legitimate domestic objectives, such as 
safety, are not considered unnecessary obstacles. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    FRA has assessed the potential effect of this NPRM on foreign 
commerce and believes that its requirements are consistent with the 
Trade Agreements Act. The requirements imposed are safety standards, 
which, as noted, are not considered unnecessary obstacles to trade.

I. 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 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.

List of Subjects in 49 CFR Part 214

    Occupational safety and health, Penalties, Railroad safety.

The Proposed Rule

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

PART 214--[AMENDED]

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

    Authority:  49 U.S.C. 20102-20103, 20107, 21301-21302, 21304; 28 
U.S.C. 2461, note; and 49 CFR 1.49.

Subpart C--Roadway Worker Protection

    2. Section 214.315 is amended by revising paragraph (a) to read as 
follows:


Sec.  214.315  Supervision and communication.

    (a) When an employer assigns a duty to a roadway worker that calls 
for that employee to foul a track, the employer shall provide the 
employee with an on-track safety job briefing that, at a minimum, 
includes the following:
    (1) Information on the means by which on-track safety is to be 
provided for each track identified to be fouled;
    (2) Instruction on each on-track safety procedure to be followed;
    (3) Information about any adjacent tracks, on-track safety for such 
tracks, if required by this subpart or deemed necessary by the roadway 
worker in charge, and identification of any roadway maintenance 
machines that will foul such tracks; and
    (4) A discussion of the nature of the work to be performed and the 
characteristics of the work location to ensure compliance with this 
subpart.
* * * * *
    3. Section 214.335 is amended by removing paragraph (c) and 
revising the section heading to read as follows:


Sec.  214.335  On-track safety procedures for roadway work groups, 
general.

* * * * *
    4. New Sec.  214.336 is added to read as follows:


Sec.  214.336  Adjacent-controlled-track on-track safety procedures for 
certain roadway work groups.

    (a) Procedures; general. (1) Except as provided in paragraph (e) of 
this section, on-track safety is required for each adjacent controlled 
track when a roadway work group with at least one of the roadway 
workers on the ground is engaged in a common task with an on-track 
roadway maintenance machine or coupled equipment on an occupied track. 
The required on-track safety shall be established through working 
limits (Sec.  214.319) or train approach warning provided by watchmen/
lookouts (Sec.  214.329) and as more specifically described in this 
section.
    (2) If an occupied track has two adjacent controlled tracks, and 
one of these adjacent controlled tracks has one or more adjacent-
controlled-track movements authorized at 25 mph or less, and the other 
adjacent controlled track has one or more concurrent adjacent-
controlled-track movements authorized at over 25 mph, the more 
restrictive procedures in paragraph (b) of this section apply.
    (3) As used in this section--
    ``Adjacent controlled track'' means a controlled track whose track 
center is spaced 19 feet or less from the track center of the occupied 
track.
    ``Adjacent tracks'' means two or more tracks with track centers 
spaced less than 25 feet apart.
    ``Clear side'' means the field side of the occupied track that 
either has no adjacent track on that side or has an adjacent track or 
tracks on that side and working limits have been established in 
accordance with this subpart on the closest adjacent track on that side 
and there are no movements authorized through the working limits by the 
roadway worker in charge on that adjacent track.
    ``Occupied track'' means the track on which a roadway maintenance 
machine or coupled equipment is located while engaged in a common task 
with a roadway work group.
    (b) Procedures for adjacent-controlled-track movements over 25

