[Federal Register Volume 76, Number 230 (Wednesday, November 30, 2011)]
[Rules and Regulations]
[Pages 74586-74620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30250]



[[Page 74585]]

Vol. 76

Wednesday,

No. 230

November 30, 2011

Part III





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 214





Railroad Workplace Safety; Adjacent-Track On-Track Safety for Roadway 
Workers; Final Rule

  Federal Register / Vol. 76 , No. 230 / Wednesday, November 30, 2011 / 
Rules and Regulations  

[[Page 74586]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2008-0059, Notice No. 4]
RIN 2130-AB96


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

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

ACTION: Final rule.

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SUMMARY: FRA is amending its regulations on railroad workplace safety 
to further reduce the risk of serious injury or death to roadway 
workers performing work with potentially distracting equipment near 
certain adjacent tracks. In particular, this final rule requires that 
roadway workers comply with specified on-track safety procedures that 
railroads must adopt to protect those workers from the movement of 
trains or other on-track equipment on ``adjacent controlled track.'' 
FRA defines ``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 are 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 on-track, self-propelled equipment or coupled equipment on an 
occupied track. In addition, FRA is removing the provision on 
preemptive effect.

DATES: This final rule is effective May 1, 2012.

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: The NPRM issued as Notice No. 1 under this 
same docket number and published July 17, 2008, was withdrawn by Notice 
No. 2 published August 13, 2008. A second NPRM issued as Notice No. 3 
under this same docket number was published November 25, 2009. All 
references to ``the NPRM'' in this final rule are to this second NPRM 
unless otherwise specified.

Table of Contents

I. Executive Summary
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 (1997-2010)
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
    D. Response to Comments on the November 25, 2009 NPRM
    1. On-Ground Work Performed to the Clear Side
    2. Hi-Rail Vehicles and Clarification of ``Common Task''
    3. Rail-Bound Geometry or Detector Cars
    4. Continuous Barrier
    5. Requests for Additional Exceptions to, or Relief From, the 
Requirements of Proposed Sec.  214.336 or for a Narrowing of Its 
Scope
    a. Requested Exception Where There Is Only One Worker on the 
Ground
    b. Requested Revision of Proposed Sec.  214.336(c) To Permit 
Work by the Machine Operator Within the Areas 25 Feet in Front of 
and 25 Feet Behind Equipment During Low-Speed Movements on an 
Adjacent-Controlled-Track
    c. Requested Revision of Proposed Sec.  214.336(b)(2) to Permit 
a Roadway Work Group Component To Resume Work After the Head-End Has 
Passed the Component's Location
    d. Request To Raise the Threshold Speed in Sec.  214.336(b) and 
Sec.  214.336(c) From 25 MPH to 40 MPH for Passenger Trains
    6. Predetermined Place of Safety
    7. The Effect of the Proposed Rule on Dispatchers
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Order 12866 and 13563 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. Executive Summary

    As will be detailed in this final rule, 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'').\1\ 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 on-track, self-propelled 
equipment on an occupied track. These amendments to the Roadway Worker 
Protection Rule are based on the consensus language developed through 
the Roadway Worker Protection 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 existing regulation, FRA has concluded that moving 
forward with this final rule in advance of the other proposals 
contained in the RSAC consensus \2\ is necessary and appropriate.
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    \1\ The RWP rule was published on December 16, 1996, and became 
effective on January 15, 1997. See 61 FR 65959.
    \2\ 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 decided to propose the 
adjacent-track-related provisions in a separate NPRM (which led to 
the issuance of this final rule) so that an appropriate provision 
would 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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    As will be discussed in more detail in Section II.C, below, until 
this final rule's amendments to Sec.  214.335(c) become effective, the 
RWP Rule 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

[[Page 74587]]

train or equipment movements on adjacent tracks if the adjacent tracks 
are not already included within the working limits. Applying the 
definition of ``adjacent tracks'' to the criteria discussed above, on-
track safety is required for any tracks with track centers spaced less 
than 25 feet apart from the center of the track to which a roadway work 
group is assigned to perform ``large-scale maintenance or 
construction.'' 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.''
    Although FRA did provide some guidance on the term ``large-scale 
maintenance or construction'' in the preamble of the 1996 final rule, 
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 pieces of on-track, self-propelled 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. This final rule makes the 
conditions that trigger the requirement for adjacent-track on-track 
safety more objective.
    New Sec.  214.236 requires 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.'' An ``adjacent controlled track'' is ``a controlled track whose 
track center is spaced 19 feet or less from the track center of the 
occupied track.'' The ``occupied track'' is ``the track on which on-
track, self-propelled equipment or coupled equipment is authorized or 
permitted to be located while engaged in a common task with a roadway 
work group with at least one of the roadway workers on the ground.'' 
These on-track safety procedures are 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 on-
track, self-propelled equipment or coupled equipment on an occupied 
track.
    As a general rule, the procedures in paragraph (b) of new Sec.  
214.336 require all on-ground work and equipment movement on the 
occupied track to stop and each roadway worker to occupy a 
predetermined place of safety upon receiving a notification or warning 
that there is an authorized train or other on-track equipment movement 
on an adjacent controlled track. A roadway worker affected by such 
movement is permitted to resume work only after the trailing-end of the 
movement has passed such worker. As further described, below, the final 
rule provides a limited exception to the general rule in paragraph (c) 
of this section (i.e., by establishing different procedures to be used 
during low-speed movements on an adjacent controlled track than during 
higher-speed movements), and also establishes three categories of 
exceptions to the requirement to cease work in paragraphs (e)(1) 
through (e)(3) of this section. See Sec. Sec.  214.336(c) and 
214.336(e)(1) through (3).
    Due to the lower risk associated with adjacent-controlled-track 
movements at low speeds (25 mph or less), certain work is permitted to 
continue after receiving a notification or warning of such a movement 
on an adjacent controlled track. The work permitted to continue is (1) 
equipment movement on the rails of the occupied track, and (2) on-
ground work performed exclusively between the rails of the occupied 
track, provided that no on-ground work is performed within the areas 25 
feet in front of and 25 feet behind any on-track, self-propelled 
equipment or coupled equipment permitted to move on the occupied track. 
See Sec.  214.336(c).
    There are three categories of exceptions to the requirement to 
cease work. See Sec.  214.336(e)(1) through (3). The first two (``On-
ground work performed on a side of the occupied track meeting specified 
condition(s)'' and ``Maintenance or repairs performed alongside 
machines or equipment on the occupied track'') permit work to continue 
if performed on a side of the occupied track where there should 
essentially be no danger posed by equipment movement on an adjacent 
track. See Sec.  214.336(e)(1)(i) through (iii), regarding the side 
with no adjacent track, the side with working limits and no movements 
permitted within such working limits, and the side with an inter-track 
barrier. The third type of exception permits work to continue if it 
involves certain types of equipment (i.e., hi-rail vehicles, automated 
inspection cars, and catenary maintenance tower cars) used for certain 
purposes (e.g., inspection or minor correction purposes) that, as 
indicated by the fatality data, do not present a significant level of 
distraction. See Sec.  214.336(e)(3)(i) through (iii). To help roadway 
workers and the regulated community at large better understand the 
exceptions and the interrelation of the various requirements of the 
sections, Table 1 in the rule text summarizes how the procedures apply 
to different factual scenarios. The diagrams (Figure 1) that follow 
Table 1 correspond to the same examples in the table, and help the 
reader to visualize the factual scenarios.
    Given the importance of an on-track safety job briefing in roadway 
workers' understanding of the nature of the work that they will be 
conducting and the conditions under which they will conduct it, FRA has 
expanded the on-track safety job briefing requirements to cover the new 
procedures for adjacent-track on-track safety in Sec.  214.336 (if 
applicable) and a discussion of adjacent tracks (if any), generally.
    In addition, FRA is removing the provision on preemptive effect. 
This section was prescribed in 1996 and has become outdated and, 
therefore, misleading because it does not reflect post-1996 amendments 
to 49 U.S.C. 20106. FRA now believes that the section is unnecessary 
because 49 U.S.C. 20106 sufficiently addresses the preemptive effect of 
part 214.
    This final rule will impose costs that are likely outweighed by the 
quantified safety benefits. For the 20-year period analyzed, the 
estimated quantified cost that will be imposed on industry totals 
$285.7 million (undiscounted) with a present value (PV) (7 percent) of 
$151.4 million, and a PV (3 percent) of $212.6 million. For the same 
20-year period, the estimated quantified benefits total $286.2 million 
(undiscounted), with a PV (7 percent) of approximately $151.6 million 
and a PV (3 percent) of $212.9 million. The costs will 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 will 
also accrue. The benefits will primarily accrue from a reduction in 
roadway worker casualties (fatalities and injuries). This analysis 
estimates that there will be 10.3 fewer roadway worker fatalities over 
the next 20 years. In addition, it estimates that this final rule will 
reduce roadway worker injuries by 182 over the next 20 years. Business 
benefits stemming from avoided train delays and property damages, as 
well as benefits from reduced safety stand downs \3\ resulting from 
roadway worker

[[Page 74588]]

fatalities will also accrue. FRA finds that the estimated quantified 
benefits will exceed the estimated quantified costs.
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    \3\ Currently, when a railroad experiences a roadway worker 
fatality, the railroad leadership holds a ``safety stand down,'' 
during which all scheduled maintenance work is postponed so that the 
railroad managers and employees are able to discuss the accident and 
reinforce pertinent safety practices, oftentimes through refresher 
training. A discussion of the cost savings that result from reduced 
safety stand downs is found in Section 10.8 of the Regulatory Impact 
Analysis (RIA).
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    The following table presents the quantified costs broken down by 
section of the RIA and by section of the rule:

------------------------------------------------------------------------
                                                  PV Rate,     PV Rate,
         Estimated cost of final rule               3%*          7%*
------------------------------------------------------------------------
9.2 Job Briefings--Sec.   214.315.............        $1.94        $1.38
9.4 On-Track Safety--Sec.   214.336...........       207.60       147.83
9.4 Other (Signalmen, Lone Workers)--Sec.              2.76         1.97
 Sec.   214.315/336...........................
9.4 Training--Sec.   214.336..................         0.25         0.18
                                               -------------------------
    Total.....................................       212.55       151.36
------------------------------------------------------------------------
* Dollars are in millions and are discounted over a 20-year period.

    The table below presents the estimated benefits associated with 
this final rule by section of the RIA and by benefit category:

------------------------------------------------------------------------
                                                  PV Rate,     PV Rate,
       Estimated benefits of final rule             3%*          7%*
------------------------------------------------------------------------
10.1 Casualty Mitigation (Sec.   214.336)--          $43.72       $31.13
 Fatality (Struck by Train)...................
10.2 Casualty Mitigation (Sec.   214.336)--           71.62        51.00
 Injury (Struck by Train).....................
10.3 Casualty Mitigation (Sec.   214.336)--           15.30        10.90
 Injury (Struck by Object Other Than Train)...
10.4 Adjacent Track Revision..................         9.79         6.97
10.5 Damage Reduction.........................         0.89         0.64
10.6 Reporting/Recordkeeping--Cost Savings....         0.02         0.01
10.7 Business Industry Benefit................        46.71        33.26
10.8 Reduction in Safety Stand Downs..........        19.98        14.23
10.9 Job Briefing Fatality Prevention (Sec.            3.69         2.63
 214.315).....................................
10.9 Job Briefing Injury Prevention (Sec.              1.16         0.83
 214.315).....................................
                                               -------------------------
    Total.....................................       212.88       151.59
------------------------------------------------------------------------
* Dollars are in millions and are discounted over a 20-year period.

II. Overview of the Existing Roadway Worker Protection (RWP) Rule

A. Applicability and Basic Definitions

    As background, since the RWP Rule \4\ became effective in 1997, it 
has imposed certain safety requirements. In particular, 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).\5\ ``On-track safety'' is defined in the RWP Rule 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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    \4\ The RWP rule was published in the Federal Register on 
December 16, 1996 (61 FR 65959), and became effective on January 15, 
1997.
    \5\ 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-
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/

[[Page 74589]]

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 discussed in detail with the roadway work group, 
prior to the change occurring, in an updated on-track safety job 
briefing pursuant to Sec.  214.315(d).

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

    Until the amendments to Sec.  214.335(c) become effective, the 
provision of the 1996 RWP Rule 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 and 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 are 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 existing 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.  214.335(c) (61 FR 
65976) and Sec.  214.337(a).
    Although the term ``large-scale maintenance or construction'' is 
not specifically defined in the 1996 regulation, FRA noted in the 
preamble to the 1996 final rule establishing the 1996 RWP Rule that the 
principle behind the reference to large-scale maintenance or 
construction was ``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 
[were] significant'' required measures to provide on-track safety on 
adjacent tracks. See 61 FR 65971. To further clarify what is meant by 
the term ``large-scale maintenance or construction,'' FRA referenced 
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 (e.g., 
because these were often single-task operations, rather than the 
multiple-task operations typical of production units), still included 
one or more pieces of on-track, self-propelled 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 positioned outside of the rails of such a track on a side of the 
track that has 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 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

[[Page 74590]]

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 (1997-2010)

    In the more than thirteen 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 on-track, self-propelled 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.'' \6\ 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 vehicle 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 proposed that adjacent-track 
on-track safety not be required for roadway work groups engaged in a 
common task with a hi-rail vehicle or a catenary maintenance tower car, 
as discussed in the section-by-section analysis of paragraphs (b)(2) 
and (3), respectively, in new Sec.  214.336.
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    \6\ In that case (which occurred on March 28, 2002, in 
Langhorne, PA), the roadway workers were under the impression that 
adjacent-track on-track safety was in effect, but it was not, due to 
a miscommunication.
---------------------------------------------------------------------------

    Of the seven fatalities that occurred under the circumstances 
described above and which this final rule is intended to address, three 
occurred during the period after the effective date of the 1996 RWP 
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 continues to lead 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 safety, but this 
on-track safety 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 on-track, self-propelled 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 adjacent track since the rule 
went into effect, as these circumstances were considered by FRA in its 
decision to issue the NPRM and this final rule. 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 and final definition 
of ``adjacent controlled track,'' which has

[[Page 74591]]

been included in 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 and final definition of 
``adjacent controlled track,'' which would have a narrower 
applicability for purposes of proposed and final 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 rulemaking to address adjacent-track on-track safety 
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;
     The Chlorine Institute, Inc.;
     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;*
     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;*

[[Page 74592]]

     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), The Kansas City Southern Railway Company 
(KCS), Norfolk Southern Corporation railroads (NS), and Union Pacific 
Railroad Company (UP);
     Belt Railroad of Chicago;
     BLET;
     BMWED;
     BRS;
     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

    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 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--

[[Page 74593]]

``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 \7\ 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.
---------------------------------------------------------------------------

    \7\ As noted in Section I of this preamble, the provisions 
related to on-track safety for certain adjacent tracks were 
originally intended to be published as part of a larger NPRM 
concerning part 214, but were proposed as a separate NPRM (which led 
to the issuance of this final rule) 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 was expected to reduce the risk of roadway 
worker fatalities due to fouling an adjacent track while working in 
conjunction with on-track, self-propelled equipment or coupled 
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 to the Working Group 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 decided to revisit the 
issues and language of the withdrawn NPRM in light of the comments 
received, formal and informal (i.e., phone calls and emails), and issue 
a revised NPRM, which was published on November 25, 2009 (74 FR 61633). 
In accordance with DOT's policy (Order No. 2100.2 (1970)), all 
communications (including informal phone calls and 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 posted them to the 
docket, since they were still taken into consideration in drafting the 
NPRM and this final rule. A summary of the comments on the July 17, 
2008 NPRM and FRA's response to those comments appears in the preamble 
to the November 25, 2009 NPRM, and therefore is not repeated in the 
preamble to this final rule unless it is necessary to discussion of a 
pending issue.
    A summary of the comments on the November 25, 2009 NPRM and any 
pertinent earlier comments and FRA's response to those comments follows 
in Section VI.D, below. However, there is one issue that was raised by 
AAR in its comments on the July 17, 2008 NPRM that merits further 
discussion in this section, namely the effective date of the rule. In 
its comments, AAR had urged FRA to make the effective date for training 
on the new requirements consistent with the railroads' training 
schedules. Specifically, AAR indicated that if a rule were published 
before October 1st of a calendar year, then training could be completed 
by July 1st of the next calendar year. In support of this recommended 
effective date, AAR explained that most employees are trained during 
the first six months of each year, many during the first quarter, when 
there is typically less demand for railroad services. AAR further noted 
that railroads spend considerable resources to ensure that their 
training materials are comprehensive and effective, and that training 
outside the normal training cycle could be counterproductive and could 
potentially lead to errors in implementation, as the trainers may have 
a more difficult time effectively conveying the information. The BMWED 
and BRS comments on the July 17, 2008 NPRM, though not expressly 
commenting on a particular effective date, expressed concern that the 
separate training and recordkeeping requirements proposed in Sec.  
214.336(c) would have shifted the burden for effective training from 
the employer to the employees, and would have infringed on the 
employees' right to quality, employer-provided training. FRA had 
proposed these separate training and recordkeeping requirements to 
serve as a stop-gap measure until the time of the employee's recurrent 
training pursuant to Sec.  214.343(d). However, given the complexity of 
new Sec.  214.336, FRA agrees that it would be best to allow the 
railroads additional time to create comprehensive and helpful training 
materials and to train their employees during the normal training 
cycle. As a result, FRA has decided to make the rule effective on May 
1, 2012. This should help ensure uniformity and quality of training. 
Until this final rule becomes effective, FRA strongly encourages 
railroads and contractors to take measures to increase awareness on

[[Page 74594]]

the issue of the dangers posed by adjacent tracks, such as making it a 
topic of discussion at safety meetings or enhancing their on-track 
safety job briefings to include information about any adjacent tracks, 
on-track safety for such tracks, and identification of any roadway 
maintenance machines that will foul such tracks.

