[Federal Register Volume 81, Number 112 (Friday, June 10, 2016)]
[Rules and Regulations]
[Pages 37840-37892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13057]
[[Page 37839]]
Vol. 81
Friday,
No. 112
June 10, 2016
Part III
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 214
Railroad Workplace Safety; Roadway Worker Protection Miscellaneous
Revisions (RRR); Final Rule
Federal Register / Vol. 81 , No. 112 / Friday, June 10, 2016 / Rules
and Regulations
[[Page 37840]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 214
[Docket No. FRA-2008-0086]
RIN 2130-AB89
Railroad Workplace Safety; Roadway Worker Protection
Miscellaneous Revisions (RRR)
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule; retrospective regulatory review (RRR).
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SUMMARY: FRA is amending its Roadway Worker Protection (RWP) regulation
to resolve interpretative issues that have arisen since the 1996
promulgation of that rule. In particular, this final rule adopts
certain terms, resolves miscellaneous interpretive issues, codifies
certain FRA Technical Bulletins, adopts new requirements governing
redundant signal protections and the movement of roadway maintenance
machinery over signalized non-controlled track, and amends certain
qualification requirements for roadway workers. This final rule also
deletes three outdated incorporations by reference of industry
standards in FRA's Bridge Worker Safety Standards, and cross references
the Occupational Safety and Health Administration's (OSHA) regulations
on the same point.
DATES: This final rule is effective April 1, 2017. The incorporation by
reference of certain publications listed in the rule is approved by the
Director of the Federal Register as of April 1, 2017. Petitions for
reconsideration must be received on or before August 9, 2016. Petitions
for reconsideration will be posted in the docket for this proceeding.
Comments on any submitted petition for reconsideration must be received
on or before September 13, 2016.
ADDRESSES:
Petitions for reconsideration and comments on petitions for
reconsideration: Any petitions for reconsideration to the Federal
Railroad Administrator or comments on petitions for reconsideration
related to this docket may be submitted by any of the following
methods:
Online: Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting
documents.
Fax: 202-493-2251.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington,
DC 20590.
Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9
a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all submissions received will be posted without
change to http://www.regulations.gov including any personal
information. Please see the Privacy Act heading in the SUPPLEMENTARY
INFORMATION section of this document for Privacy Act information
related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
Room W12-140 on the Ground level of the West Building, 1200 New Jersey
Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through
Friday, except Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Joseph Riley, Track Specialist, Track
Division, Office of Safety Assurance and Compliance, FRA, 1200 New
Jersey Avenue SE., RRS-15, Mail Stop 25, Washington, DC 20590
(telephone (202) 493-6357); or Joseph St. Peter, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-10, Mail Stop
10, Washington, DC 20590 (telephone (202) 493-6047 or 202-493-6052).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Executive Order 13563 Retrospective Review
III. Rulemaking Authority and Background of the Existing RWP Rule
IV. Railroad Safety Advisory Committee (RSAC) Overview
V. RWP RSAC Working Group
VI. Proceedings Concerning On-Track Safety Procedures for Adjacent
Tracks
VII. Proceedings in This Rulemaking to Date
VIII. Public Comments Received
A. Comments on NPRM Proposals Not Addressed in the Final Rule
B. Effective Date
C. Other Comments
IX. Section-by-Section Analysis
X. Regulatory Impact and Notices
A. Executive Order 12866, Executive Order 13563 and DOT
Regulatory Policies and Procedures
B. Regulatory Flexibility Act and Executive Order 13272;
Regulatory Flexibility Assessment
C. Paperwork Reduction Act
D. Federalism Implications
E. Environmental Impact
F. Executive Order 12898 (Environmental Justice)
G. Executive Order 13175 (Tribal Consultation)
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Trade Impact
K. Privacy Act
L. Analysis Under 1 CFR Part 51
I. Executive Summary
On August 20, 2012, FRA published a notice of proposed rulemaking
(NPRM) proposing amendments to its regulation on railroad workplace
safety to resolve interpretative issues that have arisen since the 1996
promulgation of the original RWP regulation. 77 FR 50324. As detailed
in the NPRM, FRA based its proposed amendments, in large part, on
recommendations of FRA's Railroad Safety Advisory Committee (RSAC).
Noteworthy RSAC recommendations that FRA is adopting in this final
rule include: A job briefing requirement regarding the accessibility of
the roadway worker in charge; the adoption of procedures for how
roadway workers cross railroad track; a new exception for railroads
conducting snow removal and weed spraying operations; a clarification
of the existing ``foul time'' provision; three new permissible methods
of establishing working limits on non-controlled track; the expanded
use of individual train detection at controlled points; an amended
provision governing train audible warnings for roadway workers; and,
amendment of certain roadway worker training requirements.
FRA is also addressing other items on which RSAC did not reach
consensus and certain miscellaneous other revisions proposed in the
NPRM. Noteworthy among these items are: Redundant signal protections;
the electronic display of working limits authorities; amendments to the
existing provision governing the qualification of roadway workers in
charge; a new provision establishing minimum safety standards governing
the use of ``occupancy behind'' or ``conditional'' working limit
authorities; the phase-out of the use of definite train location and
informational train line-ups; amendments to clarify the existing
roadway worker protection and blue signal protection requirements for
work performed within shop areas; the use of existing tunnel niches and
clearing bays as a place of safety; and, the use of other railroad
tracks as a place of safety. This final rule also deletes certain
outdated incorporations by reference of personal protective equipment
standards in FRA's Bridge Worker Safety Standards
[[Page 37841]]
at subpart B of part 214, and instead cross references the relevant
OSHA's regulations.
For the 20-year period analyzed, the estimated quantified costs to
the railroad industry total $20,965,962, discounted to $11,491,330
(present value (PV), 7 percent) and $15,832,099 (PV, 3 percent). For
the same 20-year period, the estimated quantified benefits total
$53,109,702, discounted to $28,132,247 (PV, 7 percent) and $39,506,913
(PV, 3 percent). Net benefits total $32,143,740, discounted to
$16,640,917 (PV, 7 percent) and $23,674,814 (PV, 3 percent). Table 1
presents the estimated quantified costs and benefits broken down by
section of the final rule.
[GRAPHIC] [TIFF OMITTED] TR10JN16.000
II. Executive Order 13563 Retrospective Review
Consistent with the requirements of Executive Order 13563, this
final rule modifies the existing RWP requirements, in part, based on
what FRA learned from its retrospective review of the existing
regulation. Executive Order 13563 requires agencies to review existing
regulations ``that may be outmoded, ineffective, insufficient, or
excessively burdensome, and to modify, streamline, expand, or repeal
them in accordance with what has been learned.''\1\ As a result of its
retrospective review, FRA is deleting or sun setting several sections
of the existing RWP regulation it believes to be outdated or
superfluous (Sec. Sec. 214.302, 214.305, 214.331 and 214.333), and is
also increasing flexibility for compliance in several other sections
(Sec. Sec. 214.317, 214.327 and 214.337).