[[Page 61654]]

mph. Except as provided in paragraph (e) of this section, if a train or 
other on-track equipment is authorized to move on an adjacent 
controlled track at a speed greater than 25 mph, each roadway work 
group to which this section applies must comply with the following 
procedures:
    (1) Ceasing work and occupying a place of safety. Each roadway 
worker in the roadway work group shall cease any on-ground work and 
movement of any roadway maintenance machine or coupled equipment in the 
fouling space of the occupied track and the adjacent controlled track, 
and occupy a predetermined place of safety upon receiving--
    (i) A notification in accordance with Sec.  214.319(c) indicating 
that the roadway worker in charge intends to authorize one or more 
train or other on-track equipment movements through the working limits 
on the adjacent controlled track, if adjacent-controlled-track on-track 
safety has been established through working limits alone; or
    (ii) A watchman/lookout warning, if on-track safety through train 
approach warning (Sec.  214.329) has been established on the adjacent 
controlled track either as the sole method of on-track safety or in 
addition to working limits.
    (2) Resuming work. (i) A component of a roadway work group may 
resume on-ground work and movement of any roadway maintenance machine 
or coupled equipment on or fouling the occupied track only after the 
trailing-end of all trains or other on-track equipment moving on the 
adjacent controlled track (for which a notification or warning has been 
received in accordance with paragraph (b)(1) of this section) has 
passed and remains ahead of that component of the roadway work group.
    (ii) If the train or other on-track equipment stops before its 
trailing-end has passed all of the roadway workers in the roadway work 
group, the work to be performed on or fouling the occupied track ahead 
of the trailing-end of the train or other on-track equipment on the 
adjacent controlled track may resume only--
    (A) If on-track safety through train approach warning (Sec.  
214.329) has been established on the adjacent controlled track; or
    (B) After the roadway worker in charge has communicated with the 
train engineer or equipment operator and established that further 
movements of such train or other on-track equipment shall be made only 
as permitted by the roadway worker in charge.
    (c) Procedures for adjacent-controlled-track movements 25 mph or 
less. If a train or other on-track equipment is authorized to move on 
an adjacent controlled track at a speed of 25 mph or less, each roadway 
work group to which this section applies must comply with the 
procedures listed in paragraph (b) of this section, except that work 
that is performed exclusively while positioned on or between the rails 
of the occupied track or on the clear side may continue, provided that 
any on-ground work is performed more than 25 feet in front of or behind 
any roadway maintenance machine on or fouling the occupied track during 
such adjacent-controlled-track movement.
    (d) Procedures for a roadway maintenance machine or coupled 
equipment fouling an adjacent controlled track. A roadway maintenance 
machine or coupled equipment shall not foul an adjacent controlled 
track unless working limits have been established on the adjacent 
controlled track and there are no movements authorized through the 
working limits by the roadway worker in charge.
    (e) Exceptions to the requirement for adjacent-controlled-track on-
track safety. The procedures for adjacent-controlled-track on-track 
safety in paragraphs (a) through (c) of this section do not apply to 
the following work activities:
    (1) One or more on-ground roadway workers performing work while 
exclusively positioned on the clear side of the occupied track.
    (2) A hi-rail vehicle on or fouling an occupied track while engaged 
in a common task with one or more roadway workers on the ground, 
provided that such hi-rail vehicle is not coupled to one or more 
railroad cars or operating on the same occupied track and within the 
working limits of a roadway work group as described in paragraph (a) of 
this section. In accordance with Sec.  214.315(a)(3), where multiple 
hi-rail vehicles are engaged in a common task, the on-track safety 
briefing shall include discussion of the nature of the work to be 
performed to determine if adjacent-controlled-track on-track safety is 
necessary.
    (3) A catenary maintenance tower car on or fouling an occupied 
track that is engaged in a common task with one or more roadway workers 
positioned on the ground within the gage of the occupied track for the 
sole purpose of applying or removing grounds, provided that such 
catenary maintenance tower car is not operating on the same occupied 
track and within the working limits of a roadway work group as 
described in paragraph (a) of this section.
    (f) Discretion of roadway worker in charge. Nothing in this subpart 
prohibits the roadway worker in charge from establishing on-track 
safety on one or more adjacent tracks as he or she deems necessary 
consistent with both the purpose and requirements of this subpart.

    Issued in Washington, DC, on November 16, 2009.
Karen J. Rae,
Deputy Administrator.
[FR Doc. E9-27974 Filed 11-24-09; 8:45 am]
BILLING CODE 4910-06-P