D. Response to Comments on the November 25, 2009 NPRM

    FRA received four comments on the November 25, 2009 NPRM. Comments 
were submitted by a variety of affected parties, namely, BMWED and BRS 
(joint comments), AAR, APTA, and ATDA. FRA has extensively reviewed and 
evaluated the comments. In this section, FRA has responded to the 
comments regarding the following issues:
    (1) On-ground work performed to the clear side;
    (2) Hi-rail vehicles and clarification of ``common task'';
    (3) Rail-bound geometry or detector cars;
    (4) Continuous barrier;
    (5) Requests for additional exceptions to, or relief from, the 
requirements of proposed Sec.  214.336 or for a narrowing of its scope;
    (6) Predetermined place of safety; and
    (7) The effect of the proposed rule on dispatchers.

FRA has responded to some of the smaller concerns within the Section-
by-Section Analysis at Section VII of this preamble.
1. On-Ground Work Performed to the Clear Side
    BMWED and BRS raised several issues in their joint comments on the 
NPRM. First and foremost, however, was their concern with the concept 
and definition of the term ``clear side,'' which they believed was an 
``unproven and novel concept'' that had not been discussed in the RSAC 
and the Working Group, and that was a ``dangerous surrogate for the 
consensus language defining `Field Side' within the body of the text 
adopted by the Working Group in 214.335(c)(3).'' In the NPRM, FRA had 
proposed the term ``clear side'' as a shorthand to describe the side on 
which there should essentially be no danger posed by any other adjacent 
track, for purposes of the exception in paragraph (e)(1) of proposed 
Sec.  214.336 for ``[o]ne or more on-ground roadway workers performing 
work while exclusively positioned on the clear side of the occupied 
track.'' In particular, FRA noted that, assuming compliance with the 
proposed rule, there would be no danger posed by any other adjacent 
track either because there is no adjacent track on that particular side 
of the occupied track or, even though there is an adjacent track on 
that side of the occupied track, working limits have been established 
in accordance with this subpart on the closest adjacent track on that 
side and, therefore, there are no movements authorized through the 
working limits on that adjacent track.
    This proposed exception was based on paragraph (e)(2) of the 
consensus language, which read ``[o]n-ground roadway workers 
exclusively performing work on the field side of the occupied track.'' 
As discussed at length in the preamble of the NPRM (see 74 FR 61640), 
FRA believed that this language was broader than the consensus language 
in consensus paragraph (c)(3), which would have permitted work to 
continue ``to the field side of the occupied track with no adjacent 
track'' during a low-speed movement on an adjacent controlled track on 
the opposite side of the occupied track. Additionally, FRA noted that 
there were two field sides to each occupied track, beginning at each 
rail and continuing outward and away from the track center of the 
occupied track. However, in their joint comments on the NPRM, BMWED and 
BRS expressed their beliefs that the term ``field side'' was clear, and 
that each right-of-way (rather than each track) has only two field 
sides (i.e., the outermost extremes of the right-of-way). It was their 
opinion that FRA was mistaken in its conclusion that there was a 
conflict between consensus paragraphs (c)(3) and (e)(2) because the 
term ``field side'' in (e)(2) clearly referred to the side of the 
occupied track that had no adjacent track on that side; without such a 
conflict, they believed there was no need to introduce the term ``clear 
side.''
    FRA notes that the term ``field side'' is used by roadway workers 
inspecting track to indicate on which side of a rail a bolt was 
replaced (e.g., field side vs. gage side), regardless of whether the 
track is in single-track territory or multiple-track territory. Given 
this use of the term and BMWED's and BRS' view that the term has been 
used differently in the common parlance of roadway workers, it is 
evident that the term ``field side'' was understood by different people 
to mean different things. FRA has considered this fact as well as the 
comments raised concerning the safety of permitting work to continue on 
a side of the occupied track that had an adjacent track.
    FRA had originally proposed in the July 17, 2008 NPRM (later 
withdrawn) that work would be permitted to continue on that side as 
long as on-track safety (including train approach warning) had been 
established on that side. In response to the concerns raised by BMWED 
and BRS that it would be unsafe to permit work on that side if working 
limits are not specifically required on any adjacent track on that side 
(with no movements permitted through such limits), FRA adjusted its 
proposal in the November 25, 2009 NPRM so as to better ensure the 
safety of the workers on that side of the occupied track. See 74 FR 
61640.
    In this final rule, FRA has considered the additional comments 
received from BMWED and BRS on the proposed section, particularly on 
the use of the term ``clear side'' and ``field side'' and has removed 
both terms to eliminate any confusion. However, FRA still believes that 
it is safe to work on the side of an occupied track with working limits 
on the closest adjacent track on that side and no movements within such 
limits on that side, and that establishing the near running rail as a 
demarcation point is a ``bright line'' approach that will make it 
easier both for roadway workers and the regulated community at large to 
follow and for FRA to enforce. Thus, this final rule permits work while 
exclusively positioned on the side of the occupied track with one or 
more adjacent tracks, the closest of which has working limits on it and 
no movements permitted within such working limits by the roadway worker 
in charge. See Sec.  214.336(e)(1)(ii) of the final rule.
2. Hi-Rail Vehicles and Clarification of ``Common Task''
    In response to the exception proposed for hi-rail vehicles in the 
NPRM in paragraph (e)(2) of Sec.  214.336, FRA received comments from 
BMWED and BRS indicating that the exception was written too broadly and 
should be amended so as to limit it to only those hi-rail vehicles 
being used for inspection or minor correction purposes. These 
commenters submitted that this was the intent of the consensus 
language, and that failing to impose this limitation would permit work 
to be performed by hi-rail vehicles that was equally as distracting 
(such as a thermite welding crew working out of the back of a large hi-
rail vehicle work platform) as that performed by other types of on-
track, self-propelled equipment or coupled equipment subject to the 
requirements of this section.
    AAR requested clarification of the exception for hi-rail vehicles, 
noting that the language limiting the exception for hi-rail vehicles 
(i.e., to those that are not operating on the same occupied track and 
within the limits of a roadway

[[Page 74595]]

work group as described in Sec.  214.336(a)) should be modified so as 
to exclude from the exception only those hi-rail vehicles working on 
the occupied track within 300 feet in front of or behind any roadway 
maintenance machine of a roadway work group. AAR noted that there are 
circumstances where the working limits could extend between two control 
points for several miles, and that the hi-rail vehicle may be operated 
a considerable distance away from the roadway work group, but within 
the control points.
    APTA raised a similar concern regarding the roadway workers' 
proximity to the on-track, self-propelled equipment, noting that 
proposed Sec.  214.336 would require adjacent-track on-track safety for 
workers in a tie gang applying rail anchors on an occupied track where 
no power tools or roadway maintenance machines are in use within their 
hearing, and for an on-ground worker taking rail profile measurements 
behind a rail grinder. Because the fatalities recounted in the NPRM all 
suggest proximity to the on-track equipment as a defining factor, APTA 
suggested that FRA should narrowly define the phrase ``common task'' so 
as to exclude from the limitations of Sec.  214.336(a) workers who are 
not in proximity to the on-track equipment and whose ability to see and 
hear approaching trains or other equipment on adjacent tracks is not 
limited by noise, lights, or other conditions.
    FRA agrees with BMWED and BRS that the language in the NPRM would 
have permitted work to be performed by hi-rail vehicles that was 
equally as distracting, and thus has adopted BMWED's and BRS' 
suggestion in the final rule. See Sec.  214.336(e)(3)(i). As explained 
in detail in the Section-by-Section Analysis at Section VII of this 
preamble, FRA has added a definition of the term ``minor correction 
purposes'' to paragraph (a)(3) of this section for additional clarity.
    Additionally, in response to the concern raised by AAR (and a 
similar concern raised by APTA) that a hi-rail vehicle that is operated 
within the same working limits but a considerable distance away from 
the distractions of the roadway work group would not qualify for the 
exception, FRA has added language to permit the hi-rail vehicle 
exception to apply in this situation if both of the following 
conditions are met. The first is that the roadway worker in charge of 
the working limits has conducted an on-track safety job briefing with 
the principal (``non-excepted'') roadway work group and the entering 
(``excepted'') roadway work group and determined that adjacent-
controlled-track on-track safety is not necessary for the entering 
``excepted group'' (i.e., a group that would otherwise qualify for one 
of the exceptions in paragraph (e)(3)).
    The second condition that would need to be met in order to permit 
the hi-rail vehicle exception to still apply in the above scenario is 
that the entering group is not working in such proximity to the 
principal (``non-excepted'') group so that the ability of a roadway 
worker in the entering (``excepted'') group to hear or see approaching 
trains and other on-track equipment is impaired by background noise, 
lights, sight obstructions or any other physical conditions caused by 
the equipment of the principal group. FRA notes that this additional 
language was based in part on the existing on-track safety procedures 
for lone workers, and that the selected language would be enforced in a 
similar manner. See Sec.  214.337(c)(6). Additionally, in recognition 
that, under the reverse scenario, the principal group could be the 
``excepted group'' and the entering group could be the ``non-excepted 
group,'' FRA has written the language in such a manner so as to apply 
to both scenarios.
    While the above approach is similar to what APTA suggested in its 
comments, FRA has decided not to apply this approach to any members of 
a roadway work group that includes equipment that triggers the 
requirements of Sec.  214.336 and that is not subject to an exception, 
regardless of whether the individual roadway workers are in proximity 
of such equipment. FRA notes that unless those individual roadway 
workers comprise an entirely separate roadway work group with its own 
roadway worker in charge, it is safer to provide uniformity in 
procedures for the work group as a whole. This approach, as applied to 
an entering group, is also safer than AAR's suggestion that FRA permit 
the exception to apply to hi-rail vehicles that are at least 300 feet 
away from any roadway maintenance machine in the principal roadway work 
group, because it will capture distractions that impair the abilities 
of roadway workers from further than 300 feet away, due to factors such 
as the size of the on-track, self-propelled equipment or coupled 
equipment, and the amount of noise or dust generated by such equipment.
    Because the concept of a ``common task'' is at the core of 
determining whether roadway workers are part of the same work group,\8\ 
and thus subject to the same adjacent-controlled-track on-track safety 
procedures per the triggering language in paragraph (a), FRA believes 
that it is important to provide clarification as to this concept. While 
the term ``common task'' is not defined in part 214, FRA has provided 
guidance in the preamble to the 1996 RWP Rule concerning the term in 
the context of a ``lone worker'' who, by definition, is not engaged in 
a common task with another roadway worker. See Sec.  214.7. This 
guidance may also be helpful in understanding the use of the term 
``common task'' in the context of the new Sec.  214.336. The preamble 
provides the following:
---------------------------------------------------------------------------

    \8\ A ``roadway work group'' is defined in Sec.  214.7 as ``two 
or more roadway workers organized to work together on a common 
task.''

    Generally, a common task is one in which two or more roadway 
workers must coordinate and cooperate in order to accomplish the 
objective. Other considerations are whether the roadway workers are 
under one supervisor at the worksite; or whether the work of each 
roadway worker contributes to a single objective or result.
    For instance, a foreman and five trackmen engaged in replacing a 
turnout would be engaged in a common task. A signal maintainer 
assigned to adjust the switch and replace wire connections in the 
same turnout at the same time as the track workers would be 
considered a member of the work group for the purposes of on-track 
safety. On the other hand, a bridge inspector working on the deck of 
a bridge while a signal maintainer happens to be replacing a signal 
lens on a nearby signal would not constitute a roadway work group 
just by virtue of their proximity. FRA does not intend that a common 
task may be subdivided into individual tasks to avoid the use of on-
track safety procedures required for roadway work groups.

61 FR 65965-66.

3. Rail-Bound Geometry or Detector Cars
    In the NPRM, FRA had sought comment regarding whether the hi-rail 
vehicle exception should be expanded to include rail-bound geometry and 
detection equipment. See 74 FR 61641, 61648. As discussed in the NPRM, 
AAR had requested that the exception for hi-rail vehicles be expanded 
to include rail-bound geometry and detection equipment, since the level 
of distraction posed by this equipment is similar to that posed by hi-
rail vehicles. AAR suggested that FRA expand the hi-rail vehicle 
exception by adding ``or self-propelled track geometry or detector 
car'' after ``a hi-rail vehicle.'' In seeking comments, FRA noted that 
``it seems that the level of distraction is similar for a roadway 
worker on the ground who is field-verifying a measurement behind a

[[Page 74596]]

geometry car and a roadway worker on the ground who is replacing a bolt 
behind a hi-rail.'' 74 FR 61641.
    BMWED and BRS responded that they believed that the distractions 
are dissimilar, in that the detector cars are larger (reducing 
visibility) and much louder than a hi-rail pickup, and could therefore 
reduce a person's ability to detect the approach of a train. 
Additionally, they noted that there are other roadway maintenance 
machines performing a common task with such detection equipment that 
will also be at risk. In contrast, APTA expressed support for expanding 
the hi-rail vehicle exception to self-propelled detector (and 
``inspection-type'') cars, noting its belief that roadway workers 
engaged in a common task with self-propelled detector cars are 
performing work under the same circumstances as those engaged in a 
common task with hi-rail vehicles, and thus, should be granted the same 
exemption.
    FRA has decided to adopt this exception in this final rule because 
the level of distraction posed by the task of inspecting or performing 
minor correction is the same. Additionally, FRA has considered that 
inspection or minor correction work performed by a roadway work group 
with this type of equipment would clearly not have triggered the 
requirement for adjacent-track on-track safety under existing Sec.  
214.335(c) (as this would not have been considered ``large scale 
maintenance or construction'').
4. Continuous Barrier
    FRA requested comment in the NPRM as to whether a new exception 
should be added for locations where there is a physical barrier, such 
as a fence, between the occupied track and the adjacent track 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 at 
least 32'' in height) between the occupied track and the adjacent 
controlled track. 74 FR 61642, 61648. FRA received three comments from 
interested parties on this issue.
    BMWED and BRS opposed a new exception for fences, etc., due to 
concerns that the fence and/or concrete barriers would not necessarily 
encompass the entire work environment of one or more roadway work 
groups, and would not prevent inadvertent fouling of the adjacent 
controlled track by roadway maintenance machines. The commenters noted 
in closing that if, however, FRA is inclined to grant this new 
exception, then FRA must establish clearly-prescribed minimum criteria 
for such a barrier, including that it be permanently-installed and 
continuous, of sufficient strength, without voids, openings, or defects 
and at least four feet in height, and FRA must require that all roadway 
workers are positioned or performing work ``exclusively within the 
confines'' of the barrier. The commenters believed that a minimum 
height requirement of four feet would be reasonable and necessary to 
prevent a roadway worker who stumbles from going over the top of a 
shorter barrier and landing in the foul of a live adjacent controlled 
track.
    AAR suggested that an exception be added for ``[w]ork on an 
occupied track where there is a physical barrier between the occupied 
track and the adjacent track of sufficient height to prevent the worker 
from stepping over the barrier.'' APTA also supported the creation of 
an exception for locations that have permanent or semi-permanent 
barriers between the occupied and adjacent tracks, and noted that FRA 
should not be concerned about the use of plastic fencing for this 
purposes, as it has been used effectively in many passenger rail 
applications where short-term work is performed in multiple-track and 
shared-corridor alignments. APTA submitted that the plastic fencing is 
highly visible to workers on the ground and train operators alike, and 
its dielectric properties make it a preferred option in situations 
where work is performed near third rail or catenary power sources.
    Having considered these comments and reviewed the fatality data, 
FRA has determined that it is safe to perform work on a side of the 
occupied track that has an inter-track barrier between it and the 
closest adjacent track on that side, provided that the inter-track 
barrier meets minimum requirements to ensure that it is sturdy enough 
to prevent a roadway worker from fouling the adjacent track. As a 
result, FRA has adopted a new exception for such inter-track barriers. 
See Sec.  214.336(e)(1)(iii). FRA has incorporated several of the 
suggestions from the comments received and defined the term ``inter-
track barrier'' to mean ``a continuous barrier of a permanent or semi-
permanent nature that spans the entire work area, that is at least four 
feet in height, and that is of sufficient strength to prevent a roadway 
worker from fouling the adjacent track.'' See Sec.  214.336(a)(3) 
(``inter-track barrier''). Further, FRA believes that this exception, 
as a practical matter, will be used primarily in commuter territories 
that already have permanent, sturdy chain-linked fences in place, often 
to prevent passengers from crossing the tracks. Most other semi-
permanent barriers, such as concrete extra-tall jersey barriers (since 
standard jersey barriers are less than four feet in height), would be 
labor intensive to set up for a short work project. Regarding the use 
of plastic fencing, FRA notes that those fences are not typically 
permanently or semi-permanently installed, and FRA is also concerned 
that this material may be easily defeated by vandals with a pocket 
knife, thereby weakening the plastic fencing or leaving gaps in it 
through which a roadway worker could fall. As a result, FRA does not 
consider plastic fencing as an acceptable ``inter-track barrier'' for 
purposes of this section.
    Finally, in order to address BMWED's concern that the inter-track 
barrier would not prevent inadvertent fouling of the adjacent 
controlled track by roadway maintenance machines, FRA has added 
clarifying language to the introductory text in paragraph (e) that 
cross-references the requirements in paragraph (f), concerning 
components of roadway maintenance machines fouling an adjacent 
controlled track. This language is intended to reiterate that, the 
exception in paragraph (e)(1)(iii) exempts the roadway workers from the 
procedures in paragraphs (a), (b), and (c) only; they must still follow 
the procedures in paragraph (f), which generally provides that 
components of roadway maintenance machines shall not foul an adjacent 
controlled track unless working limits have been established on the 
adjacent controlled track and there are no movements permitted within 
the working limits by the roadway worker in charge that would affect 
the roadway worker operating such machine.
5. Requests for Additional Exceptions to, or Relief From, the 
Requirements of Proposed Sec.  214.336 or for a Narrowing of Its Scope
    FRA received several comments requesting additional exceptions to, 
or relief from, the requirements of proposed Sec.  214.336 or for a 
narrowing of its scope. Three of the requests were made by AAR, and the 
other two were made by APTA. Each request or set of similar requests is 
described and then addressed.
a. Requested Exception Where There Is Only One Worker on the Ground
    AAR commented that FRA had disagreed with its draft comments on the 
withdrawn NPRM that FRA's proposal to apply adjacent-track protection 
requirements where there is only one worker on the ground is contrary 
to the intent of the Working