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\1\ Executive Order No. 13563, 76 FR 3821, Jan. 21, 2011;
available online at: http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
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III. Rulemaking Authority and Background of the Existing RWP Rule
The Federal Railroad Safety Act of 1970, as codified at 49 U.S.C.
20103, provides that, ``[t]he Secretary of Transportation, as
necessary, shall prescribe regulations and issue orders for every area
of railroad safety supplementing laws and regulations in effect on
October 16, 1970.'' The Secretary's responsibility under this provision
and the balance of the railroad safety laws have been delegated to the
FRA Administrator. 49 CFR 1.89(a). As noted in the NPRM, in the field
of railroad workplace safety, FRA has traditionally pursued a
conservative course of regulation, relying upon the industry to
implement suitable railroad safety rules and mandating in the broadest
ways that employees be ``instructed'' in the requirements of those
rules and that railroads create and administer programs of operational
tests and inspections to verify compliance. This approach is based on
several factors, including recognition of the strong interest of
railroads in avoiding costly accidents and personal injuries, the
limited resources available to FRA to directly enforce railroad safety
rules, and the apparent success of management and employees
accomplishing most work in a safe manner.
Over the years, however, it became necessary to codify certain
requirements, either to remedy
[[Page 37842]]
perceived shortcomings in the railroads' rules, emphasize the
importance of compliance, or give FRA a more direct means of promoting
compliance. A detailed description of the background and history of
FRA's RWP regulation is found in the NPRM.
IV. RSAC Overview
As explained in the preamble to the NPRM, FRA's RSAC provides a
forum for collaborative rulemaking and program development. The RSAC
includes representatives from all of the railroad industry's major
stakeholder groups, including railroads, labor organizations, suppliers
and manufacturers, and other interested parties.\2\ When appropriate,
FRA assigns a task to the RSAC, and, after consideration and debate,
the RSAC may accept or reject the task. If the task is accepted, the
RSAC establishes a working group that possesses the appropriate
expertise and representation of interests to develop consensus
recommendations to FRA for action on the task. 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.
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\2\ RSAC member groups are: American Association of Private
Railroad Car Owners (AAPRCO); 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); American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR); Association of Railway
Museums; Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET); Brotherhood
of Maintenance of Way Employees Division (BMWED); Brotherhood of
Railroad Signalmen (BRS); Chlorine Institute; Federal Transit
Administration (FTA);* Fertilizer Institute; High Speed Ground
Transportation Association (HSGTA); Institute of Makers of
Explosives; International Association of Machinists and Aerospace
Workers; International Association of Sheet Metal, Air, Rail and
Transportation Workers (SMART), including the Sheet Metal Workers'
International Association (SMWIA) and United Transportation Union
(UTU); International Brotherhood of Electrical Workers (IBEW); Labor
Council for Latin American Advancement (LCLAA);* 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 (NRCMA); National Railroad Passenger Corporation
(Amtrak); National Transportation Safety Board (NTSB);* Railway
Supply Institute (RSI); Safe Travel America (STA); Secretaria de
Comunicaciones y Transporte (Mexico);* Tourist Railway Association,
Inc.; Transport Canada;* Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC);
and Transportation Security Administration (TSA).* *Indicates
associate membership.
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When 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
members, the proposal is formally recommended to the FRA Administrator.
FRA then determines what action to take on the recommendation. Because
FRA staff members play an active role at the working group level
discussing the issues and options and drafting the consensus
recommendation, FRA often adopts the RSAC recommendation.
FRA is not bound to follow the RSAC's recommendation, and the
agency exercises its independent judgment on whether a recommendation
achieves the agency's regulatory goal(s), is soundly supported, and is
consistent with policy and legal requirements. Often, FRA varies in
some respects from the RSAC recommendation in developing the actual
regulatory proposal or final rule. FRA explains any such variations in
the rulemaking. If RSAC is unable to reach consensus on a
recommendation for action, the task is withdrawn and FRA determines the
best course of action.
V. RWP RSAC Working Group
As detailed in the NPRM, on January 26, 2005, the RSAC formed the
RWP Working Group (Working Group) \3\ to consider specific actions to
advance the on-track safety of railroad employees and their contractors
engaged in maintenance-of-way activities throughout the general system
of railroad transportation. FRA tasked the Working Group with reviewing
the existing RWP regulation, technical bulletins, and a safety advisory
dealing with on-track safety for roadway workers, and, as appropriate,
to consider enhancements to the existing rule to further reduce the
risk of serious injury or death to roadway workers.
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\3\ The Working Group included members representing 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).
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The Working Group held 12 multi-day meetings and worked diligently
to reach consensus on 32 separate items. The Working Group's consensus
recommendations included adding or amending various provisions in the
following sections in part 214, subpart C:
Sec. 214.7--add two new definitions; revise an existing
definition; and incorporate three other existing definitions from part
236.
Sec. 214.309--revision to address on-track safety manual
for lone workers and changes to the manual.
Sec. 214.315--requirement that on-track safety job
briefings include information concerning adjacent tracks and
accessibility of the roadway worker in charge.
Sec. 214.317--new paragraph to formalize procedures for
roadway workers to walk across tracks; new paragraph for on-track weed
spray and snow blowing operations on non-controlled track.
Sec. 214.321--new paragraph to address the use of work
crew numbers.
Sec. 214.323--clarification of foul time provision
prohibiting roadway worker in charge or train dispatcher from
permitting movements into working limits.
Sec. 214.324--new section called ``verbal protection''
for abbreviated working limits within manual interlocking and
controlled points.
Sec. 214.327--three new paragraphs to formalize the
following methods of making non-controlled track inaccessible: Occupied
locomotive as a point of inaccessibility; block register territory;
and, the use of track bulletins to make track inaccessible within yard
limits.
Sec. 214.335--revision of paragraph (c) concerning on-
track safety for tracks adjacent to occupied tracks. Key elements are
the elimination of ``large-scale'' and the addition of a new
requirement for on-track safety for tracks adjacent to occupied tracks
for specific work activities (addressed in separate rulemaking
proceeding as discussed below).
Sec. 214.337--allow the use of individual train detection
at controlled points consisting only of signals and a new paragraph
limiting equipment/materials that can only be moved by hand by a lone
worker.
Sec. 214.339--revision of this section concerning train
audible warnings to address operational considerations.
Sec. 214.343--new paragraph to ensure contractors receive
requisite training/and or qualification before engaged by a railroad.
Sec. 214.345--lead-in phrase requiring all training to be
consistent with initial
[[Page 37843]]
or recurrent training, as specified in Sec. 214.343(b).