[[Page 74597]]

Group. AAR indicated that, even assuming FRA is correct, adjacent-track 
protection is not required when activities are performed between the 
rails of the occupied track or on the clear side, since employees 
undertaking such activities are not in danger from trains passing on 
adjacent track. AAR submitted that adjacent-track on-track safety 
serves no purpose for employees checking track characteristics (e.g., 
cross level, gage, or profile), a machine operator re-supplying a 
machine with materials, a mechanic repairing a machine, or where a 
machine is just being fueled. AAR further stated that the last three 
activities described above do not even constitute roadway work, thus 
the proposed adjacent-track protection requirements would not apply. 
Accordingly, AAR proposed that FRA add an additional exception to 
proposed Sec.  214.336(e) for ``a single employee performing work 
exclusively between the rails of the occupied track.'' AAR noted that 
it would not be opposed to limiting the exception by requiring that the 
employee must first communicate with the operator of the roadway 
machine.
    Regarding AAR's request that FRA add an additional exception to 
proposed Sec.  214.336(e) for ``a single employee performing work 
exclusively between the rails of the occupied track,'' FRA again notes, 
as it did in the NPRM, that an analysis of the agency's accident 
investigations of these types of incidents revealed that four of the 
seven fatalities that involved a roadway work group engaged in a common 
task with on-track, self-propelled equipment on an adjacent track 
occurred with only one of the roadway workers on the ground. 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 consisted of only two roadway workers. 
Further, FRA notes that a lot of the work performed in a common task 
with on-track, self-propelled equipment or coupled equipment, other 
than hi-rail vehicles and automated rail inspection cars being used for 
inspection or minor correction and catenary maintenance tower cars, 
does not lend itself to being performed within the gage of the track 
without breaking the plane of the rails. Additionally, the exception in 
Sec.  214.336(e)(2) would permit a roadway worker to refuel a machine, 
provided that he or she is positioned on a side of the occupied track 
meeting specified conditions, with the machine effectively preventing 
the roadway worker from fouling the adjacent controlled track on the 
other side of such machine.
    Additionally, FRA wants to make explicit that it disagrees with 
AAR's characterization of a machine operator re-supplying a machine 
with materials, a mechanic repairing a machine, or a machine being 
fueled as not constituting work subject to the RWP rules (or ``roadway 
work,'' as used in AAR's comments). The first activity is ``roadway 
work'' because the gathering or distribution of materials necessary to 
the performance of track maintenance duties is part of those duties, 
and the last activities are maintenance of roadway maintenance 
machinery. See Sec.  214.7 (definition of ``roadway worker''). FRA also 
disagrees with AAR's characterization that adjacent-track on-track 
safety is not required when activities are performed between the rails 
of the occupied track, since employees undertaking such activities are 
not in danger from trains passing on adjacent track. Both the NPRM and 
final rule versions of paragraph (b) clearly require (or would have 
required) work to cease between the rails of the occupied track during 
adjacent-controlled-track movements authorized or permitted at speeds 
over 25 mph. FRA also notes that a train passing by at a speed over 25 
mph presents a higher risk of injury to roadway workers from abnormal 
consist conditions or track construction/maintenance materials that may 
become airborne while the train passes the roadway workers.
b. Requested Revision of Proposed Sec.  214.336(c) To Permit Work by 
the Machine Operator Within the Areas 25 Feet in Front of and 25 Feet 
Behind Equipment During Low-Speed Movements on an Adjacent Controlled 
Track
    In its draft comments on the withdrawn NPRM, AAR had 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 was operating, during adjacent-controlled-track 
movements of 25 mph or less. AAR noted it would be impractical not to 
allow the operator to step off of his machine and walk directly behind 
it. Accordingly, AAR suggested that the proposed paragraph Sec.  
214.336(a)(2)(i) in the withdrawn NPRM (and later proposed as Sec.  
214.336(c) in the NPRM) be amended by adding after the word 
``movement'' the phrase ``unless the employee is operating the 
machine.'' FRA noted its belief (without agreeing to the concept as a 
whole, contrary to what was suggested by AAR's comments on the NPRM) 
that the phrase ``unless the employee is the assigned operator of the 
machine'' would have better addressed 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 sought comment as to whether 
this amendment should be added.
    AAR commented that it supported the revised language suggested by 
FRA, with one slight modification in order to address a situation where 
two workers, such as an operator and a helper, are assigned to a 
machine. Thus, AAR suggested that FRA add the following language to 
paragraph (c), ``unless the employees are the assigned operators of the 
machines.''
    BMWED and BRS submitted comments indicating that they are opposed 
to amending proposed Sec.  214.336(c) by adding after the word 
``movement'' the phrase ``unless the employee is the assigned operator 
of the machine.'' The risk from adjacent track movements associated 
with working on the occupied track within 25 feet to the front or rear 
of a roadway maintenance machine is not reduced simply because the 
roadway worker happens to be the ``assigned operator.'' The noise of 
the machine, the reduced visibility, and the distraction of performing 
work within 25 feet to the front or rear of the machine is the same for 
all roadway workers, regardless of whether or not the person is the 
assigned operator.
    While FRA believes that the intent of this provision is mainly to 
prevent roadway workers from being struck by the machines or equipment, 
and generally agrees that if the machine is not being operated the main 
danger would be prevented; FRA does not believe that the danger would 
be adequately addressed if there is more than one assigned operator to 
a machine, as AAR stated is often the case. This presents a dangerous 
situation where one of the operators of a machine would be permitted to 
begin to operate a machine without first having to provide notice to 
the other operator(s), who would be permitted to work within the 25-
foot areas in front of and behind the machine, and could potentially be 
positioned in a blind spot. Additionally, even if only one operator 
were permitted, if a roadway worker observed the operator in the 25-
foot area and thought that because the machine was off or in idle it 
was safe to approach the machine within 25 feet and he positioned 
himself in a blind

[[Page 74598]]

spot, that roadway worker may be injured if the operator started the 
machine suddenly. Given all of the above, FRA has decided not to adopt 
this requested exception.
c. Requested Revision of Proposed Sec.  214.336(b)(2) To Permit a 
Roadway Work Group Component To Resume Work After the Head-End Has 
Passed the Component's Location
    AAR believes that work should be permitted to resume when the 
leading end of the equipment has passed, provided that the work is 
performed exclusively between the rails of the occupied track or on the 
clear side, and suggests that FRA adopt language to that effect in 
paragraph (b)(2) of Sec.  214.336, noting that there is no evidence of 
employees walking into the sides of trains. With respect to FRA's 
review of the related meeting documents and its conclusion in the NPRM 
that railroad management's proposal appears to have conceded that the 
entire movement must pass before permitting work to resume, regardless 
of speed, AAR submits that it did not make any such concession.
    FRA has decided that even if it were mistaken as to AAR's 
concession in this regard, each affected roadway worker whose work is 
not subject to an exception shall not be permitted to resume such work 
until after the entire movement (the trailing-end of the movement) has 
passed by the location of the roadway worker, due to the concerns 
raised by BMWED and BRS on this issue, namely that there are 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.
d. Request To Raise the Threshold Speed in Sec.  214.336(b) and Sec.  
214.336(c) From 25 MPH to 40 MPH for Passenger Trains
    APTA commented that it believes that the threshold speed that 
determines whether the stricter procedures in Sec.  214.336(b) apply 
should be raised from in excess of 25 mph for all trains to a minimum 
of 40 mph for passenger trains, noting that passenger trains have 
historically been permitted to operate at higher maximum authorized 
speeds than freight trains on the same track. APTA further noted that 
passenger trains can stop more quickly and easily than freight trains, 
and the roadway worker in charge is in the best position to gauge 
whether a slower speed is necessary for safe operations, based on local 
conditions and the type of work being performed.
    FRA has decided not to adopt APTA's proposed change. FRA responds 
that because passenger trains are shorter and do not present the same 
dangers of shifted loads/shifted ladings as freight trains, the roadway 
worker in charge is likely to send the passenger train through the 
working limits at the maximum authorized speed. Thus, the amount of 
time that the work would not be permitted to continue on the side of 
the occupied track closest to the movement and between the rails of the 
occupied track would be minimal.
6. Predetermined Place of Safety
    Both AAR and APTA requested in their comments that FRA provide 
clarification on what it considers a ``place of safety'' for purposes 
of the language in proposed Sec.  214.336(b)(1) to require that each 
roadway worker cease work and ``occupy a predetermined place of 
safety.'' APTA requested that FRA affirmatively state that the occupied 
track may be designated as a place of safety for purposes of that 
proposed provision, and AAR noted its belief that ``a place of safety'' 
includes between the rails of the occupied track, and that it may be 
safer for the roadway workers to stay between the rails of the occupied 
track (particularly if the roadway workers are occupying a track 
located between two or more tracks), rather than to cross the other 
track(s) to reach an alternative location.
    FRA agrees with AAR and APTA that under some circumstances, it may 
be safer for the roadway worker to stay between the rails of the 
occupied track, and that this is permitted to be an appropriate 
predetermined place of safety, as determined by the roadway worker in 
charge. In response to the comments made by APTA and AAR, FRA has 
provided clarification as to what is meant by ``a predetermined place 
of safety'' in Table 1 of this section. Specifically, FRA has added a 
note in Table 1, which provides that a ``predetermined place of 
safety'' (or ``PPOS''), as used in the table, means a specific location 
that an affected roadway worker must occupy upon receiving a watchman/
lookout's warning of approaching movement(s) (``warning'') or a roadway 
worker in charge's notification of pending movement(s) on an adjacent 
track (``notification''), as designated during the on-track safety job 
briefing required by Sec.  214.315. The PPOS may not be on a track, 
unless the track has working limits on it and no movements permitted 
within such working limits by the RWIC.\9\ Thus, under these 
circumstances, the space between the rails of the occupied track may be 
designated as a place to remain in position or to otherwise occupy upon 
receiving a warning or notification. Additionally, in response to 
concerns raised by BMWED and BRS in their joint comments concerning the 
potential dangers of having contingent places of safety, note 1 further 
explains that the roadway worker in charge must determine any change to 
a PPOS, and communicate such change to all affected roadway workers 
through an updated on-track safety job briefing.
---------------------------------------------------------------------------

    \9\ This is consistent with how FRA has applied a similar term, 
``a previously determined place of safety'' (see Sec.  
214.337(c)(4)) in the context of on-track safety procedures for lone 
workers: ``The place of safety to be occupied by a lone worker upon 
the approach of a train may not be on a track, unless working limits 
are established on that track.'' See Sec.  214.337(d).
---------------------------------------------------------------------------

7. The Effect of the Proposed Rule on Dispatchers
    FRA received comments from ATDA, submitted by Mr. Greg J. M. 
Godfrey (ATDA Local Chairman, New York Dispatchers), which are 
summarized in this paragraph. ATDA's comments favored increased 
railroad workplace safety, but noted that adoption of the proposed rule 
would result in additional requests for protection from the train 
dispatchers. The comments asserted that as a result of technological 
innovation to reduce workforce and the understaffing of other crafts 
(e.g., a roadway worker may be forced to request foul time to complete 
work that could have been conducted with a watchman/lookout instead), 
the dispatchers are already under an enormous amount of pressure. ATDA 
stated its belief that this significant pressure is the reason for the 
rise in unfortunate incidents that could have been prevented through a 
sufficient workforce and that the train dispatcher will need additional 
support and additional desks if the final rule provides increased 
measures of protections for roadway workers. Finally, ATDA indicated 
that this situation entails a real cost that needs to be factored in 
and that train dispatching districts will need to be studied to ensure 
adequate focus can be maintained by the train dispatchers.
    FRA notes in response that it believes this final rule will not 
result in a significant increase in the number of calls to a 
dispatcher, as the economic analysis assumes that the majority of the 
time, the roadway workers will be

[[Page 74599]]

utilizing train approach warning provided by watchmen/lookouts, rather 
than working limits established by a dispatcher. And in those 
circumstances where working limits need to be established, FRA 
anticipates that they will be established at the same time as the 
working limits for the occupied track are established; thus, FRA does 
not anticipate more than a de minimis increase in the workload of a 
dispatcher, especially since this rule will also eliminate many 
requests for working limits on adjacent tracks that are greater than 19 
feet away from the occupied track (as measured from centerline to 
centerline).

VII. Section-by-Section Analysis

Amendments to 49 CFR Part 214, Railroad Workplace Safety

Subpart A--General
Section 214.4 Preemptive Effect
    FRA has removed this section from 49 CFR part 214. This section was 
prescribed in 1996 and has become outdated and, therefore, misleading 
because it does not reflect post-1996 amendments to 49 U.S.C. 20106. 
See 61 FR 65975; Sec. 1710(c), Public Law 107-296, 116 Stat. 2319; Sec. 
1528, Public Law 110-53, 121 Stat. 453. Although FRA considered 
updating this regulatory section, FRA now believes that the section is 
unnecessary because 49 U.S.C. 20106 sufficiently addresses the 
preemptive effect of part 214. In other words, providing a separate 
Federal regulatory provision concerning the proposed regulation's 
preemptive effect is duplicative of 49 U.S.C. 20106 and, therefore, 
unnecessary.
    There has been no opportunity for public comment on this particular 
amendment in the final rule. FRA has determined, pursuant to section 4 
of the Administrative Procedure Act (5 U.S.C. 553), that prior notice 
and an opportunity for comment on the removal of Sec.  214.4 are not 
necessary. The amendment is administrative in nature and merely 
eliminates an outdated and incomplete restatement of the preemptive 
effect of part 214. As such, FRA finds that notice and public comment 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest'' under 5 U.S.C. 553(b)(3)(B).

Section 214.7 Definitions

    The existing version of Sec.  214.7 simply lists various terms used 
in part 214 and provides a definition of each term. Unlike the 
``definitions'' sections of most FRA safety regulations, the usual kind 
of introductory text (e.g., ``As used in this part'' or ``In this 
part'') is missing.
    In this final rule, Sec.  214.7 has been amended by adding 
introductory text, ``Unless otherwise provided, as used in this part--
'' prior to the list of definitions. This change is necessary for two 
reasons: (1) to clarify that the definitions apply to part 214 and not 
necessarily to other parts of the Code of Federal Regulations; and (2) 
to ensure that the addition of similar definitions (``adjacent track'' 
and ``adjacent controlled track'') that are applicable only to Sec.  
214.336 do not conflict in any way with the same terms in this 
``general definitions'' section. Note, however, that the definition of 
``adjacent tracks'' still applies to any other sections in part 214 
that reference the term, either in its plural or singular form, unless 
otherwise provided in the section in which the term is used.
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 that they will be 
conducting and the conditions under which they will conduct it, the 
existing requirements in Sec.  214.315 to hold a job briefing ``when an 
employer assigns duties to a roadway worker that call for that employee 
to foul a track'' have been expanded in revised Sec.  214.315 of this 
final rule to cover the procedures for adjacent-controlled-track on-
track safety in new 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 (as provided in paragraph (d) 
of that section). With a few minor changes, the text concerning the 
additional components of an on-track safety job briefing that is 
adopted in this final rule is the same as the 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 existing Sec.  214.315, to read as follows:

    (2) 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 was not intended to require a 
discussion about the on-track safety of an adjacent track unless on-
track safety was required on that track by part 214. FRA agreed that 
this was not the intent of the proposed requirement, and had added the 
language ``if required by this subpart or deemed necessary by the 
roadway worker in charge'' to the consensus rule text, which was 
proposed as new paragraph (a)(3) in the NPRM. The language concerning 
the discretion of the roadway worker in charge 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 was 
controlled or non-controlled, if that on-track safety was reasonably 
necessary given the nature of the work that was to be performed. This 
proposed section would still have required 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 deleted that language, and 
had moved the rest of the language into a new paragraph (a)(4) in the 
NPRM, 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.
    In the NPRM, FRA had further clarified in a proposed revision to 
introductory paragraph (a) that this section would list only the 
minimum items that would have to be discussed in an on-track safety 
briefing. In proposed Sec.  214.315(a), the words ``at a minimum'' were 
added, and the rest of existing paragraph (a) was moved to proposed 
paragraphs (a)(1) and (a)(2). FRA received no comments on the proposed 
amendments to this section, and FRA has adopted the amendments to this 
section as proposed for the reasons stated above.

Section 214.335 On-Track Safety Procedures for Roadway Work Groups, 
General

    Currently, Sec.  214.335(c) reads as follows:


[[Page 74600]]


    (c) 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.

    In this final rule, FRA has amended this section by deleting 
paragraph (c) and creating new requirements in a separate section to 
address on-track safety procedures for certain roadway work groups and 
adjacent tracks, Sec.  214.336, for the reasons discussed below. This 
final rule also amends the heading of Sec.  214.335 to reflect the 
general nature of the remaining requirements in that section.

Section 214.336 On-Track Safety Procedures for Certain Roadway Work 
Groups and Adjacent Tracks

Paragraph (a), Procedures; General
    As discussed in Sections I and II.C, above, existing Sec.  
214.335(c), which is in effect until this final rule becomes effective, 
requires adjacent-track on-track safety for a roadway work group only 
if such work group is engaged in ``large-scale maintenance or 
construction.'' Under this criterion and the limited guidance provided 
in the preamble to the 1996 final rule that prescribed the provision, 
many railroads had 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 that may be similarly or 
equally distracting to the roadway workers on the ground. New Sec.  
214.336 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.
    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 the 
operation of on-track, self-propelled equipment, the need to avoid 
entanglement in the operation of that equipment, and the need to 
monitor the quality of the work being performed. This set of factual 
circumstances became the basis for the 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 
new Sec.  214.336, which, as a general rule, requires 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 on-track, self-propelled equipment or 
coupled equipment (including single-unit, self-propelled equipment or 
units connected to non-powered on-track equipment by tow bars) on an 
occupied track. In particular, the on-track safety must 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) and as more 
specifically described in this section.
    This general rule is set forth in paragraph (a)(1), which also 
directs the reader to the exceptions described in paragraph (e). The 
more specific procedures for adjacent-controlled-track on-track safety 
are set forth in paragraphs (b) and (c), concerning movements on an 
adjacent controlled track at speeds over 25 mph, and at speeds of 25 
mph or less, respectively. The language in RSAC-recommended paragraph 
(a) was also modified in light of the new definition of ``adjacent 
controlled track,'' namely by removing the reference to the 19-foot 
track center distance and placing it in the definition in paragraph 
(a)(3).
    Paragraph (a)(2) addresses the special circumstances arising in 
territories with at least three tracks, if an occupied track is between 
two adjacent tracks, at least one of which is an adjacent controlled 
track. This paragraph differs from that proposed in the NPRM in that it 
now addresses two special circumstances, instead of one. The first, 
which was proposed in the NPRM as paragraph (a)(2) and is now set forth 
in paragraph (a)(2)(i) of this final rule, provides that if an occupied 
track has two adjacent controlled tracks, and one of these adjacent 
controlled tracks has one or more train or other on-track equipment 
movements authorized or permitted at a speed of 25 mph or less, and the 
other adjacent controlled track has one or more concurrent train or 
other on-track equipment movements authorized or permitted at a speed 
over 25 mph, the more restrictive procedures in paragraph (b) of this 
section apply. This special circumstance requires that all work (i.e., 
both on-ground work and equipment movement) on or between the rails of 
the occupied track and on both sides of the occupied track cease, 
since, as will be further discussed below, there is no side of the 
occupied track meeting the specified conditions for an exception to 
these procedures. See Sec.  214.336(e)(1).
    The second special circumstance arising in territories with at 
least three tracks (if an occupied track is between two adjacent 
tracks, at least one of which is an adjacent controlled track), is set 
forth in new paragraph (a)(2)(ii). This paragraph provides that if an 
occupied track has an adjacent controlled track on one side (Side X), 
and a non-controlled track whose track center is spaced 19 feet or less 
from the track center of the occupied track on the other side (Side Y), 
the affected roadway workers must treat the non-controlled track on 
Side Y as an adjacent controlled track for purposes of this section. 
While this circumstance was not raised during the RSAC discussions or 
in either of the NPRMs, FRA was concerned that the additional confusion 
of working between two tracks that are spaced that closely to the 
occupied track (i.e., with track centers spaced 19 feet or less from 
the track center of the occupied track) and requiring that the on-track 
safety procedures apply to one of the closely-spaced tracks (the 
controlled track on Side X), but not the other (the non-controlled 
track on Side Y), could result in fatalities on the non-controlled 
adjacent track (on Side Y). This approach is consistent with FRA's 
rationale for adopting the language in paragraph (e)(1)(ii) that 
imposes conditions on the exception for work performed on a side with 
one or more adjacent tracks so that work would be permitted on that 
side only if the danger posed by the closest track on that side had 
been essentially eliminated (i.e., either the closest adjacent track on 
that side has working limits on it with no movement permitted within 
such working limits by the roadway worker in charge (see paragraph 
(e)(1)(ii)), or that side has an inter-track barrier between the 
occupied track and the closest adjacent track on that side (see 
paragraph (e)(1)(iii)).
    Paragraph (a)(3) adds definitions of four new terms used 
exclusively in Sec.  214.336 (``adjacent controlled track,'' ``inter-
track barrier,'' ``minor correction,'' and ``occupied track''). This 
paragraph also adds a definition of the term ``adjacent track'' to this 
section that in a sense is substantively the same as an existing term 
(``adjacent tracks'') that is defined in Sec.  214.7, but which has 
been made singular and reworded so as

[[Page 74601]]

to parallel the construction of the definition of the new term 
``adjacent controlled track'' in this section and moreover is an 
application of the general definition of a track adjacent to the 
occupied track (not simply adjacent to another track).
    For purposes of 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.'' \10\ In contrast, the 
definition of ``adjacent tracks'' (in Sec.  214.7) includes any tracks, 
controlled or non-controlled (though this is implied, rather than 
explicitly stated), whose track centers are spaced less than 25 feet 
apart. The new definition of ``adjacent track'' in this section (``a 
controlled or non-controlled track whose track center is spaced less 
than 25 feet from the track center of the occupied track'') describes 
the track with respect to its relationship to the occupied track, and 
also explicitly states that the term could be applied to either a 
controlled or a non-controlled track. This helps ensure that the reader 
is aware of the distinctions between that term and the similar term 
``adjacent controlled track.'' Additionally, as noted above in the 
discussion of the amendments to Sec.  214.7, the definition of 
``adjacent tracks'' still applies to any other sections in part 214 
that reference the term, either in its plural or singular form, unless 
otherwise provided. To ensure that the terms do not conflict in any 
way, FRA has added qualifying language to the beginning of the general 
definitions section (Sec.  214.7).
---------------------------------------------------------------------------

    \10\ The definition continues as follows: ``Note, however, that 
under the special circumstances specified in paragraph (a)(2)(ii) of 
this section, a non-controlled track whose track center is spaced 19 
feet or less from the track center of the occupied track must be 
treated as an adjacent controlled track for purposes of this 
section.''
---------------------------------------------------------------------------

    FRA has adopted this narrower definition of ``adjacent controlled 
track'' and used the term as part of the triggering language for the 
requirements of this section based on the roadway worker fatality data 
discussed above in ``IV. Recent Roadway Worker Accidents (1997-2010),'' 
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 at 
which 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 also agrees that it is wise to adopt a 19-foot threshold, rather 
than a 15-foot threshold, to have an additional safety factor built in 
to prevent fatalities as well as injuries that could occur as a result 
of a shifted load/lading or debris, stones, or track construction/
maintenance materials becoming airborne while trains pass roadway 
workers. 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, absent special circumstances (see discussion of Sec.  
214.336(a)(2), above), 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 (a)(2), (a)(3) (see definition of ``inter-track barrier''), 
(d), and (e)(1)(i) through (iii), as further discussed, below.
    The third definition in Sec.  214.336(a)(3) is of the term ``inter-
track barrier,'' which means ``a continuous barrier of a permanent or 
semi-permanent nature that spans the entire work area, that is at least 
four feet in height, and that is of sufficient strength to prevent a 
roadway worker from fouling the adjacent track.'' As discussed in 
Section VI.D.4, regarding the comment requesting establishment of an 
exception for a ``continuous barrier,'' this term was added to clarify 
that only sturdy and continuous barriers that are at least four feet 
high are permissible for purposes of qualifying for this exception. See 
Sec.  214.336(e)(1)(iii) of the final rule.
    The fourth definition is of the term ``minor correction,'' which 
means ``one or more repairs of a minor nature, including but not 
limited to, spiking, anchoring, hand tamping, and joint bolt 
replacement that is accomplished with hand tools or handheld pneumatic 
tools only.'' The term does not include welding, machine spiking, 
machine tamping, or any similar type of repair. This term was added to 
provide guidance as to what type of work a roadway work group may 
perform under the exceptions for hi-rail vehicles and automated 
inspection cars being used for ``inspection or minor correction 
purposes'' (see paragraphs (e)(3)(i) and (ii)). The definition itself 
is based, in part, on the language in subpart B of part 214 describing 
``repairs or inspections of a minor nature'' for purposes of an 
exception to the fall protection requirements for bridge workers. See 
Sec.  214.103(d). FRA recognizes that the language in the bridge worker 
rule also contained the condition that the work be ``completed by 
working exclusively between the outside rails [of the occupied 
track].'' See id. As FRA has decided not to impose that same limitation 
here, the language has been tailored to ensure that the hi-rail 
vehicles or automated inspection cars are not being used in such a 
manner so as to create similar levels of noise and dust generated by 
the operation of on-track, self-propelled equipment performing machine 
tamping or machine surfacing, for example.
    The fifth definition to be used for purposes of Sec.  214.336 is 
``occupied track.'' FRA has defined the term ``occupied track'' to mean 
a track on which on-track, self-propelled equipment or coupled 
equipment is authorized or permitted to be located while engaged in a 
common task with a roadway work group with at least one of the roadway 
workers on the ground. FRA had originally proposed to replace 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 was already defined in part 214. While FRA 
recognized that the term ``on-track roadway maintenance machine'' 
excludes hi-rail vehicles, FRA did not anticipate any issues with the 
triggering language, as FRA had proposed that there be an exception for 
all hi-rail vehicles that were not coupled to one or more railroad cars 
or not operating on the same occupied track and within the working 
limits of a roadway work group as described in the NPRM-proposed 
paragraph (a) (e.g., a roadway work group that had triggered the 
applicability of this section due to being engaged in a common task 
with a hi-rail vehicle and at least one other piece of equipment that 
did in fact meet the definition of an on-track roadway maintenance 
machine). However, now that FRA has decided to limit the hi-rail 
vehicle exception in what is now paragraph (e)(3)(i) to those hi-rail 
vehicles being used for inspection or minor correction purposes, the 
broader consensus language needs to be reinstated in order to capture 
those hi-rail vehicles that are being used for

[[Page 74602]]

purposes other than inspection or minor correction.
    FRA has also added the words ``authorized or permitted to be'' in 
front of ``located'' to make clear that if a roadway work group and an 
on-track roadway maintenance machine, for example, were to be 
physically located on a track without authorization or permission (and 
would be occupying the track in the physical sense), FRA would not 
consider the track to be an ``occupied track'' for purposes of 
enforcing this section. Instead, FRA would enforce other sections of 
the rule that would prohibit an operator of such a machine from fouling 
a track without appropriate on-track safety on that track (see, e.g., 
Sec. Sec.  214.313(c) and 214.335(a)), as the roadway workers in this 
scenario would be subject to a much greater danger than those that had 
established appropriate on-track safety for the track on which they 
were located but had failed to establish on-track safety on an adjacent 
controlled track.
    Another change from the NPRM-proposed language was to add the 
phrase ``with at least one of the roadway workers on the ground'' 
following ``a roadway work group'' at the end of the sentence. This 
change was made in response to a concern raised by BMWED and BRS in 
their joint comments that it was unclear that one roadway worker on the 
ground would trigger the requirements of this section. Their comments 
noted that clarification was necessary because roadway worker 
fatalities have occurred while only one roadway worker was on the 
ground. FRA notes that while the definition as proposed in the NPRM did 
not affect the triggering language in paragraph (a)(1), FRA decided to 
make the definition consistent with such language for additional 
clarity.
Paragraphs (b), Procedures for Adjacent-Controlled-Track Movements Over 
25 mph; and (c), Procedures for Adjacent-Controlled-Track Movements 25 
mph or Less
    Paragraphs (b) and (c) list the specific procedures to follow 
depending on the authorized or permitted speed of one or more train or 
other on-track equipment movements on an adjacent controlled track 
(``adjacent-controlled-track movements''). FRA believes that revising 
and reorganizing the consensus language from paragraphs (c)(1) and 
(c)(3) into paragraphs (b) and (c) and contrasting the procedures with 
headings based on higher-speed (i.e., over 25 mph) versus low-speed 
(i.e., 25 mph or less) movements makes the section easier to 
understand.
Paragraph (b), Procedures for Adjacent-Controlled-Track Movements Over 
25 mph
    Paragraph (b) 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 by the dispatcher or by the 
applicable timetable or permitted by the roadway worker in charge to 
move on an adjacent controlled track at a speed greater than 25 mph). 
Paragraph (c) lists the procedures to follow when one or more adjacent-
controlled-track movements are authorized or permitted at a speed of 25 
mph or less.\11\ As noted above in the discussion of paragraph 
(a)(2)(i), if an occupied track has two adjacent controlled tracks, and 
one of these adjacent controlled tracks has one or more movements 
authorized or permitted at 25 mph or less, and the other adjacent 
controlled track has one or more concurrent movements authorized or 
permitted at over 25 mph, the more restrictive procedures in paragraph 
(b) would apply. Note that the word ``permitted'' has been added to 
this section for consistency with its use in Sec.  214.321(a)(2) and to 
ensure that there is no confusion caused by the use of the word 
``authorized,'' which may be understood by some members of the 
regulated community to denote authorized by a train dispatcher or by a 
timetable (e.g., maximum authorized speed).
---------------------------------------------------------------------------

    \11\ If a roadway worker in charge, in his or her discretion, 
permits a train through the 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 new 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.
---------------------------------------------------------------------------