Sec. Sec. 214.347, 214.349, 214.351, 214.353, and
214.355--consistent requirements for various roadway worker
qualifications and a maximum 24-month time period between
qualifications.
On June 26, 2007, the full RSAC voted to accept the above
recommendations presented by the Working Group. In addition to the
above, the Working Group worked on a proposal to use electronic display
of authorities as a provision under exclusive track occupancy. The
Working Group developed lead-in regulatory text and agreed to some
conceptual items. When circulated back to the Working Group prior to
the full RSAC vote, however, technical issues were raised that could
not be resolved in the time available. Accordingly, in the NPRM, FRA
addressed the electronic display issue, and certain other issues the
Working Group did not reach consensus on, and FRA is addressing certain
of those items in this final rule. Other items the Working Group did
not reach consensus on include:
Sec. 214.7--new term and definition for a ``remotely
controlled hump yard facility.''
Sec. 214.7--revision to the definition for the term
``roadway worker.''
Sec. 214.317--use of tunnel clearing bays.
Sec. 214.321--track occupancy after passage of a train.
Sec. 214.329--removal of objects from the track under
train approach warning.
Sec. 214.336--passenger station platform snow removal and
cleaning.
Sec. 214.337--consideration of allowance for the use of
individual train detection at certain types of manual interlockings or
controlled points.
Sec. 214.353--qualification of employees other than
roadway workers who directly provide for the on-track safety of a
roadway work group.
As described further in either the preamble to the NPRM or below,
FRA is not addressing all of these non-consensus items in this final
rule. This rule does not address revisions to the terms ``roadway
worker'' or ``remotely controlled hump yard facility,'' the removal of
objects from the track under train approach warning, the addition of a
new ``verbal protection'' section, or passenger station platform snow
removal and cleaning, but the remaining non-consensus items this rule
does address are discussed in detail in the relevant Section-by-Section
analyses below.
VI. Proceedings Concerning On-Track Safety Procedures for Adjacent
Tracks
As mentioned above, the Working Group reached consensus on items
that dealt specifically with adjacent-track on-track safety issues. In
light of roadway worker fatality trends involving adjacent track
protections, and to expedite lowering the safety risk associated with
roadway workers fouling adjacent tracks, FRA undertook a rulemaking
proceeding to separately address the adjacent-track safety issues the
Working Group contemplated. FRA then published an NPRM addressing
adjacent-track on-track safety on July 17, 2008 (73 FR 41214), but
formally withdrew the NPRM on August 13, 2008 (73 FR 47124). FRA then
published a revised NPRM on November 25, 2009 (74 FR 61633), and a
final rule on November 30, 2011 (76 FR 74586). FRA received two
petitions for reconsideration of the final rule, and five public
comments on those petitions for reconsideration. See Docket No. FRA-
2008-0059, available at www.regulations.gov. On December 27, 2013, FRA
issued an amended final rule which made certain modifications to the
adjacent track final rule in light of issues the petitions for
reconsideration raised. 79 FR 1743. The final rule, as amended, became
effective on July 1, 2014. The provisions in that rulemaking have
limited interaction with the miscellaneous revisions in this final rule
amending subpart C. However, as a result of the adjacent track
rulemaking, the subpart C section numbering in this final rule for the
RSAC's consensus recommendations is slightly different from that
recommended. Any relevant numbering changes are noted in the Section-
by-Section analysis below.
VII. Proceedings in This Rulemaking to Date
On August 20, 2012, FRA published an NPRM in the Federal Register
proposing nearly all the RSAC consensus recommendations the adjacent
track rulemaking did not address and requesting public comment on a
variety of other proposals. 77 FR 50324. Noteworthy consensus
recommendations proposed in the NPRM include: A job briefing
requirement regarding the accessibility of the roadway worker in
charge; the adoption of procedures for how roadway workers walk across
railroad track; a new allowance for railroad's conducting on-track snow
removal and weed spraying operations; a clarification of the existing
``foul time'' provision; a new ``verbal protection'' provision; three
new permissible methods of establishing working limits on non-
controlled track; the expanded use of individual train detection at
controlled points; an amended provision governing audible warnings by
trains for roadway workers; and, clarification of training requirements
for roadway workers.
The NPRM also addressed items on which the Working Group did not
reach consensus and certain miscellaneous other revisions. These items
include: electronic display of track authorities, NTSB Safety
Recommendation R-08-06 (redundant signal protections), using certain
tunnel niches as a place of safety for roadway workers; a new provision
for the removal of objects from railroad track when train approach
warning is used as the method of on-track safety; amendments to the
existing provision governing the qualification of roadway workers in
charge (RWIC); a new section addressing passenger station platform snow
removal; a new provision governing using ``occupancy behind'' or
``conditional'' working limit authorities; the phase-out of using
definite train location and informational train line-ups, potential
amendments to the existing RWP and blue signal protection requirements
for work performed within shop areas, and, using other railroad track
as a place of safety when train approach warning is used as the method
of on-track safety. Finally, the NPRM also proposed to delete certain
incorporations by reference of personal protective equipment standards
in FRA's Bridge Worker Safety Standards at subpart B of part 214, and
instead cross reference OSHA's regulations on the same point.
VIII. Public Comments Received
FRA received 14 comments in response to the NPRM. Commenters
include: AAR, APTA, ASLRRA, BMWED and BRS (jointly; BMWED/BRS comment),
Kimberly Clark Professional, Metro-North and LIRR jointly (MTA
comment), New Jersey Transit (NJT), NTSB, Reflective Apparel Factory,
SEPTA, and 3M Occupational Health and Environmental Safety Division
(3M). FRA also received two comments from individuals, and an
additional late comment from BMWED. Section VIII.A below contains a
summary and analysis of the comments FRA received that FRA is not
adopting in this final rule. Section VIII.B below addresses the
effective date of the final rule. Section VIII.C below contains a
discussion of the general comments FRA received in response to the
NPRM. Section IX contains the Section-by-Section discussion of the
final rule, and addresses comments received in response to the NPRM on
[[Page 37844]]
each respective section of the regulation.
A. Comments on NPRM Proposals Not Included in Final Rule
1. Passenger Station Platform Snow Removal and Cleaning
In the NPRM, FRA proposed a new Sec. 214.338 addressing snow
removal and cleaning on passenger station platforms. As proposed, under
certain circumstances a single RWIC could oversee several ``station
platform work coordinators'' each responsible for directing the on-
track safety of a roadway worker or workgroup performing snow removal
or cleaning at passenger stations. FRA intended the proposal to address
issues associated with snow removal and routine maintenance operations,
and to ensure roadway worker safety while facilitating railroads'
ability to carry out these tasks on passenger stations platforms.
FRA received seven comments on this proposal. NTSB's comment
opposed FRA's proposal, stating it would detract from safety. The
BMWED/BRS comment also opposed the proposal, asserting it would weaken
existing safety protections and that the existing regulation already
facilitates timely removal of snow from passenger station platforms.
AAR's comment indicated proposed Sec. 214.338 is confusing and
suggested changes to the proposal (including removal of the 79 mph
speed limitation and increased exceptions for snow removal on
crosswalks). APTA also opposed FRA's proposal, and specifically noted
it disagreed with FRA's stated position that part 214 applies to
routine passenger station maintenance activities. APTA and BMWED/BRS's
comment also opposed this provision's related training section
(proposed Sec. 214.352). MTA opposed FRA's proposal, citing an alleged
lack of benefits and implying FRA's NPRM preamble discussion attempted
to expand the existing requirements of part 214. SEPTA commented that
snow removal and maintenance activities do fall under the scope of
existing part 214's on-track safety requirements and supported the
proposal. NJT commented that it successfully utilizes snow removal
procedures like those proposed on the Northeast corridor, but stated
the proposed 79 mph speed limit would impose financial burdens on the
railroad with no resulting safety benefit.
After evaluating the issue and comments received, FRA is not
adopting proposed Sec. 214.338 in this final rule. After recent
winters in which many States received heavy snowfalls, FRA's evaluation
of this issue indicates the existing regulation is not problematic.
Thus, FRA concludes the proposed amendments are not necessary. Further,
several commenters opposed all or parts of FRA's proposal, with two
commenters asserting that adopting the proposal would decrease safety.
Because FRA is not adopting proposed Sec. 214.338 in this final rule,
FRA is not adopting that provision's related training at proposed Sec.
214.352. Similarly, FRA is not adopting the proposed revisions to
existing Sec. 214.329(a) or to Sec. 214.7's definition of the term
``watchmen/lookouts'' that both related to the sight distance exception
of proposed Sec. 214.338.
While FRA is not including the station platform snow removal and
cleaning proposal in this final rule, FRA believes it is important to
clarify that snow removal activities involving railroad employees or
contractors fouling track are subject to the requirements of existing
part 214. The definition of a roadway worker includes employees or
contractors to a railroad who perform maintenance of roadway or roadway
facilities on or near track, or with the potential of fouling a track,
which includes snow removal activities. Whether a roadway worker sweeps
snow from a switch, a signal appliance, or at a passenger station, if
the roadway worker is fouling track (or could potentially foul the
track), the risk of injury or death to the roadway worker is the same.
FRA recognizes the risks of fouling track may be somewhat mitigated
when snow removal is conducted on elevated station platforms (railroad
passengers safely occupy the same area where these activities occur).
However, not all station platforms are high platforms, and often
roadway workers face risks when they foul track with their bodies or
equipment while removing snow or performing other routine maintenance
activities (e.g., a roadway worker clearing snow from an outside
station platform may foul the track with his or her shovel). Before
receiving the comments, FRA believed industry understood part 214
applies to snow removal activities. For example, in 2011, Amtrak
petitioned FRA for relief from part 214's definition of ``fouling a
track'' when hand tools are used to remove snow from a station
platform's tactile warning area. See Docket No. FRA 2011-0077,
available at www.regulations.gov. As noted in BMWED/BRS's comment, FRA
granted that waiver.
In the NPRM, FRA also requested comment on whether station platform
work coordinators should be required to wear highly visible garments
conforming to the standards of the American National Standards
Institute/International Safety Equipment Association. In response,
APTA, BMWED/BRS, 3M, Kimberly-Clark Professional, the Reflective
Apparel Factory, and NTSB commented. The BMWED/BRS commented that
individual railroads should determine the selection and their
employees' use of highly visible protective equipment. NTSB commented
that most railroads currently require roadway workers to wear highly
visible vests, and, because of the low visibility conditions that
typically exist during snow removal operations on station platforms,
FRA should require highly visible safety apparel for all work performed
in those conditions. APTA's comment supported using high visibility
apparel to help differentiate passengers on the platform from workers,
but stated it did not support considering these workers ``roadway
workers.'' Kimberly-Clark Professional, the Reflective Apparel Factory,
and 3M all expressed general support for a highly visible garment
requirement for station platform work coordinators. As discussed above,
FRA is not adopting proposed Sec. 214.338 in this final rule.
Accordingly, FRA is not adopting a highly visible garment requirement.
As noted in NTSB's comment, FRA understands most railroads already
require roadway workers to wear highly visible garments.
2. Verbal Protection
Consistent with a recommendation of the Working Group, in the NPRM,
FRA proposed new Sec. 214.324, designed to enable roadway workers to
establish working limits using ``verbal protection.'' In the NPRM, FRA
explained that by proposing to adopt the Working Group's ``verbal
protection'' recommendations, it intended to address discrepancies
discussed by the Working Group regarding how on-track safety
terminology and use varies in different parts of the country. As
proposed, verbal protection nearly mirrored the requirements of foul
time. For example, as proposed, if a RWIC established working limits
utilizing either verbal protection or foul time, he or she would not
have to copy a written authority and maintain possession of it while
working limits were in effect. Instead, the RWIC would only have to
correctly repeat back the applicable working limits information to the
train dispatcher or control operator. The primary difference between
verbal protection as proposed and the existing rule allowing
establishment of working limits via foul time is that under verbal
protection, a RWIC could authorize on-track equipment and trains to
move into
[[Page 37845]]
and within working limits. Under existing Sec. 214.323, foul time can
be utilized both within and outside of manual interlockings or
controlled points, but trains and on-track equipment are prohibited
from moving into working limits until the roadway worker who obtained
the foul time reports clear of the track.
In the NPRM, FRA requested comment on whether a RWIC using verbal
protection to establish working limits should be required to make and
maintain a copy of the working limits information. FRA noted that such
a requirement would ensure a RWIC could reference a written document if
any question regarding the working limits arose. FRA believes this
would be particularly important when a RWIC utilizing verbal protection
is asked to clear track to permit trains or other on-track equipment to
move through his or her working limits and then resume work.
In response to this request for comment, FRA received comments from
AAR, MTA, and the BMWED/BRS. AAR's comment stated the rule should not
require a RWIC to make and maintain a written copy of working limits
when using verbal protection, as there is no ``significant opportunity
for confusion if the procedures for verbal protection are followed.''
AAR further stated the use of a written authority would defeat the
purpose of verbal protection. MTA's comment made the same point and
added that requiring a RWIC to copy the information could potentially
distract that RWIC. BMWED/BRS's comment indicated this proposal would
exclude lone workers from being able to establish verbal protection
working limits (due to Sec. 214.7's proposed definition of the term
``roadway worker in charge'') and advocated requiring the RWIC to make
a written copy of working limits authority via verbal protection.