    The first clause of the introductory language in paragraph (b) has 
been slightly modified from what was proposed in the NPRM. The cross-
reference to the exceptions in paragraph (e) has been revised to be 
more descriptive (``[e]xcept for the work activities as described in 
paragraph (e)'' instead of ``except as provided in paragraph (e)'') and 
moved to paragraph (b)(1) to ensure that it is read in conjunction with 
the requirements listed in that paragraph.
    The introductory language in paragraph (b) has also been modified 
by limiting the applicability of the procedures (which include the 
requirement to cease work) to only those roadway workers that would be 
``affected by'' the adjacent-controlled-track movement(s). This 
narrowing of the requirement is necessary because, in some situations, 
a roadway worker in charge may have authority limits that span a 
greater distance than the working limits (the specifically designated 
area in which roadway workers have been given permission to work by the 
roadway worker in charge) of the roadway work group, and he or she may 
want to permit a train into the limits of the authority on an adjacent 
controlled track, but hold the train short of the working limits (work 
area) of the roadway work group on the occupied track. In such 
situations, the rule does not require any work within the working 
limits (work area) of the roadway work group to cease because the 
roadway workers would not be affected by the movement (i.e., the train 
would not be passing by the work area).
    The addition of the word ``affected'' to this section is consistent 
with how the existing notification procedures regarding a change in the 
on-track safety procedures have been written and applied (see Sec.  
214.315(d), which states in part, ``[s]uch information shall be given 
to all roadway workers affected before the change is effective, except 
in cases of emergency''). If no notification is necessary for certain 
roadway workers because the change in on-track safety does not affect 
them, then it follows that those roadway workers would not need to 
cease work. Thus, this issue is not unique to the adjacent-controlled-
track context. For example, if a roadway worker in charge had ``track 
and time'' (a form of exclusive track occupancy, which is one method of 
establishing working limits) on a single main track from milepost (MP) 
10 to MP 20, but explained in the on-track safety job briefing that the 
roadway work group's working limits were only from MP 15 to MP 20, then 
the roadway worker in charge would be permitted to allow a train to 
come into the larger authority limits up to a designated point (i.e., 
between MP 10 and MP 15) short of the smaller working limits (i.e., 
between MP 15 and MP 20) given to the roadway workers, without first 
having to notify those roadway workers of the pending movement because 
they would not be ``affected'' by this movement.
    In other cases, the limits of the track authority and the working 
limits for the roadway work group start off the same, but as the work 
is completed along the track, the roadway worker in charge may decide 
that it is best to ``roll up,''

[[Page 74603]]

or shorten, the working limits of the group (and may even formally 
relinquish a portion of the authority limits to the dispatcher). In 
such cases, the roadway worker in charge must inform each affected 
roadway worker in the roadway work group of the new working limits 
through an updated on-track safety job briefing. See Sec.  214.315(d). 
FRA believes that it is safe to apply the same principles that have 
been applied outside of the adjacent-controlled-track context (e.g., to 
single-main-track territory), regarding each ``affected'' roadway 
worker, to the adjacent-controlled-track context, especially since the 
train (or other on-track equipment movement) would be traveling on the 
adjacent controlled track rather than the occupied track, where an 
accidental incursion into the working limits of the roadway work group 
would likely be more dangerous.
Paragraph (b)(1), Ceasing Work and Occupying a Predetermined Place of 
Safety
    Paragraph (b)(1) generally requires that, upon receiving a 
watchman/lookout warning or notification of one or more pending 
movements on an adjacent controlled track (as applicable), each roadway 
worker in the roadway work group shall, as described in Table 1 of this 
section, cease all on-ground work and equipment movement that is being 
performed on or between the rails of the occupied track or on one or 
both sides of the occupied track, and occupy a predetermined place of 
safety. FRA has added the language ``as described in Table 1 of this 
section'' to the rule text to ensure that the reader is aware that 
Table 1 indicates the areas where the work must cease and, in addition 
to providing clarifications of the rule text, expands upon the 
requirements.
When Work Must Cease
    When the work must cease depends upon which method of on-track 
safety is being used. If on-track safety is 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 must cease upon receiving a 
watchman/lookout warning. See Sec.  214.336(b)(1)(ii). On the other 
hand, if working limits are established on the adjacent controlled 
track and the roadway work group has not been assigned a watchman/
lookout, all work must cease upon receiving a notification that the 
roadway worker in charge intends to permit one or more train movements 
or other on-track equipment movements within the working limits on the 
adjacent controlled track. See Sec.  214.336(b)(1)(i). This 
notification must occur before the roadway worker in charge releases 
the working limits (or a portion thereof that would affect one or more 
of the roadway workers in the roadway work group), in order to comply 
with existing Sec.  214.319(c). See also, Table 1 of Sec.  214.336, 
note 1. It should be noted that FRA has changed the word ``through'' to 
``within'' so that there would be no doubt that the ``cease work'' 
procedures would also be triggered if, for example, a roadway worker in 
charge decided to permit a train ``within'' the limits, but not all the 
way ``through'' such limits. This same change has been made to 
paragraphs (e)(1)(ii) and (f) for consistency throughout this section 
and with existing Sec.  214.321(d), which states in part that movements 
of trains and roadway maintenance machines ``within'' working limits 
shall be made only under the direction of the roadway worker in charge.
Where Work Must Cease
    Where the work must cease would depend upon various factors, 
including the speed of the movement on the adjacent-controlled track, 
the method(s) of on-track safety being used on one or both sides of the 
occupied track, and whether the work that is being performed meets one 
of the exceptions in paragraph (e). In order to help roadway workers 
and the regulated community at large better understand how these 
factors determine which procedures they are to follow, FRA has created 
a table (Table 1) that summarizes how the procedures apply to different 
factual scenarios. The accompanying diagrams (Figure 1), which were 
created to correspond to the same example numbers in Table 1, help the 
reader visualize the factual scenarios. While FRA refers to the tracks 
in Table 1 and in the diagrams in Figure 1 with specific track numbers, 
both Table 1 and the diagrams are intended to apply to similarly-
situated tracks, regardless of the actual number or letter of the 
track.
    As noted above, Table 1 is part of the rule text of Sec.  214.336 
and provides examples of the application of the rest of the rule text, 
but Table 1 also expands upon the requirements set forth in the 
paragraphs of Sec.  214.336. One such expansion, which represents a 
change from the NPRM, is the way in which FRA is interpreting the word 
``side.'' The NPRM proposed to require that (upon receiving a 
notification or a watchman/lookout warning, as applicable) work must 
cease ``in the fouling space of the occupied track and the adjacent 
controlled track.'' This language would have created a potential 
loophole, in which a roadway worker would technically not have been 
required to cease work in the small area (if any, depending on how 
closely spaced the track centers are) between the fouling space of the 
adjacent controlled track (e.g., Track 1 on Side A) and the fouling 
space of the occupied track (e.g., Track 2) on Side A.
    While FRA does not believe that any member of the Working Group 
intended that work be permitted in any area between the fouling spaces 
on Side A during a movement on Side A, FRA believes that it would have 
been reasonable for some members to interpret this language as 
permitting work to continue beyond the fouling space of the occupied 
track on the opposite side of the occupied track (e.g., Side B), since 
work beyond the fouling space of the occupied track on that side (e.g., 
Side B) was not specifically addressed by the rule text, and since 
roadway workers that are fouling any adjacent track on that side would 
already be required to have on-track safety for that track. However, 
this interpretation would have presented a potential conflict with the 
spirit of the proposed language in the NPRM that would have permitted 
work to occur on a side that ``has an adjacent track or tracks on that 
side if working limits had been established in accordance with this 
subpart on the closest adjacent track on that side and there were no 
movements authorized through the working limits by the roadway worker 
in charge on that adjacent track.'' \12\
---------------------------------------------------------------------------

    \12\ 74 FR 61653. FRA noted in the NPRM that, in applying the 
exception in proposed paragraph (e)(1), this language would have the 
effect of requiring that working limits be established on an 
adjacent track (on the 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 and whose centerline is 
within 12 feet of the occupied track. See id. at 61640-61641. FRA 
sought comment as to the frequency with which these, or similar, 
circumstances would occur, and whether this language imposed an 
unreasonable burden. See id. at 61641. BMWED and BRS commented that 
the language proposed in paragraph (e)(1) was overly broad and would 
impose an unreasonable safety burden on roadway workers, but did not 
comment as to the frequency of these, or similar, circumstances. FRA 
received no comments from AAR on this issue, thus it is FRA's 
understanding that such circumstances are rare.
---------------------------------------------------------------------------

    FRA has decided to resolve both the potential loophole and the 
potential conflict by describing a ``side'' with an adjacent controlled 
track (including an adjacent track that is being treated as an adjacent 
controlled track, per Sec.  214.336(a)(2)(ii)), broadly in Table 1 as

[[Page 74604]]

``the side from the vertical plane of the near running rail of the 
occupied track extending outward through to the fouling space of the 
adjacent controlled track.'' FRA does not expect this interpretation of 
a ``side'' to have a significant cost impact on a railroad because it 
is FRA's understanding that the railroad would primarily be working on 
the occupied track (e.g., Track 2) and would not be likely to take 
Track 3 out of service (e.g., by establishing working limits, if Tracks 
1 and 2 are already out of service) unless the work was of such a 
nature to require that, rather than establishing train approach 
warning. In such cases, the working limits would already need to be 
established on that track due to the nature of the work being performed 
on that track, rather than as a result of this rule. As Track 3 in this 
scenario would essentially become an extension of the occupied track 
(where work amongst components of a roadway work group on two tracks is 
coordinated in much the same way as work amongst components of a 
roadway work group on the same track), work would be permitted to 
continue in the fouling space of that track (and the rest of Side B), 
so long as there are no movements permitted within the working limits 
on that track (other than movements of the roadway work group that is 
occupying Tracks 2 and 3). FRA makes clear that it is concerned with 
``outside'' movements, as all of the fatalities occurred on an adjacent 
track with equipment that was not being operated by a roadway worker 
that was a member of the same roadway work group as the employee that 
was fatally injured.
    Table 1 also illustrates the interrelation of various sections of 
the rule. For example, note 2 (which is referenced in the center column 
of examples 1-4, and 6) reminds the reader that, per Sec.  
214.336(a)(2)(i), work would no longer be permitted to continue on or 
between the rails of the occupied track during movement(s) on an 
adjacent controlled track at 25 mph or less if there is a simultaneous 
movement on the other adjacent controlled track at more than 25 mph.
    Note 2 of Table 1 further provides that on-ground work is 
prohibited in the areas 25' in front of and 25' behind equipment (on 
the occupied track during a low-speed movement on an adjacent 
controlled track), and must not break the plane of a rail on the 
occupied track (Track 2) towards a side of the occupied track unless 
work is permitted on that side. Without this clarifying note, a roadway 
worker performing on-ground work exclusively between the rails of the 
occupied track would not technically have been permitted to break the 
plane of the rail closest to a side of the occupied track (e.g., Side 
B) on which work was permitted during a low-speed (25 mph or less) 
movement on an adjacent controlled track. Similarly, in note 3, FRA 
clarifies that breaking the plane of the rail while working on a side 
of the occupied track is permitted: 1) During the times that work is 
permitted on or between the rails of the occupied track in accordance 
with Sec.  214.336(c) (Procedures for adjacent-controlled-track 
movements 25 mph or less); or 2) if such work is performed alongside a 
roadway maintenance machine or coupled equipment in accordance with 
Sec.  214.336(e)(2).
    Another clarifying point in the table worth noting is that, while 
the rule permits train approach warning to be used as a method for 
providing on-track safety for an adjacent controlled track, work that 
is being performed under train approach warning on both sides of an 
occupied track (assuming there is an adjacent controlled track on each 
side of the occupied track) must cease on both sides of the occupied 
track upon receiving a watchman/lookout warning for a train or other 
on-track equipment movement (at any speed) on the adjacent controlled 
track on either side. See Table 1, Ex. 4. This is the practical effect 
of not meeting the conditions for permitting work to continue on a side 
of the occupied track under the exception in paragraph (e)(1)(ii), 
which permits work on a side with one or more adjacent tracks if the 
closest adjacent track has working limits on it and no movements 
permitted within such working limits. The cessation of work on both 
sides of the occupied track is necessary to ensure that a roadway 
worker will not mistake a watchman/lookout's warning regarding a train 
on Track 1, for example, for a warning regarding a train on Track 3, 
and vice versa.
    Additionally, FRA makes clear that upon receiving the warning for a 
train on Track 1 in the above scenario, it would not be safe for a 
roadway worker to occupy Track 3 as a predetermined place of safety, as 
a train could arrive on that track at any time during the movement on 
Track 1. Rather, the predetermined place of safety must be clear of all 
tracks that do not have working limits established on them (with no 
outside movements within such limits), and may be the space between the 
rails of the occupied track under such circumstances. See Table 1, note 
1; see also Section VI.D.6 of this preamble (regarding the response to 
comments concerning a predetermined place of safety).
Paragraph (b)(2), Resuming Work
    Regarding when the work required to cease in paragraph (b)(1) is 
permitted to resume, paragraph (b)(2) provides that an affected roadway 
worker may resume on-ground work and equipment movement (on or between 
the rails of the occupied track or on one or both sides of the occupied 
track as described in Table 1 of this section) only after the trailing-
end of all trains or other on-track equipment moving on the adjacent 
controlled track (for which a warning or notification has been received 
in accordance with paragraph (b)(1) of this section) has passed and 
remains ahead of that roadway worker. As discussed in Section VI.D.5 of 
this preamble, FRA received comments from AAR indicating that work 
performed exclusively between the rails of the occupied track or on the 
side of the occupied track furthest from the movement should be 
permitted to resume when the leading end of the equipment has passed.
    FRA has decided in this final rule that each affected roadway 
worker whose work is not subject to an exception shall not be permitted 
to resume such work until after the entire movement (the trailing-end 
of the movement) has passed by the location of the roadway worker, due 
to the concerns raised by BMWED and BRS on this issue. Those concerns 
include 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. For the reasons set forth 
in the NPRM and above, FRA has adopted the above language in this final 
rule, with modifications for consistency with other modified sections. 
For example, ``a component of a roadway work group'' was changed to 
``an affected roadway worker,'' and the descriptions of the equipment 
and where the work needed to cease was revised to parallel the language 
for ceasing work in new paragraph (b)(1).
    If the train or other on-track equipment stops before its trailing-
end has passed all of the affected roadway workers in the roadway work 
group, the work to be performed (on or between the rails of the 
occupied track or on one or both sides of the occupied track as 
described in Table 1 of this section) ahead of the trailing-end of the 
train or other on-track equipment on the

[[Page 74605]]

adjacent controlled track may resume only under two circumstances. 
First, this work may resume if on-track safety through train approach 
warning (Sec.  214.329) has been established on the adjacent controlled 
track.\13\ See Sec.  214.336(b)(2)(ii)(A). Second, this work may resume 
if the roadway worker in charge has communicated with a member of the 
train crew or on-track 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. See Sec.  
214.336(b)(2)(ii)(B).
---------------------------------------------------------------------------

    \13\ It should be noted that the train approach warning option 
provided in new Sec.  214.336(b)(2)(ii)(A) would not be permitted 
alongside the train on the adjacent controlled track (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 watchman/lookout to 
give the roadway worker any (or sufficient) time to clear. Under 
such circumstances, work would not be permitted to resume until the 
conditions in Sec.  214.336(b)(2)(ii)(B) have been met, or until the 
train resumes its movement and its trailing-end passes the affected 
roadway worker's location, whichever comes first.
---------------------------------------------------------------------------

    FRA received no comments on the proposed language in paragraph 
(b)(2)(ii) of the NPRM. For the reasons stated in the NPRM, FRA has 
adopted the proposed language with two minor modifications, namely, 
revising the description of where the work would need to cease to 
parallel the language for the requirement to cease work in new 
paragraph (b)(1), and changing ``the train engineer or equipment 
operator'' to ``a member of the train crew or the on-track equipment 
operator'' to be more consistent with Sec.  214.325(b) (regarding train 
coordination).
Paragraph (c), Procedures for Adjacent-Controlled-Track Movements 25 
mph or Less
    The procedures for adjacent-controlled-track movements at a speed 
of 25 mph or less are the same as those procedures for adjacent-
controlled-track movements at a speed greater than 25 mph, except that 
certain work would be permitted to continue, due to the low speed of 
the movements. In 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 a speed of 25 
mph or less, and the other has one or more concurrent adjacent-
controlled-track movements authorized at a speed greater than 25 mph, 
the more restrictive procedures in paragraph (b) apply.
    Paragraph (c) provides that ``equipment movement on the rails of 
the occupied track and on-ground work performed exclusively between the 
rails (i.e., not breaking the plane of the rails) of the occupied track 
may continue'' during low-speed movements on adjacent controlled 
tracks, ``provided that no on-ground work is performed within the areas 
25 feet in front of and 25 feet behind any on-track, self-propelled 
equipment or coupled equipment that is moving or permitted to move on 
the occupied track.'' Thus, unless the work falls under one of the 
exceptions in paragraph (e), an affected roadway worker (after 
receiving a warning or notification of an adjacent-controlled-track 
movement at any speed \14\) would be required to cease all on-ground 
work within the areas 25 feet in front of and 25 feet behind any on-
track, self-propelled equipment or coupled equipment that is moving or 
permitted to move on the occupied track. The words ``that is moving or 
permitted to move'' were added to this condition to permit some (very 
limited) flexibility where preventative measures are in place to ensure 
that the equipment would not move and pose a danger or distraction to 
the on-ground roadway workers in its immediate vicinity. FRA makes 
clear, however, that stationary on-track, self-propelled equipment or 
coupled equipment located on the occupied track is considered to be 
``permitted to move'' for purposes of this section unless it is 
expressly prohibited from moving by the roadway worker in charge (and 
discussed in an on-track safety job briefing) or an operating rule of 
the railroad that prohibits all such equipment movement on the occupied 
track during a low-speed movement on an adjacent controlled track.
---------------------------------------------------------------------------