BMWED/BRS indicated that because an RWIC could authorize train and on-
track equipment movements into working limits authorized by verbal
protection, a written document would enhance safety and eliminate
mental errors regarding the working limits.
In light of the comments received, FRA again reviewed the records
of the Working Group's discussions on verbal protection. Those records
indicate the Working Group may have primarily intended verbal
protection as a method for roadway maintenance machines to occupy and
move through interlockings and controlled points and to perform short
duration work as necessary. FRA notes that existing part 214 already
accommodates these activities through the establishment of working
limits via foul time (Sec. 214.323) and exclusive track occupancy
(Sec. 214.321). Existing Sec. 214.323 permits the establishment of
foul time working limits within a manual interlocking or controlled
point, and permits the working limits to be established verbally by the
RWIC and dispatcher. Although part 214 does not specify any time limit
on the duration of foul time, typically, foul time is used for short
durations. If longer duration work needs to be performed, and a RWIC
desires to let trains through working limits without giving up his or
her authority, the RWIC can use the exclusive track occupancy
procedures at existing Sec. 214.321. Further, FRA notes that part 214
does not always require the establishment of working limits to move
roadway maintenance machines through an interlocking or controlled
point. Existing Sec. 214.301(c) allows roadway maintenance machine
movements in travel mode (not performing work such that working limits
are required) to do so under the authority of a dispatcher or control
operator. Because existing part 214 already provides the flexibility
FRA intended the proposal for verbal protection to achieve, and
consistent with AAR's comment, FRA believes requiring a RWIC to write
down his or her working limits information would make verbal protection
somewhat indistinguishable from existing exclusive track occupancy
procedures under Sec. 214.321.
FRA also believes that in some instances using verbal protection
could raise safety issues if not utilized as intended (e.g., a roadway
work group's establishment of working limits within an interlocking to
perform work requiring the group to repeatedly clear and then re-occupy
track to let trains travel through working limits). After careful
consideration of this issue, FRA strongly believes that if a work group
wants to let trains or other on-track equipment travel through working
limits without releasing its authority, the RWIC should have a written
(or electronic) document to refer to containing all relevant
information for that authority (e.g., the exact limits of the
authority, track number(s)). The existing exclusive track occupancy
procedures at Sec. 214.321 provide for such a document for the work
group to reference.
FRA understands the operating rules of railroads may utilize
different terminology than exists in part 214 (e.g., some railroads'
rules may refer to Sec. 214.321's exclusive track occupancy
requirements as ``foul time''). FRA also understands some railroads'
rules may differ from part 214 in not permitting using certain forms of
working limits within the limits of an interlocking or controlled
point. However, existing part 214 has no such restrictions. A new
verbal protection section would not create any flexibility in
establishing working limits within a manual interlocking or controlled
point that part 214 does not already provide, and could potentially
introduce safety concerns that do not currently exist if not used as
the Working Group seems to have originally intended. Thus, FRA declines
to adopt the proposed ``verbal protection'' section in this final rule.
3. Physical Characteristics Qualification for Watchmen/Lookouts and
Lone Workers
Existing Sec. 214.353 governs the qualification and training of
RWICs and includes training on the ``relevant physical characteristics
of the territory of the railroad upon which the roadway worker is
qualified.'' However, similar training and qualification is not
required for lone workers or watchmen/lookouts. See Sec. Sec. 214.347
and 214.349. In the NPRM, FRA requested comment on whether lone workers
and watchman/lookouts should be trained and qualified on the physical
characteristics of a territory similar to the qualification requirement
for RWICs. Lone workers are similar to RWICs because they establish on-
track safety, but only for themselves rather than for an entire roadway
work group like an RWIC. FRA sought comment on this issue to determine
if such a requirement could potentially improve the safety of lone
workers and better enable watchmen/lookouts to provide effective train
approach warning at particular locations.
BMWED/BRS, AAR, SEPTA, NJT, and MTA each commented on this
proposal. The BMWED/BRS comment supported including physical
characteristics qualification and training for lone workers, noting
they must be able to establish working limits when necessary, and be
familiar with their assigned territory. Both BMWED/BRS and SEPTA
opposed physical characteristics training for watchmen/lookouts because
such employees work under the supervision of a RWIC who must be
qualified on the physical characteristics and have cost concerns.
Noting the lack of accidents attributed to roadway workers lacking
familiarity with the physical characteristics of a territory, AAR's
comment opposed this proposal, stating there is no evidence to support
the requirement and citing cost concerns. NJT's comment stated lone
workers already have to be qualified on
[[Page 37846]]
physical characteristics to foul track. FRA agrees with NJT to the
extent a railroad chooses to require physical characteristics training
to consider a lone worker ``qualified,'' as that term is defined at
existing Sec. 214.7. With regard to watchmen/lookouts, NJT's comment
stated that physical characteristics qualification would not always
help an employee determine proper sight distances and such a
requirement would not significantly enhance safety. Rather, NJT
suggested FRA should clarify job briefing requirements when roadway
work groups utilize watchmen/lookouts. MTA's comment stated it does not
believe watchmen/lookouts should be required to have physical
characteristics qualification.
After evaluating the comments, FRA is not adopting either the lone
worker or watchmen/lookouts physical characteristics qualification
requirement. First, no commenters supported the proposal on watchmen/
lookouts, pointing to cost prohibitions, the fact that each roadway
work group is already required to have a RWIC qualified on the physical
characteristics, and issues with logistics and efficiency. Although
some commenters did support such a requirement applying to lone
workers, FRA is not aware of accident data to offset the costs such a
requirement might entail and does not believe that specifically
mandating the physical characteristics qualification of lone workers
would yield any real safety benefit. As a practical matter, as NJT's
comment recognized, lone workers are often already qualified on the
physical characteristics of a territory, as they need to be conversant
in which type of protection (working limits versus individual train
detection) is appropriate at any given work location. FRA also notes
that under the existing RWP regulation lone workers always have the
absolute right to establish working limits when fouling track, which
eliminates safety concerns regarding the use of individual train
detection if the lone worker is not comfortable using that form of on-
track safety at any location. See 49 CFR 214.337(b).
4. Removal of Objects by Hand Under Train Approach Warning
Consistent with the Working Group's consensus recommendation, in
the NPRM FRA proposed to add new paragraph (g) to Sec. 214.337.
Paragraph (g) is adopted in this final rule and prohibits lone workers
from utilizing individual train detection to provide on-track safety
when using a roadway maintenance machine, equipment, or material that
cannot be readily removed from the track by hand. As noted in the NPRM,
the Working Group also discussed the use of train approach warning
(Sec. 214.329) by roadway work groups using roadway maintenance
machines, equipment, or material not easily removed from the track.
Although the Working Group did not reach consensus on this point,
because the existing RWP regulation is silent on this issue, FRA
proposed in the NPRM new Sec. 214.329(h). FRA intended paragraph (h)
to prohibit using train approach warning as the form of on-track safety
when a roadway work group is using equipment they cannot easily remove
from the track and to clarify the establishment of working limits is
necessary in such situations. FRA is not adopting proposed Sec.
214.329(h) in this final rule for the reasons explained below.
NTSB and BMWED/BRS comments opposed adding proposed paragraph (h)
to Sec. 214.329. NTSB stated the purpose of existing Sec. 214.329
governing train approach warning provided by watchmen/lookouts is to
ensure roadway workers can occupy a place of safety not less than 15
seconds before a train arrives. Further, NTSB notes the section is
intended to protect roadway workers by allowing them to immediately
move to occupy a place of safety when train approach warning is
provided, not to allow the coordination of equipment removal.
Like NTSB's comments, BMWED/BRS commented that train approach
warning is limited to warning persons to clear the track and is not
intended to protect equipment fouling a track. BMWED/BRS noted that
issues with removing equipment from track have not arisen in situations
involving the train approach warning regulation. BMWED/BRS explained
that if a roadway worker is holding a hand tool or a small handheld
power tool, he or she will normally carry that tool with them to the
place of safety. BMWED/BRS argued proposed paragraph (h) is unsafe,
would increase the risk of roadway workers being struck by trains or
on-track equipment, and that ``FRA should not require roadway workers
to do anything except immediately move to a predetermined place of
safety upon receiving a train approach warning.''
After FRA published the NPRM, on January 6, 2014, the rail
industry's Fatality Analysis of Maintenance-of-Way Employees and
Signalmen (FAMES) Committee \4\ published a report analyzing fatal
accidents which occurred under train approach warning.\5\ The report
noted that three of the 10 fatal accidents analyzed, which occurred
when roadway workers used train approach warning to establish on-track
safety, resulted from watchmen/lookouts not being fully focused on the
task of detecting approaching trains. The FAMES report emphasized
compliance with certain practices required by existing Sec. 214.329.
That existing regulatory provision requires watchmen/lookouts to devote
their full attention to detecting the approach of trains and
communicating the appropriate warnings to roadway workers. That section
further prohibits assigning any other duties to the watchman/lookout
while that individual is functioning as a watchmen/lookout. After
careful consideration of the comments received and the findings of the
FAMES report, FRA believes that emphasis on the existing requirements
of Sec. 214.329 and continued vigilant enforcement efforts are the
best methods to ensure roadway worker safety when train approach
warning is used to establish on-track safety. Accordingly, FRA is not
adopting proposed paragraph (h) in this final rule. FRA believes the
commenters raised valid points regarding the safety of roadway workers
and that the regulation is intended to protect roadway workers, not
equipment. FRA also agrees a roadway worker's first responsibility upon
receiving train approach warning is to move to occupy a place of
safety. While FRA intended this proposal to improve safety, it appears
safety is best improved by reinforcing strict compliance with existing
Sec. 214.329. That section, if followed, provides for effective on-
track safety for roadway workers.
---------------------------------------------------------------------------
\4\ The FAMES Committee consists of safety representatives from
a cross section of railroad labor, railroad management, and federal
regulators. FAMES analyzed all fatalities and selected related
incidents to make recommendations to reduce the risk of future
occurrences and eliminate fatalities to roadway workers.
\5\ http://www.fra.dot.gov/eLib/Details/L04902.
---------------------------------------------------------------------------
B. Effective Date
In the NPRM, FRA requested comment regarding the appropriate
effective date of this final rule. SEPTA, MTA, BMWED/BRS, and AAR
submitted comments in response to this request. SEPTA agreed with the
NPRM's preamble discussion noting that the effective date of this final
rule should consider railroad training schedules. MTA commented that
FRA should consider the time needed for the preparation of training
materials to select an effective date. MTA's comment also indicated
that if this final rule required certain employees to be trained
[[Page 37847]]
on both part 218's blue signal protections and subpart C's roadway
worker protections, additional time for developing training would be
necessary. FRA is not adopting a requirement that employees be trained
on the protections in both part 218 (blue signal) and part 214 (on-
track safety) in this final rule.
BMWED/BRS requested the effective date to be timed to coincide with
the effective date of the adjacent track final rule. However, that rule
already took effect on July 1, 2014. AAR's comment urged FRA to choose
an effective date providing sufficient time to allow for the
preparation of training materials for training classes.
In light of the comments received and consideration of the safety
benefits to be gained from implementation of this rule, the effective
date of this final rule is April 1, 2017. As this final rule is being
published in the first half of 2016, railroads have adequate time to
adjust training materials used for training classes to be conducted in
the first quarter of 2017, or during the time period when annual
training is typically conducted for roadway workers. Industry practice
is for railroads to finalize their annual rules instruction programs in
the fourth quarter of the calendar year, and then to actually instruct
their employees in the first quarter of the next calendar year. Based
on the implementation date chosen, railroads will not have to alter the
timing of their instruction programs for the rule to take effect after
the first quarter of 2017.
C. Discussion of General Comments Received
SEPTA recommended that FRA limit this rulemaking to issues the RSAC
addressed. As noted in the NPRM and discussed above, the Working Group
meetings that form the basis for much of this final rule took place
between 2005 and 2007. Since these meetings, FRA focused its efforts
and resources on the adjacent track rulemaking discussed above and
other safety issues and Congressional mandates (most notably
implementation of the Rail Safety Improvement Act of 2008 (Pub. L. 110-
432, Division A, 122 Stat. 4848) (RSIA), which required significant new
FRA regulatory efforts). In the interim time, however, FRA continued to
address safety issues related to roadway worker protection in general,
including NTSB Safety Recommendation R-08-06. Therefore, issuing a
regulation not taking into consideration the latest relevant
developments and safety issues would be an inefficient and ineffective
use of FRA's resources.
APTA requested that FRA publish specific proposed rule text to
comment on so the public can appropriately focus their comments and
increase the effectiveness of public comments. The Administrative
Procedure Act (see 5 U.S.C. 553(b)(3)), does not require an agency to
propose specific regulatory text in proposed rules, but instead allows
an agency to provide ``a description of the subjects and issues
involved.'' Nevertheless, in the NPRM, FRA proposed specific regulatory
text for almost all its proposals. In this final rule, FRA is adopting
three of the items proposed without specific regulatory text (tunnel
niches (Sec. 214.317(d)), blue signal allowances (Sec. 214.318), and
redundant signal protections (Sec. 214.319(b)). FRA believes the
public comments received addressing the benefits and/or drawbacks and
potential burdens of these proposals sufficiently inform FRA's
reasonable regulatory decisions, particularly in light of the past RSAC
discussions. Further, on certain proposals, such as whether FRA should
permit using blue signal protections for certain maintenance performed
within locomotive and car shop areas, FRA reasonably sought comments
broadly addressing how best to implement the proposals if adopted in a
final rule (see new Sec. 214.318 below). Last, AAR commented that the
NPRM's accompanying cost-benefit analysis relied on business benefits.