    \14\ If the movement were authorized or permitted at a speed 
greater than 25 mph, on-ground work not subject to an exception 
would need to cease between the rails of the occupied track 
regardless of whether the work is being performed more than 25 feet 
from on-track, self-propelled equipment or coupled equipment on the 
occupied track.
---------------------------------------------------------------------------

    For the reasons set forth in the NPRM, FRA has decided to adopt the 
Working Group's recommendation of a 25-foot buffer zone as a condition 
for permitting work to continue as described in paragraph (c). FRA has 
modified the language proposed in the NPRM for consistency with other 
changes to the rule text in this final rule, such as adding the concept 
of the ``affected'' roadway worker, and also to add clarity. For 
example, the NPRM language phrased the 25-foot buffer zone condition in 
part as, ``provided that any on-ground work is performed more than 25 
feet in front of or behind any roadway maintenance machine;'' however, 
this language may have been interpreted by some as prohibiting work 
alongside equipment (to verify the quality of the work being performed 
by that equipment, for example) on a side of the occupied track meeting 
specified condition(s) (see Sec.  214.336(e)(1)), which FRA intended to 
permit. See 74 FR 61647. FRA has also revised the applicability of the 
prohibition to the 25-foot areas in front of and behind any ``on-track, 
self-propelled equipment or coupled equipment,'' rather than ``roadway 
maintenance machines,'' because the need to maintain a safe distance 
between on-ground roadway workers and such equipment is the same as the 
need to maintain a safe distance between on-ground roadway workers and 
roadway maintenance machines on the occupied track. Additionally, FRA 
does not believe that the Working Group intended to recommend requiring 
a distance between on-ground roadway workers and smaller roadway 
maintenance machines that are not rail-mounted (i.e., that are not 
designed to operate on the rails of a track) and self-propelled, such 
as pneumatic hand tampers, as it is FRA's understanding that the 
machine-spacing requirements already in existence (per Sec.  
214.341(a)(5)) do not apply to these types of roadway maintenance 
machines.
    Paragraph (c) has also been revised from that proposed in the NPRM 
to permit the continuation of on-ground work that is performed 
``exclusively between the rails (i.e., not breaking the plane of the 
rails) of the occupied track,'' rather than ``exclusively while 
positioned on or between the rails of the occupied track,'' provided 
that the on-ground work is not performed within the 25-foot areas 
discussed above. This revision provides a clear, ``bright line'' 
approach to make it easier both for roadway workers and the regulated 
community at large to follow and for FRA to enforce. As a result, on-
ground roadway workers must be mindful not to break the plane of the 
rail with his or her person or tools towards a side of the occupied 
track on which work is prohibited during a low-speed movement on an 
adjacent controlled track. See Table 1, note 2. If, however, work is 
permitted on one side of the occupied track during the low-speed 
movement, then the roadway worker is permitted to break the plane of 
the rail on that side only. See id.
    The NPRM had also proposed a second set of circumstances in 
paragraph (c) for permitting work to continue during a low-speed 
movement

[[Page 74606]]

on an adjacent controlled track, which was when the work is performed 
to the ``clear side'' of the occupied track, provided that it is 
performed outside of the 25-foot areas described above. However, this 
set of circumstances was for the most part repetitive of what was 
proposed in the exceptions in paragraph (e) and was really provided as 
more of a cross-reference so that the reader would be able to 
understand the range of work that was permissible during a low-speed 
movement on an adjacent controlled track. Given that the proposed term 
``clear side'' has not been adopted in this final rule and that FRA has 
created a table and diagrams that provide a more comprehensive overview 
of how the exceptions fit in with the general rules and procedures of 
this section (see, e.g., Table 1, note 3; Figure 1, Ex. 2), FRA has 
decided that replacing the term ``clear side'' with a cross-reference 
to the language in paragraph (e) is not necessary.
    It should also be noted that paragraph (c) only directly addresses 
the types of work that a roadway worker in the roadway work group 
affected by the movement on the adjacent controlled track may continue 
performing. Paragraph (c) 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 follow the procedures in paragraph (b)(2). For 
example, since on-ground work that would need to be performed between 
the rails and near a roadway maintenance machine (i.e., in the 25-foot 
areas in front of or behind the specified equipment that is on the 
occupied track) is not covered by paragraph (c), such work must cease 
upon receiving a warning or notification (as applicable) and is not 
permitted to resume until the conditions in paragraph (b)(2) have been 
fulfilled. That is to say, such work (as well as all other work that an 
affected roadway worker must cease, as noted in paragraph (b)(1), that 
is not permitted to continue by paragraph (c) and not subject to one of 
the exceptions in paragraph (e)) is permitted to resume only after the 
trailing-end of all movements (for which a warning or notification (as 
applicable) has been received in accordance with paragraph (b)(1) of 
this section) has passed by (and remains ahead of) the affected roadway 
worker (including any equipment or tools that he or she is using).
Paragraph (d), Discretion of Roadway Worker in Charge
    This paragraph emphasizes that the on-track safety procedures of 
this section are minimum requirements, and that a roadway worker in 
charge is free to establish 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. This paragraph was proposed in the 
NPRM as paragraph (f), but has been switched with what was proposed as 
paragraph (d) (``Procedures for a roadway maintenance machine or 
coupled equipment fouling an adjacent controlled track'') in order to 
accommodate a potential future deletion of that paragraph as discussed 
in the analysis of paragraph (f), below.
    Paragraph (d) is based on the language recommended by the Working 
Group in consensus paragraphs (e)(1) and (3) for the reasons described 
in the preamble of the NPRM. No comments on paragraph (f) as proposed 
in the NPRM have been received, and proposed paragraph (f) has been 
adopted verbatim in this final rule as paragraph (d).
Paragraph (e), Exceptions to the Requirements in Paragraphs (a), (b), 
and (c) for Adjacent-Controlled-Track On-Track Safety
    The Working Group also discussed, and the RSAC recommended, that 
there be three exceptions when adjacent-controlled-track on-track 
safety would not have to be established at all. See consensus 
paragraphs (e)(1) through (3). In this final rule, FRA has adopted all 
three exceptions proposed in the NPRM, with modifications for clarity, 
and has also adopted two additional exceptions on which FRA sought 
comment. See Sec.  214.336(e); 74 FR 61641-42.
    In this final rule, the introductory language and heading in 
paragraph (e) clarify that this paragraph is not meant to exempt 
roadway workers from having to establish on-track safety in accordance 
with paragraphs (d) (Discretion of roadway worker in charge) or (f) 
(Procedures for components of roadway maintenance machines fouling an 
adjacent controlled track). Rather, paragraph (e) is meant to exempt 
roadway workers from the requirements in paragraphs (a), (b), and (c) 
for adjacent-controlled-track on-track safety during the times that the 
roadway work group is exclusively performing one or more of the work 
activities listed in paragraphs (e)(1) through (3).
Paragraph (e)(1), On-Ground Work Performed on a Side of the Occupied 
Track Meeting Specified Conditions(s)
    The first exception to the requirement for adjacent-controlled-
track on-track safety is for on-ground work performed on a side of the 
occupied track meeting specified condition(s) that would ensure that 
those performing the work would essentially not be exposed to danger 
caused by a train movement on any adjacent track on that side. FRA 
believes that there are three types of sides meeting a condition (or 
sets of conditions) that make it safe for on-ground work to be 
performed on that side of an occupied track while there is no on-track 
safety (or the on-track safety, such as a Form B (a form of exclusive 
track occupancy) has been temporarily nullified to permit a train 
within or through the working limits) on the opposite side of the 
occupied track.
    The first type of side of the occupied track is a side with no 
adjacent track. See Sec.  214.336(e)(1)(i). This means that either that 
side has no track whatsoever, or else that the closest track on that 
side is at least 25 feet away from the occupied track (as measured from 
track center to track center). In the latter situation, there is 
sufficient distance to prevent inadvertent fouling of an adjacent 
track, as supported by the accident data as well as by current (through 
the effective date of this rule) Sec.  214.335(c), which does not 
require on-track safety on tracks that are at least 25 feet away even 
if the work is considered ``large-scale maintenance or construction.''
    If, on the other hand, a side of the occupied track has one or more 
adjacent tracks (i.e., one or more tracks within 25 feet), then work is 
permitted on that side by this final rule only if either (1) the 
closest adjacent track on that side has working limits on it and no 
movements permitted within such working limits by the roadway worker in 
charge, or (2) there is an inter-track barrier (meeting specified 
criteria) between the occupied track and the closest adjacent track on 
that side. See Sec. Sec.  214.336(e)(1)(ii) and (iii) and 214.336(a)(3) 
(definition of ``inter-track barrier'').
    In this final rule, FRA has considered the additional comments 
raised by BMWED and BRS on this section, particularly on the use of the 
term ``clear side,'' and has removed the term to eliminate any 
confusion. However, FRA still believes that it is safe to work on the 
side of an occupied track with working limits on the closest adjacent 
track on that side and no movements permitted within such limits on 
that

[[Page 74607]]

side, and that establishing the near running rail as a demarcation 
point is a bright line approach that will make it easier both for the 
roadway workers and the regulated community at large to follow and for 
FRA to enforce. In addition, as discussed in the comments addressing 
the inter-track barrier in Section VI.D.4, above, FRA also believes 
that it is safe to work on a side of the track that has an inter-track 
barrier (``a continuous barrier of a permanent or semi-permanent nature 
that spans the entire work area, that is at least four feet in height, 
and that is of sufficient strength to prevent a roadway worker from 
fouling the adjacent track'') between the occupied track and the 
closest adjacent track on that side. See Sec. Sec.  214.336(a)(3) 
(``inter-track barrier'') and 214.336(e)(1)(iii).
Paragraph (e)(2), Maintenance or Repairs Performed Alongside Machines 
or Equipment on the Occupied Track
    The second exception to the requirements for adjacent-controlled-
track on-track safety is for maintenance or repairs performed alongside 
roadway maintenance machines or coupled equipment (located on the 
occupied track), provided that such machine or equipment would 
effectively prevent the worker from fouling the adjacent controlled 
track on the other side of such equipment, and that such maintenance or 
repairs are performed while positioned on a side of the occupied track 
where there should essentially be no danger posed by any other adjacent 
track (i.e., a side of the occupied track as described in paragraph 
(e)(1)(i), (ii), or (iii) and Table 1 of this section). This new 
exception is really an outgrowth of the first exception which, as 
proposed in the NPRM, would have permitted this type of work to be 
performed during a train or other on-track equipment movement on the 
opposite side of the occupied track. However, the joint comments of 
BMWED and BRS expressed concern that work should not be permitted in 
the foul of the occupied track (even if mostly positioned on the side 
opposite from the movement) unless the machine acted as a physical 
barrier between the roadway worker and the adjacent controlled track on 
which the movement was occurring.
    As this final rule adopts a bright line approach that would 
generally not permit a roadway worker to break the plane of a rail 
(into the gage of the occupied track towards an adjacent controlled 
track on which a movement is occurring), and since, in order to change 
out a grinding stone (one of the examples the Working Group sought to 
address), the bright line of the rail must necessarily be crossed, FRA 
has decided to adopt this physical barrier concept for any work that 
would need to cross the plane of the rail into the gage of the occupied 
track. Thus, this final rule permits one or more roadway workers to 
perform maintenance or repairs alongside a roadway maintenance machine 
or coupled equipment, provided that (1) such machine or equipment would 
effectively prevent the worker from fouling the adjacent controlled 
track on the other side of such equipment, and (2) that such 
maintenance or repairs are performed while positioned on a side of the 
occupied track as described in paragraph (e)(1)(i), (ii), or (iii) and 
Table 1 of this section. FRA specifically refrained from using the word 
``barrier'' to describe this first condition in the rule text, so that 
it would not be confused with the exception involving an ``inter-track 
barrier.'' The second condition ensures that the roadway worker will 
remain out of harm's way because he or she will need to be positioned 
(standing, kneeling, sitting, squatting, or lying with both feet 
outside of the gage of the track) for the most part on a side meeting 
specified condition(s) (as described in paragraph (e)(1) and Table 1) 
while performing such maintenance or repairs. For example, paragraph 
(e)(2) permits a roadway worker to refuel a roadway maintenance 
machine, if the machine would effectively prevent the worker from 
fouling the adjacent controlled track on the other side of such 
equipment and he or she is able to do so while positioned (for the most 
part) on a side meeting the specified condition(s).
Paragraph (e)(3), Work Activities Involving Certain Equipment and 
Purposes
    The third exception to the requirements for adjacent-controlled-
track on-track safety is for work activities involving certain types of 
equipment used for certain purposes. Specifically, this exception 
applies to one or more on-ground roadway workers engaged in a common 
task on an occupied track with on-track, self-propelled equipment or 
coupled equipment consisting exclusively of one or more of three types 
of equipment: hi-rail vehicles; automated inspection cars; and catenary 
maintenance tower cars. This language mimicking the triggering language 
in paragraph (a)(1) was moved to the introductory text in paragraph 
(e)(3), rather than having to repeat it multiple times in the 
paragraphs that follow paragraph (e)(3) (that is, paragraphs (e)(3)(i), 
(ii), and (iii)).
    The exception for the first type of equipment (hi-rail vehicles) 
was proposed in the NPRM as paragraph (e)(2) of this section, but has 
been modified in this final rule for clarity and in response to 
comments. See Sec.  214.336(e)(3)(i) of this final rule. A hi-rail 
vehicle is defined by 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.'' 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 vehicle 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 
proposed in the NPRM that adjacent-track on-track safety not be 
required for roadway work groups engaged in a common task with a hi-
rail vehicle. Additionally, FRA proposed that, 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.
    The final rule adopts this proposed exception, but limits it to 
those hi-rail vehicles being used only for inspection or minor 
correction purposes. This new limitation is imposed in response to 
comments from BMWED and BRS that this restriction intended by the 
consensus language, and that failing to impose this limitation would 
permit work to be performed by hi-rail vehicles that is equally as 
distracting (such as a thermite welding crew working out of the back of 
a large hi-rail vehicle work platform) as that performed by other types 
of on-track, self-propelled equipment or coupled equipment subject to 
the requirements of this section. FRA has added a definition of the 
term ``minor correction purposes'' to paragraph (a)(3) of this section 
for additional clarity. Additionally, paragraph (e)(3)(i) has been 
revised for clarity by adding the parenthetical ``(other than a 
catenary maintenance

[[Page 74608]]

tower vehicle)'' after the words ``a hi-rail vehicle'' because some 
catenary maintenance tower vehicles are also hi-rail vehicles, and FRA 
intends that roadway workers engaged in a common task with this subset 
of hi-rail vehicles are instead subject to the different conditions 
imposed in paragraph (e)(3)(iii).
    Finally, as discussed above in Section VI.D.2 of this preamble, in 
response to the concern raised by AAR (and a similar concern raised by 
APTA) that a hi-rail vehicle that is operated within the same working 
limits but a considerable distance away from the distractions of the 
roadway work group would not qualify for the exception, FRA has 
modified the language in proposed paragraph (e)(2) of the NPRM (now in 
paragraph (e)(3)), so as to permit the exception to still apply if 
certain conditions are met. In this situation, this final rule requires 
that the groups conduct an on-track safety job briefing to determine if 
adjacent-controlled-track on-track safety is necessary for the excepted 
group. The determination as to whether on-track safety is necessary for 
the excepted group shall be made by the roadway worker in charge of the 
working limits, rather than by the roadway worker in charge of the 
entering group. The roadway worker in charge of the working limits has 
the discretion to require on-track safety for the excepted group; 
however, if the two groups are in such proximity where the ability of 
the roadway workers in the excepted group to hear or see approaching 
trains and other on-track equipment is impaired by background noise, 
lights, sight obstructions or any other physical conditions caused by 
the equipment, then this exception does not apply, regardless of the 
roadway worker in charge's initial determination, and adjacent-
controlled-track on-track safety must be provided to both groups.
    The second type of equipment (``automated inspection cars'') is a 
new exception on which FRA had sought comment in the NPRM. See Sec.  
214.336(e)(3)(ii); 74 FR 61641, 61648. As discussed in Section VI.D.3, 
above, AAR had requested in its comments on the first (July 17, 2008) 
NPRM that the exception for hi-rail vehicles 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-rail 
vehicles. AAR suggested that FRA expand the hi-rail vehicle exception 
by adding ``or self-propelled track geometry or detector car'' after 
``a hi-rail vehicle.'' In seeking comments on AAR's request in the 
November 25, 2009 NPRM, FRA noted that ``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.'' 74 FR 61641.
    BMWED and BRS commented that they believed that the distractions 
are dissimilar, in that the detector cars are larger (reducing 
visibility) and much louder than a hi-rail pickup, and could therefore 
affect a person's ability to detect the approach of a train. 
Additionally, they note that there are other operators of roadway 
maintenance machines performing a common task with such detection 
equipment who will also be at risk. APTA expressed support for 
expanding the ``hi-rail vehicle'' exception to self-propelled detector 
(and ``inspection-type'') cars, noting its belief that self-propelled 
detector cars are under the same circumstances as hi-rail vehicles, and 
thus, should be granted the same exemption.
    FRA has decided to adopt an exception in new paragraph (e)(3)(ii) 
for ``an automated inspection car being used for inspection or minor 
correction purposes'' because the level of distraction posed by the 
task of inspecting or performing minor correction is the same, and if 
there are other roadway maintenance machines (presumably on-track, 
self-propelled equipment or coupled equipment not meeting the 
exception) performing a common task with such equipment, then the 
roadway work group would be subject to the requirements of this section 
by virtue of the presence of the other equipment. An automated 
inspection car includes rail-mounted, non-highway, self-propelled or 
coupled equipment whose primary purpose is to take measurements or 
collect data concerning the railroad right of way, such as rail-bound 
track geometry cars, gage restraint measurement system cars, and rail 
flaw detector cars. It does not generally include a locomotive equipped 
with vehicle-track interaction because the primary purpose of that 
locomotive is to haul freight or passenger cars, rather than to take 
measurements or collect data concerning the railroad right of way. If, 
however, such locomotive is hauling only a rail-bound geometry car that 
is taking measurements and collecting data along the railroad right-of-
way, then this coupled equipment would be considered an automated 
inspection car for purposes of this section. Additionally, FRA 
considered that inspection or minor correction work performed by a 
roadway work group with this type of equipment would clearly not have 
triggered the requirement for adjacent-track on-track safety under the 
former Sec.  214.335(c) (as this would not have been considered ``large 
scale maintenance or construction'').
    The third type of equipment (catenary maintenance tower cars or 
vehicles) was proposed in the NPRM as paragraph (e)(3) of this section, 
and has been modified in this final rule for clarity and consistency. 
See Sec.  214.336(e)(3)(iii) of the final rule. FRA had proposed in the 
NPRM that an exception be adopted for a catenary maintenance tower car 
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. As discussed in Section IV of this preamble and in the NPRM, 
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.
    No comments were received on this exception, and FRA has adopted 
the proposed exception with two modifications for clarity, along with 
other changes for consistency with the hi-rail vehicle exception 
(including moving similar language from the proposal for hi-rail 
vehicles and the proposal for catenary maintenance tower cars into 
introductory paragraph (e)(3)). First, the words ``or vehicle'' have 
been added to the end of ``catenary maintenance tower car'' to clarify 
that some of these maintenance machines are railroad cars and others 
are vehicles, but both are subject to the conditions of this exception. 
Second, FRA is requiring that all of the on-ground workers engaged in 
the common task (other than those performing work in accordance with 
another exception in paragraph (e) of this section), rather than ``one 
or more roadway workers,'' be positioned within the gage of the 
occupied track for the sole purpose of applying or removing grounds. 
This language is necessary because otherwise, one could interpret that 
as long as one of the roadway workers was positioned in the gage of the 
occupied track, the rest were permitted to be outside of the gage. Note 
that these roadway workers are permitted to break the vertical plane of 
the rail of the occupied track in order to apply or remove a ground (as 
it is not always possible to do so without

[[Page 74609]]

breaking the plane of the rail) as long as they would still be 
positioned for the most part within the gage of the occupied track 
(i.e., standing, kneeling, sitting, or squatting with both feet between 
the rails of the occupied track).
Paragraph (f), Procedures for Components of Roadway Maintenance 
Machines 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 had changed the term to ``roadway maintenance 
machines'' in the language proposed in the NPRM to clarify that this 
prohibition is meant to be broad and includes hi-rail vehicles that 
would otherwise come under the exception in paragraph (e)(2)(ii). 
Further, FRA clarified in the NPRM that the prohibition is not meant to 
be so broad as to forbid a roadway worker from using 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 urged 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 tools or equipment 
could be readily removed, the employee must not foul the track with 
those tools or equipment under train approach warning provided by 
watchmen/lookouts (Sec.  214.329). Because the issue of fouling a track 
with heavier tools or equipment is not unique to the adjacent-
controlled-track context, FRA has decided to address the issue in the 
larger RWP rulemaking in the section concerning the appropriate use of 
train approach warning (Sec.  214.329). In the event that FRA is able 
to address the issue broadly in that section, FRA has moved the 
language proposed in paragraph (d) to paragraph (f), and vice versa, so 
that this paragraph would be able to be deleted without leaving a gap 
in the rule text paragraphs.
    Additionally, in order to avoid a potential conflict with an 
existing section in part 214, and to make the final rule consistent 
with that language, FRA has added the introductory phrase ``[e]xcept as 
provided for in Sec.  214.341(c),'' and the modifying language ``a 
component of'' ahead of the remainder of the requirement in this final 
rule that ``a roadway maintenance machine shall not foul an adjacent 
controlled track unless working limits have been established on the 
adjacent controlled track and there are no movements permitted within 
the working limits by the roadway worker in charge that would affect 
any of the roadway workers engaged in a common task with such 
machine.'' This language has also been modified from that proposed in 
the NPRM by (1) making ``roadway maintenance machines'' singular to 
ensure that the prohibition is applied to each machine; (2) 
substituting ``within the working limits'' for ``through the working 
limits'' to ensure that a movement that is permitted within the working 
limits, but not all the way ``through'' would still trigger the 
prohibition against fouling in this paragraph; and (3) adding ``that 
would affect any of the roadway workers engaged in a common task with 
such machine'' at the end of the sentence so that a movement permitted 
within the limits of the authority, but short of the group's working 
limits (that would therefore not affect the roadway workers) would not 
trigger this prohibition.

VIII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures in Executive Orders 12866 and 13563 and DOT 
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 
Impact Analysis (RIA) addressing the economic impact of this final 
rule. 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. 4.
    Certain requirements contained in this rule reflect current 
industry practice, restate existing regulations, or both. As a result, 
in calculating the costs of this final rule, FRA has included neither 
the costs of those actions that would be performed voluntarily in the 
absence of a regulation, nor the costs of those actions that are 
required by an existing regulation. Similarly, in estimating the 
benefits of this final rule, FRA has included neither the benefits that 
result from those actions that would be performed voluntarily in the 
absence of a regulation, nor the benefits that result from those 
actions that are required by an existing regulation.
    This analysis includes quantitative measurements and qualitative 
discussions of implementation costs for this final rule. The costs will 
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 will also accrue. The benefits will primarily accrue from a 
reduction in roadway worker casualties (fatalities and injuries). 
Business benefits stemming from avoided train delays and property 
damages will also accrue, as well as benefits from reduced safety stand 
downs.
    At the NPRM stage, FRA found that the accident-reduction benefits 
expected to accrue over the first 20 years of the rule would exceed and 
justify the costs imposed. Cost estimates were based on an uncertain 
level of existing compliance with proposed requirements resulting from 
a strong safety culture. Although FRA requested comments on the actual 
level of such compliance, FRA received no comments. However, FRA 
reviewed its methodology and found that some improvements could be 
made, making the analysis more robust.
    First, FRA increased the data period on which it based its estimate 
of fatalities, from a four-year period to a ten-year period, 1999-2008. 
This reduced the expected number of fatalities avoidable (had new Sec.  
214.336 been in effect) from 1.0 per year to 0.6 per year. It should be 
noted that FRA also added a benefit in this final rule for the revised 
on-track safety job briefing requirements in Sec.  214.315, as the 
revised requirements will affect roadway workers broadly, and not just 
those required to establish adjacent-track on-track safety. Then, FRA 
estimated the number of injuries avoidable directly from casualty data, 
instead of from a loose ratio of injuries to fatalities. This reduced 
the number of injuries avoidable per year from approximately 11 to 
9.36. FRA then applied recently updated values for monetizing benefits 
from casualties avoided. This entailed increasing the value of a 
statistical life (VSL) from $6.0

[[Page 74610]]

million to $6.2 million, increasing the ratio of estimated costs per 
Abbreviated Injury Scale Level 3 injuries from 0.0595 times VSL to 
0.105 times VSL, and using a range of VSL from 55 percent to 145 
percent of the basic VSL value, $6.2 million, for sensitivity analysis.
    For the 20-year period analyzed, the estimated quantified cost that 
will be imposed on industry totals $285.7 million, with a present value 
(PV) (7 percent) of $151.4 million, and a PV (3 percent) of $212.6 
million. For the same 20-year period, the estimated quantified benefits 
total $286.2 million, with a PV (7 percent) of approximately $151.6 
million and a PV (3 percent) of $212.9 million. Based on the annual 
fatality rate leading up to this rulemaking, this analysis estimates 
that there will be 10.3 fewer roadway worker fatalities over the next 
20 years. In addition, it estimates that this final rule will reduce 
roadway worker injuries by 182 over the next 20 years.
    This analysis has been conducted using an implicit assumption that 
railroads continue existing maintenance and scheduling practices. In 
the past, when FRA has promulgated a new regulation, railroads have 
adapted their operations over time to reduce the adverse impact of the 
regulation. FRA is not in a position to predict how railroads may adapt 
their operations, but, clearly, the railroads have an incentive to 
reduce the adverse impact of such events as slowing a train as it 
passes a work site. Hence, FRA believes that the railroads also have 
the ability to reduce such impacts. Therefore, this analysis has been 
conservative in using current operating and maintenance practices when 
calculating the burdens from this final rule.
    The following table presents the estimated quantified costs broken 
down by section of the RIA and by section of the rule:

------------------------------------------------------------------------
                                                  PV rate,     PV rate,
         Estimated cost of final rule               3%*          7%*
------------------------------------------------------------------------
9.2 Job Briefings--Sec.   214.315.............        $1.94        $1.38
9.4 On-Track Safety--Sec.   214.336...........       207.60       147.83
9.4 Other (Signalmen, Lone Workers)--Sec.              2.76         1.97
 Sec.   214.315/336...........................
9.4 Training--Sec.   214.336..................         0.25         0.18
                                               -------------------------
    Total.....................................       212.55       151.36
------------------------------------------------------------------------
* Dollars are in millions and are discounted over a 20-year period.

    FRA believes that introduction of wireless technologies, such as 
Positive Train Control, may offer opportunities to reduce costs in the 
years to come. For instance, such wireless technologies may reduce the 
necessity to post watchmen/lookouts because automatic notification of 
crews may be possible. FRA is aware of at least two railroads that 
currently use or have successfully tested an advanced automatic warning 
system for roadway workers.
    The table below presents the estimated benefits associated with 
this final rule by section of the RIA and by benefit category:

------------------------------------------------------------------------
                                                  PV rate,     PV rate,
       Estimated benefits of final rule             3%*          7%*
------------------------------------------------------------------------
10.1 Casualty Mitigation (Sec.   214.336)--          $43.72       $31.13
 Fatality (Struck by Train)...................
10.2 Casualty Mitigation (Sec.   214.336)--           71.62        51.00
 Injury (Struck by Train).....................
10.3 Casualty Mitigation (Sec.   214.336)--           15.30        10.90
 Injury (Struck by Object Other Than Train)...
10.4 Adjacent Track Revision..................         9.79         6.97
10.5 Damage Reduction.........................         0.89         0.64
10.6 Reporting/Recordkeeping--Cost Savings....         0.02         0.01
10.7 Business Industry Benefit................        46.71        33.26
10.8 Reduction in Safety Stand Downs..........        19.98        14.23
10.9 Job Briefing Fatality Prevention (Sec.            3.69         2.63
 214.315).....................................
10.9 Job Briefing Injury Prevention (Sec.              1.16         0.83
 214.315).....................................
                                               -------------------------
    Total.....................................       212.88       151.59
------------------------------------------------------------------------
* Dollars are in millions and are discounted over a 20-year period.

    In accordance with guidance from DOT, the RIA casualty prevention 
benefits are based on the value of a statistical life being $6.2 
million. Office of Management and Budget (OMB) Circular A-4 states that 
the majority of studies on the value of a statistical life use values 
that range from approximately $1 million to $10 million. Use of a 
higher or lower value of a statistical life could significantly affect 
potential safety benefits and, ultimately, the relative ratio of costs 
to benefits for this rulemaking. In recognition of this potential 
impact and the imprecision of assumptions regarding the value of a 
statistical life, FRA also analyzed the sensitivity of its findings by 
evaluating safety benefits using the values of $3.41 million and $8.99 
million (i.e., the DOT value of a statistical life ($6.2 million) plus 
or minus 45 percent).
    Applying $6.2 million for the value of a statistical life produces 
a total benefit of $286.2 million, with a discounted value of $151.6 
million (PV, 7 percent) or $212.9 million (PV, 3 percent). If $3.41 
million is used for the value of a statistical life, then the total 
benefit would be $204.2 million with a discounted value of $108.2 
million (PV, 7 percent) or $151.9 million (PV, 3 percent). If $8.99 
million is used for the value of a statistical life, then the total 
benefit would be $368.1 million with a discounted value of $195.0 
million (PV, 7 percent) or $273.8 million (PV, 3 percent). The 
following table represents the range of benefits according to discount 
rate:

[[Page 74611]]



------------------------------------------------------------------------
                                            3% Discount     7% Discount
         Benefit range analysis                rate            rate
------------------------------------------------------------------------
$3.41 Million Value of Statistical Life.    $151,906,156    $108,169,968
$8.99 Million Value of Statistical Life.     273,849,809     195,004,112
------------------------------------------------------------------------

    FRA finds that the estimated quantified benefits will exceed the 
estimated quantified costs. Quantitative methodologies such as this 
benefit-cost analysis are a useful way of organizing and comparing the 
favorable and unfavorable effects of regulations like this one. A 
benefit-cost analysis does not provide a policy answer, but rather 
defines and displays a useful framework for debate and review.\15\
---------------------------------------------------------------------------

    \15\ AEI-Brookings Joint Center for Regulatory Studies, 
``Interests of Amici Curiae: American Trucking Associations, Inc. et 
al., v. Carol Browner, Administrator of the Environmental Protection 
Agency, et al.,'' July 21, 2000, p. 8.
---------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 (67 FR 53461, Aug. 16, 2002) require agency review of 
proposed and final rules to assess their impact on small entities. FRA 
has prepared and placed in the docket a Certification Statement 
indicating that this final rule is not expected to have a significant 
economic impact on a substantial number of small entities. 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. 4.
    In order to determine the significance of the economic impact for 
the final rule's Regulatory Flexibility Act requirements, FRA invited 
comments from all interested parties concerning data and information 
regarding the potential economic impact caused by the proposed rule, 
during the comment period. No comments were received pertaining to the 
potential impact on small entities.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for profit ``line-haul 
railroad'' that has fewer than 1,500 employees, a ``short line 
railroad'' with fewer than 500 employees, or a ``commuter rail system'' 
with annual receipts of less than seven million dollars. See ``Size 
Eligibility Provisions and Standards,'' 13 CFR part 121, subpart A. 
Additionally, 5 U.S.C. 601(5) defines as ``small entities'' governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000. Federal agencies 
may use a different standard for small entities, in consultation with 
SBA and in conjunction with public comment. SBA's ``size standards'' 
may be altered by Federal agencies upon consultation with SBA and in 
conjunction with public comment. Pursuant to that authority to alter 
the ``size standards,'' FRA has published a final statement of agency 
policy that formally establishes ``small entities'' or ``small 
businesses'' as being railroads, contractors, and hazardous materials 
shippers that meet the revenue requirements of a Class III railroad as 
set forth in 49 CFR 1201.1-1, which is $20 million or less in 
inflation-adjusted annual revenues, and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part 
209. The $20-million limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad carrier. Railroad 
revenue is adjusted for inflation by applying a revenue deflator 
formula in accordance with 49 CFR 1201.1-1. FRA is using this 
definition of ``small entity'' for regulatory flexibility purposes in 
this rulemaking.
    There are approximately 668 small railroads.\16\ 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 small 
railroads 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 final 
rule's 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.
---------------------------------------------------------------------------

    \16\ Approximately 718 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 will be 
affected by this final 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 final rule will ultimately get passed on to the pertinent 
railroad. Most likely, the contracts will be written to reflect that, 
and the contractor will bear no additional burden for the final 
requirements. In addition, at the proposed rule stage, FRA requested 
information related to contractors and the burdens that might impact 
them as a result of the proposed rule and received none. Hence, FRA is 
confident that the final rule's requirements, which have not changed 
significantly from those proposed in the NPRM, will not have an impact 
on any contractors that will perform track work on a small railroad.
    No other small businesses (non-railroads) are expected to be 
impacted by this final rule.
    The impacts from this regulation are primarily a result of the 
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 contractors generally pass on costs 
to the railroads for which

[[Page 74612]]

they perform work, there should be no impact on contractors.
    Having made these determinations, FRA certifies that this final 
rule is not expected to have a significant economic impact on a 
substantial number of small entities under 5 U.S.C. 605(b).