AAR stated that where NPRM proposals would impose burdens on the
railroad industry, to adopt those provisions in a final rule, the
proposals must be modified if there are no offsetting safety benefits.
FRA addresses this comment further in the Regulatory Impact Analysis
(RIA) accompanying this rule.
IX. Section-by-Section Analysis
Section 214.7 Definitions
In the NPRM, FRA proposed amending the existing part 214
definitions to add both new definitions and revise existing
definitions. In this final rule, FRA is adding new definitions for the
following terms: controlled point; interlocking, manual; maximum
authorized speed; on-track safety manual; and roadway worker in charge
(RWIC). FRA is also amending part 214's existing definitions for
``effective securing device'' and ``watchman/lookout.''
Consistent with the consensus recommendation of the Working Group,
in the NPRM, FRA proposed to add the same definition of ``controlled
point'' to part 214 as in FRA's signal regulations at 49 CFR 236.782.
In this final rule, FRA is adopting the definition as proposed. As
explained in the NPRM, a definition of ``controlled point'' in part 214
is necessary because existing Sec. 214.337 prohibits using individual
train detection by a lone worker inside the limits of a ``controlled
point.'' See Sec. 214.337(c)(3). However, the term ``controlled
point'' is not defined in the existing RWP regulation. As also
explained in the NPRM, in 2005, in response to interpretation issues,
FRA issued Technical Bulletin G-05-29. Technical Bulletin G-05-29
adopted Sec. 236.782's definition of ``controlled point'' and that
definition is used in the RWP regulation today.
AAR and BMWED/BRS commented on this proposal. AAR expressed concern
that under the proposed definition any location with a remote
controlled power switch would be considered a controlled point. AAR
stated that absolute signals are not always at these locations (e.g.,
dual-control switches that may be manipulated either by hand or
remotely, typically by a train dispatcher or control operator) in non-
signaled track warrant control territory. In addition, AAR stated the
practical effect of this definition would be that railroads could not
use individual train detection where there is a remote controlled power
switch since it only permits using individual train detection outside
the limits established by a controlled point. AAR also expressed
concern that switch heaters, snow blowers, signal call lights, blue
signal protection, electric switch locks, and bridges can be
``controlled'' by dispatchers via the control system, but these
locations are not considered ``controlled points'' as commonly
understood in the industry. AAR urged FRA to delete the words ``and/or
other functions of a traffic control system'' from the definition of
``controlled point'' in this final rule.
BMWED/BRS expressed concern about allowing roadway workers to use
individual train detection at power-operated switches. BMWED/BRS
asserted that power-operated switches can be manipulated by a train
crew from a distance resulting in injury to a roadway worker performing
work on such a switch while relying on individual train detection as
his or her means of on-track safety. BMWED/BRS urged FRA to prohibit
lone workers from using individual train detection as a method of on-
track safety while working on power-operated switches.
FRA agrees with AAR's comments to the extent that FRA did not
intend to include most of the mechanisms AAR listed in the definition
of ``controlled point'' (switch heaters, blue signal protection, snow
blowers, etc.). FRA
[[Page 37848]]
disagrees, however, with regard to remote-controlled power switches and
to bridges that are moveable via a control machine (by train dispatcher
or control operator). FRA does intend to include those mechanisms in
the definition. Under the existing regulation, a lone worker working on
a moveable bridge that is a controlled point is always required to
establish working limits because a lone worker using individual train
detection as his or her form of on-track safety is not required to
notify a train dispatcher or control operator of the work they are
performing. If a lone worker used individual train detection on a
moveable bridge ``controlled point,'' the dispatcher or control
operator may be unaware of the roadway worker's presence and could
remotely move the bridge with the roadway worker on it, creating risk
of injury or death to the roadway worker. Accordingly, FRA does not
agree with AAR's comment regarding movable bridges has merit.
In the NPRM, FRA explained that power-operated switches are not
generally considered interlockings or controlled points when the
switches have wayside indication devices that convey the position of a
switch and are operated by train crews. However, FRA further noted that
if a power operated switch can be remotely operated by a control
operator or dispatcher, it may be considered a ``controlled point.''
See 77 FR 50333. The Working Group specifically contemplated whether to
expand the allowable use of individual train detection in the otherwise
prohibited ``controlled point'' locations, but did not reach consensus
on this issue, largely for safety reasons. FRA agrees with the Working
Group's concerns and does not believe it prudent to expand use of
individual train detection to ``controlled points'' consisting of
remote-controlled power switches. As explained in the original 1996 RWP
final rule, using individual train detection is appropriate only in
very limited circumstances. 61 FR 65959, 65971.
In response to the BMWED/BRS comment, in the NPRM, FRA addressed
power-operated switches (77 FR 50333), explaining that use of
individual train detection by a lone worker at power-operated switch
installation locations is permitted if:
The signals at these installations do not convey train
movement authority; and
The switch installation is not controlled by a train
dispatcher or control operator, and is not part of a manual
interlocking or controlled point.
FRA does not believe it prudent to expand the definition of
``controlled point'' to include all power-operated switches. Rather,
the longstanding guidance described above from FRA Technical Bulletin
G-05-11 regarding which power-operated switches constitute ``controlled
points,'' will continue to control. Lone workers performing work at
these installations, or at any other location where individual train
detection use is permitted, maintain the absolute right to use a form
of on-track safety other than individual train detection. See Sec.
214.337(b). Thus, a blanket expansion of the definition to address all
power-operated switches is not justified. Upon the effective date of
this final rule, the definitions of ``controlled point'' and
``interlocking, manual'' (discussed below) adopted in this rule
supplant FRA Technical Bulletin G-05-29.
Consistent with the Working Group recommendation, in the NPRM FRA
proposed amending the existing definition of ``effective securing
device'' to incorporate the contents of Technical Bulletin G-05-20. In
this final rule, FRA is adopting the revised definition as proposed.
FRA intended to clearly identify effective securing devices and to
prevent railroad employees from being injured attempting to operate a
secured device. Therefore, FRA proposed to specify in the definition of
``effective securing device'' that any such device must be equipped
with a ``unique tag'' clearly indicating to other railroad employees
that the switch is secured by roadway workers.