C. Paperwork Reduction Act

    The information collection requirements in this final rule are 
being submitted upon publication in the Federal Register for approval 
to 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:

----------------------------------------------------------------------------------------------------------------
                                                                                                         Total
                                                               Total annual        Average time per      annual
            CFR Section              Respondent universe         responses             response          burden
                                                                                                         hours
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.119--Part 214       350 Safety Inspectors  150 forms...........  4 hours.............        600
 Railroad Workplace Safety
 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 programs......  250.................      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 Rdwy. Workers.  16,350,000 briefings  2 minutes per           545,000
                                                                                  briefing.
    --Adjacent-Track Safety         24,500 Rdwy. Workers.  2,403,450 briefings.  30 seconds per           20,029
     Briefings (New Requirement).                                                 briefing.
214.321--Exclusive Track            8,583 Rdwy. Workers..  700,739 written       1 minute............     11,679
 Occupancy--Working Limits.                                 authorities.
214.325--Train Coordination:
    --Establishing Working Limits   50,000 Rdwy. Workers.  36,500                15 seconds..........        152
     through Communication.                                 communications.
214.327--Inaccessible Track:
    --Working Limits on Non-        718 Railroads........  50,000 notifications  10 minutes..........      8,333
     Controlled Track:
     Notifications.
214.336--Procedures for Adjacent-
 Controlled-Track Movements Over
 25 mph (New Requirements)
    --Notifications/Watchmen/       100 Railroads........  10,000 notifications  15 seconds..........         42
     Lookout Warnings.
    --Roadway Worker Communication  100 Railroads........  3,000 communications  1 minute............         50
     with Train Engineers or
     Equipment Operators.
--Procedures for Adjacent-
 Controlled-Track Movements 25 mph
 or less:
    --Notifications/Watchmen/       100 Railroads........  3,000 notifications.  15 seconds..........         13
     Lookout Warnings.
    --Roadway Worker Communication  100 Railroads........  1,500 communications  1 minute............         25
     with Train Engineers or
     Equipment Operators.
--Exceptions to the Requirements
 in Paragraphs (a), (b), and (c)
 for Adjacent-Controlled-Track On-
 Track Safety: Work Activities
 Involving Certain Equipment and
 Purposes:
    --On-Track Job Safety           100 Railroads........  1,030,050 briefings.  15 seconds..........      4,292
     Briefings.
214.337--On-Track Safety            718 Railroads........  2,080,000 statements  30 seconds..........     17,333
 Procedures for Lone Workers:
 Statements by Lone Workers.
214.343/345/347/349/351/353/355--   50,000 Rdwy. Workers.  50,000 tr. Rdwy.      4.5 hours...........    225,000
 Training Requirements.                                     Workers.
    --Additional On-Track Safety    35,000 Rdwy. Workers.  35,000 tr. Rdwy.      5 minutes...........      2,917
     Training (New Requirement).                            Workers.
    --Records of Training.........  50,000 Rdwy. Workers.  50,000 records......  2 minutes...........      1,667
214.503--Good Faith Challenges;
 Procedures for Notification and
 Resolution:
    --Notifications for Non-        50,000 Rdwy. Workers.  125 notifications...  10 minutes..........         21
     Compliant Roadway Maintenance
     Machines or Unsafe Condition.
    --Development of Resolution     644 Railroads........  10 procedures.......  2 hours.............         20
     Procedures.
214.505--Required Environmental     644 Railroads/200      500 lists...........  1 hour..............        500
 Control and Protection Systems      Contractors.
 for New On-Track Roadway
 Maintenance Machines with
 Enclosed Cabs:
    --Designations/Additions to     644 Railroads/200      150 additions/        5 minutes...........         13
     List.                           Contractors.           designations.

[[Page 74613]]

 
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 Triggering  703 Railroads........  200 mechanisms......  5 minutes...........         17
     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.
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. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan at (202) 
493-6292 or Ms. Kimberly Toone at (202) 493-6132 or via email at the 
following addresses: [email protected] and [email protected].
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via email to OMB at the following address: [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final 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.
    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 this 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 final rule 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 final rule 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 final rule alters the preemptive effect of 
the RWP Rule so these provisions have the same preemptive effect as the 
1996 RWP Rule in accordance with the statute.
    FRA notes that the above factors have been considered throughout 
the development of this final rule 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 final rule, 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 final rule. 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 final rule is in 
accordance with the principles and

[[Page 74614]]

criteria contained in Executive Order 13132.

E. Environmental Impact

    FRA has evaluated this final rule 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 final rule 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. 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 final rule 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 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``[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'' detailing the 
effect on State, local, and Tribal governments and the private sector. 
For the year 2010, this monetary amount of $100,000,000 has been 
adjusted to $140,800,000 to account for inflation. This final rule will 
not result in the expenditure by State, local, and Tribal governments, 
in the aggregate, or by the private sector, of $140,800,000 or more 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 final rule in accordance with Executive 
Order 13211. FRA has determined that this final rule 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 final rule on foreign 
commerce and believes that its requirements are consistent with the 
Trade Agreements Act of 1979. 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 Final Rule

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

PART 214--[AMENDED]

0
1. The authority 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 A--General


Sec.  214.4  [Removed]

0
2. Section 214.4 is removed.

0
3. Section 214.7 is amended by adding introductory text to read as 
follows:


Sec.  214.7  Definitions.

    Unless otherwise provided, as used in this part--
* * * * *

Subpart C--Roadway Worker Protection

0
4. 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.
* * * * *

0
5. Section 214.335 is amended by removing paragraph (c) and revising 
the section heading to read as follows:

[[Page 74615]]

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

* * * * *

0
6. Section 214.336 is added to read as follows:


Sec.  214.336  On-track safety procedures for certain roadway work 
groups and adjacent tracks.

    (a) Procedures; general. (1) General rule. 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 
on-track, self-propelled equipment or coupled equipment on an occupied 
track. The required on-track safety shall be established through Sec.  
214.319 (Working limits, generally) or Sec.  214.329 (Train approach 
warning provided by watchmen/lookouts) and as more specifically 
described in this section.
    (2) Special circumstances arising in territories with at least 
three tracks, if an occupied track is between two adjacent tracks, at 
least one of which is an adjacent controlled track. (i) If an occupied 
track has two adjacent controlled tracks, and one of these adjacent 
controlled tracks has one or more train or other on-track equipment 
movements authorized or permitted at a speed of 25 mph or less, and the 
other adjacent controlled track has one or more concurrent train or 
other on-track equipment movements authorized or permitted at a speed 
over 25 mph, the more restrictive procedures in paragraph (b) of this 
section apply.
    (ii) If an occupied track has an adjacent controlled track on one 
side (Side X), and a non-controlled track whose track center is spaced 
19 feet or less from the track center of the occupied track on the 
other side (Side Y), the affected roadway workers must treat the non-
controlled track on Side Y as an adjacent controlled track for purposes 
of this section.
    (3) Definitions. 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. Note, however, that under the special circumstances specified in 
paragraph (a)(2)(ii) of this section, a non-controlled track whose 
track center is spaced 19 feet or less from the track center of the 
occupied track must be treated as an adjacent controlled track for 
purposes of this section.
    Adjacent track means a controlled or non-controlled track whose 
track center is spaced less than 25 feet from the track center of the 
occupied track.
    Inter-track barrier means a continuous barrier of a permanent or 
semi-permanent nature that spans the entire work area, that is at least 
four feet in height, and that is of sufficient strength to prevent a 
roadway worker from fouling the adjacent track.
    Minor correction means one or more repairs of a minor nature, 
including but not limited to, spiking, anchoring, hand tamping, and 
joint bolt replacement that is accomplished with hand tools or handheld 
pneumatic tools only. The term does not include welding, machine 
spiking, machine tamping, or any similarly distracting repair.
    Occupied track means a track on which on-track, self-propelled 
equipment or coupled equipment is authorized or permitted to be located 
while engaged in a common task with a roadway work group with at least 
one of the roadway workers on the ground.
    (b) Procedures for adjacent-controlled-track movements over 25 mph. 
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 
worker in the roadway work group that is affected by such movement must 
comply with the following procedures:
    (1) Ceasing work and occupying a predetermined place of safety. 
Except for the work activities as described in paragraph (e) of this 
section, each affected roadway worker shall, as described in Table 1 of 
this section, cease all on-ground work and equipment movement that is 
being performed on or between the rails of the occupied track or on one 
or both sides of the occupied track, and occupy a predetermined place 
of safety upon receiving either a watchman/lookout warning or, 
alternatively, a notification that the roadway worker in charge intends 
to permit one or more train or other on-track equipment movements 
through the working limits on the adjacent controlled track.
    (2) Resuming work. (i) An affected roadway worker may resume on-
ground work and equipment movement (on or between the rails of the 
occupied track or on one or both sides of the occupied track as 
described in Table 1 of this section) only after the trailing-end of 
all trains or other on-track equipment moving on the adjacent 
controlled track (for which a warning or notification has been received 
in accordance with paragraph (b)(1) of this section) has passed and 
remains ahead of that roadway worker.
    (ii) If the train or other on-track equipment stops before its 
trailing-end has passed all of the affected roadway workers in the 
roadway work group, the work to be performed (on or between the rails 
of the occupied track or on one or both sides of the occupied track as 
described in Table 1 of this section) 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 a 
member of the train crew or the on-track 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 or permitted 
to move on an adjacent controlled track at a speed of 25 mph or less, 
each roadway worker in the roadway work group that is affected by such 
movement must comply with the procedures listed in paragraph (b) of 
this section, except that equipment movement on the rails of the 
occupied track and on-ground work performed exclusively between the 
rails (i.e., not breaking the plane of the rails) of the occupied track 
may continue, provided that no on-ground work is performed within the 
areas 25 feet in front of and 25 feet behind any on-track, self-
propelled equipment or coupled equipment permitted to move on the 
occupied track.
    (d) 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.
    (e) Exceptions to certain requirements for adjacent-controlled-
track on-track safety. No on-track safety (other than that required by 
paragraph (f) of this section or provided under paragraph (d) of this 
section) is required by paragraphs (a) through (c) of this section for 
an adjacent controlled track during the times that the roadway work 
group is exclusively performing one or more of the following work 
activities:
    (1) On-ground work performed on a side of the occupied track 
meeting specified condition(s). A roadway work group with all of its 
on-ground roadway workers (other than those performing work in 
accordance with another exception in paragraph (e) of this section) 
performing work while exclusively positioned on a side of the

[[Page 74616]]

occupied track as follows and as further specified in Table 1 of this 
section:
    (i) The side with no adjacent track;
    (ii) The side with one or more adjacent tracks, the closest of 
which has working limits on it and no movements permitted within such 
working limits by the roadway worker in charge; or
    (iii) The side with one or more adjacent tracks, provided that that 
it has an inter-track barrier between the occupied track and the 
closest adjacent track on that side.
    (2) Maintenance or repairs performed alongside machines or 
equipment on the occupied track. One or more roadway workers performing 
maintenance or repairs alongside a roadway maintenance machine or 
coupled equipment, provided that such machine or equipment would 
effectively prevent the worker from fouling the adjacent controlled 
track on the other side of such equipment, and that such maintenance or 
repairs are performed while positioned on a side of the occupied track 
as described in paragraph (e)(1)(i), (ii), or (iii) and Table 1 of this 
section.
    (3) Work activities involving certain equipment and purposes. One 
or more on-ground roadway workers engaged in a common task on an 
occupied track with on-track, self-propelled equipment or coupled 
equipment consisting exclusively of one or more of the types of 
equipment described in paragraphs (e)(3)(i) through (iii) of this 
section. If such a roadway work group (``excepted group'') is 
authorized or permitted to operate on the same occupied track and 
within the working limits of a separate roadway work group performing 
work that is subject to the requirements of this section (``non-
excepted group'') or vice versa (i.e., a non-excepted group is 
authorized or permitted to operate on the same occupied track and 
within the working limits of an excepted group), the groups must 
conduct an on-track safety job briefing to determine if adjacent-
controlled-track on-track safety is necessary for the excepted group. 
Such determination shall be made by the roadway worker in charge of the 
working limits; however, if the groups are in such proximity where the 
ability of the roadway workers in the excepted group to hear or see 
approaching trains and other on-track equipment is impaired by 
background noise, lights, sight obstructions or any other physical 
conditions caused by the equipment, then this exception does not apply, 
and adjacent-controlled-track on-track safety must be provided to both 
groups. This exception otherwise applies to work activities involving 
one or more of the following types of equipment:
    (i) A hi-rail vehicle (other than a catenary maintenance tower 
vehicle) being used for inspection or minor correction purposes, 
provided that such hi-rail vehicle is not coupled to one or more 
railroad cars. In accordance with Sec.  214.315(a), where multiple hi-
rail vehicles being used for inspection or minor correction are engaged 
in a common task, the on-track safety job briefing shall include 
discussion of the nature of the work to be performed to determine if 
adjacent-controlled-track on-track safety is necessary.
    (ii) An automated inspection car being used for inspection or minor 
correction purposes.
    (iii) A catenary maintenance tower car or vehicle, provided that 
all of the on-ground workers engaged in the common task (other than 
those performing work in accordance with another exception in paragraph 
(e) of this section) are positioned within the gage of the occupied 
track for the sole purpose of applying or removing grounds.
    (f) Procedures for components of roadway maintenance machines 
fouling an adjacent controlled track. Except as provided for in Sec.  
214.341(c), a component of a roadway maintenance machine shall not foul 
an adjacent controlled track unless working limits have been 
established on the adjacent-controlled-track and there are no movements 
permitted within the working limits by the roadway worker in charge 
that would affect any of the roadway workers engaged in a common task 
with such machine.
BILLING CODE 4910-06-P

[[Page 74617]]

[GRAPHIC] [TIFF OMITTED] TR30NO11.160


[[Page 74618]]


[GRAPHIC] [TIFF OMITTED] TR30NO11.161


[[Page 74619]]


[GRAPHIC] [TIFF OMITTED] TR30NO11.162

BILLING CODE 4910-06-C

0
7. Appendix A to part 214 is amended by revising the entry under 
subpart C for Sec.  214.315, by removing the entry under subpart C for 
Sec.  214.335(c), by adding an entry under subpart C for Sec.  214.336, 
and by revising footnote 1 and adding footnote 2 to read as follows:

[[Page 74620]]



         Appendix A to Part 214--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                               Willful
                  Section \2\                    Violation    violation
------------------------------------------------------------------------
 
                              * * * * * * *
   Subpart C--Roadway Worker Protection Rule
 
                              * * * * * * *
214.315 Supervision and communication:
    (a)(1) Complete failure of employer to            5,000       10,000
     provide on-track safety job briefing.....
    (a)(2) Partial failure of employer to             2,000        4,000
     provide on-track safety job briefing.....
 
                              * * * * * * *
214.336 On-track safety procedures for certain
 roadway work groups and adjacent tracks:
    (a)(1) Failure to establish on-track              5,000       10,000
     safety for each adjacent controlled track
     as required under this section...........
        (2)(i) Failure to implement the more          1,500        3,000
         restrictive procedures required by
         paragraph (b) during special
         circumstance of concurrent
         movement(s) on two adjacent
         controlled tracks where one movement
         is authorized or permitted at a speed
         over 25 mph..........................
         (ii) Failure to establish on-track           2,000        4,000
         safety on an adjacent track that is
         non-controlled and spaced 19 feet or
         less from the occupied track for
         special circumstance where there is a
         controlled track on the opposite side
         of an occupied track.................
    (b)(1) Failure of roadway worker to cease         5,000       10,000
     work and occupy a predetermined place of
     safety upon receiving a warning or
     notification of train or other on-track
     equipment movement(s) on an adjacent
     controlled track.........................
     (2) Resumption of work before trailing-          5,000       10,000
     end of all applicable movements has
     passed the roadway worker................
    (c) Failure to maintain 25-foot spacing           2,000        4,000
     between on-track, self-propelled
     equipment or coupled equipment and
     roadway worker(s) on the occupied track
     during an adjacent-controlled-track
     movement at 25 mph or less...............
    (d) Failure to implement on-track safety          2,000        4,000
     procedures on an adjacent track when
     deemed necessary by the roadway worker in
     charge of providing on-track safety for a
     roadway work group.......................
    (e).......................................          (1)          (1)
    (f) Roadway maintenance machine component         5,000       10,000
     fouling an adjacent controlled track
     without working limits or with movements
     permitted within working limits..........
 
                              * * * * * * *
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A. Failure to observe any condition(s) of an
  exception set forth in paragraph (e) of Sec.   214.336 will deprive
  the railroad or contractor of the benefit of the exception and make
  the railroad or contractor, and any responsible individuals, liable
  for penalty under the particular regulatory section(s) from which the
  exception would otherwise have granted relief.
\2\ The penalty schedule uses section numbers from 49 CFR part 214. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.


    Issued in Washington, DC, on November 17, 2011.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2011-30250 Filed 11-29-11; 8:45 am]
BILLING CODE 4910-06-P