AAR, BMWED/BRS, and an individual submitted comments on FRA's
proposed amendment to this definition. BMWED/BRS advocated for a tag
affixed to an effective securing device to be either a generic or a
unique tag if the tag clearly indicates inaccessible track working
limits and the railroad's rules prohibit operating in those limits
except as the RWIC permits. AAR similarly commented that FRA should
clarify the meaning of ``unique'' tag. AAR stated unique tags should be
craft-specific, and not unique to an individual employee. AAR also
stated that requiring an individual employee to sign the tag would be
unnecessary and burdensome. Finally, an individual commenter asked if
an RWP-specific tag would suffice or whether FRA's proposed amendment
would require an additional ``unique'' tag.
FRA is adopting the revised definition as proposed. In response to
the comments received, FRA clarifies that the tag does not have to be
``unique'' to a specific person or work gang. Rather, a craft-specific
tag is considered unique.
In this final rule, as proposed in the NPRM and consistent with
BMWED/BRS's comment supporting the proposal, FRA is adopting the
Working Group's recommended definition for the new term ``interlocking,
manual.'' This definition mirrors the existing definition for the same
term in FRA's signal and train control regulation (Sec. 236.751).
Because we are not making substantive revisions in this final rule
to the proposals in the NPRM for the definitions of ``controlled
point'' or ``interlocking, manual,'' for ease of reference, below, FRA
is duplicating the table included in the NPRM, summarizing the
applicability of individual train detection on various types of track
arrangements:
------------------------------------------------------------------------
Track arrangement Individual train detection permitted
------------------------------------------------------------------------
Controlled point/manual No.
interlocking with switches,
crossings (diamonds), or
moveable bridges.
Controlled point with signals Yes.
only--see Sec. 214.337(c)(3).
Manual interlocking.............. No.
Automatic interlocking........... Yes.
Power-operated switch See discussion above.
installations.
------------------------------------------------------------------------
In this final rule FRA is adopting the new definition for the term
``maximum authorized speed'' proposed in the NPRM. Existing Sec.
214.329(a) requires that train approach warning be given in sufficient
time for a roadway worker to occupy a previously arranged place of
safety not less than 15 seconds before a train moving at the maximum
speed authorized on that track can pass the location of the roadway
worker. Existing Sec. 214.337(c) contains a similar requirement for
lone workers. However, no definition for ``maximum authorized speed''
exists in the current RWP
[[Page 37849]]
regulation. Accordingly, the Working Group recommended that FRA define
the term ``maximum authorized speed'' as the speed designated for a
track in a railroad's timetable, special instructions, or bulletin. The
Working Group agreed that using a temporary speed restriction as the
basis to determine the appropriate train approach warning distance
could pose inherent dangers. That danger can occur when someone removes
a temporary restriction from a particular segment of track without
notifying the roadway work group or lone worker using that temporary
speed restriction so they can determine the appropriate train approach
warning distance.
In response to the NPRM proposal, both NJT and BMWED/BRS comments
agreed temporary speed restrictions should not be used to determine
appropriate train approach warning distances and supported the proposed
definition. Therefore, FRA is adopting the new definition as proposed.
FRA notes this new definition also applies to the RWP requirements in
the adjacent track rulemaking. See Sec. 214.336.
Consistent with the consensus recommendation of the Working Group,
in the NPRM, FRA proposed to define ``on-track safety manual.'' FRA
intended the proposed definition to provide clarity. FRA is adopting
the definition substantially as proposed, with minor clarifying
language suggested by BMWED/BRS.
As noted in the NPRM, existing Sec. 214.309 requires each RWIC and
lone worker to have with them a manual containing the rules and
operating procedures governing track occupancy and protection. To
clarify the materials that must be included in such a manual, FRA
proposed to define the term ``on-track safety manual,'' in part, as
``the entire set of instructions designed to prevent roadway workers
from being struck by trains or other on-track equipment.'' BMWED/BRS
suggested that the definition require ``the entire set of on-track
safety rules and instructions'' to be in the manual and to expressly
state the on-track safety rules and instructions must be maintained
together in one manual. FRA agrees with both of BMWED/BRS's
suggestions. First, BMWED/BRS's suggested reference to ``the entire set
of on-track safety rules and instructions'' more accurately captures
the manual's required contents. Second, consistent with the existing
RWP regulation, FRA intended to require that the ``on-track safety
manual'' be a single manual. As discussed in the NPRM preamble, and in
the 1996 final rule preamble BWMWED/BRS quoted in their comment, that
single manual may be divided into binders (separate sections where
appropriate), rather than requiring railroads to issue new manuals each
time it amends a rule or issues a new rule. For example, the manual
could be broken into separate sections addressing on-track safety
rules, good faith challenge procedures, roadway maintenance machine
procedures, and other relevant issues.
As discussed in the NPRM, FRA Technical Bulletins G-05-12 and G-05-
25 both address concerns regarding the requirement to maintain on-track
safety manuals. Because this final rule's adoption of a definition for
``on-track safety manual'' alleviates the need for Technical Bulletins
G-05-12 and G-05-25, those Technical Bulletins are supplanted upon the
effective date of this final rule.
Next, in the NPRM FRA proposed a definition for the term ``roadway
worker in charge'' (RWIC). The term is used in existing Sec. 214.321,
and is also described interchangeably throughout the existing
regulation as the ``roadway worker responsible for the on-track safety
of others,'' the ``roadway worker designated by the employer to provide
for on-track safety for all members of the group,'' the ``roadway
workers in charge of the working limits,'' and other similarly
descriptive terms. The Working Group's consensus recommendations for
this rulemaking also used the term ``roadway worker in charge'' in
several places. However, that term is not defined in the existing
regulation, and the Working Group did agree on a recommended definition
of the term.
The NPRM's proposed definition of RWIC mirrored the existing
definition for the term in FRA's Railroad Operating Practices
Regulation (see Sec. 218.93). FRA also proposed to amend numerous
sections of part 214 to substitute the term ``roadway worker in
charge'' for the wide variety of terms currently used to describe the
roadway worker who is in charge of a roadway work group and establishes
on-track safety for that group.
In its comments on FRA's proposed definition of RWIC, BMWED/BRS
recommended that FRA revise the proposed definition to include lone
workers. BMWED/BRS supported including lone workers in the definition
of ``roadway worker in charge'' to permit a lone worker to establish
on-track safety for his or her self (without unnecessary regulatory
text referring to both RWICs and lone workers). Specifically, BMWED/BRS
suggested adding the words ``and lone workers qualified in accordance
with Sec. 214.347 for the purpose of establishing on-track safety for
themselves'' to the end of the proposed definition.
FRA concurs with the BMWED/BRS comment, and, in this final rule, is
adopting a slightly different definition of RWIC than the suggested
language. FRA is defining ``roadway worker in charge'' as a roadway
worker who is qualified under Sec. 214.353 to establish on-track
safety for roadway work groups, and lone workers qualified under Sec.
214.347 to establish on-track safety for themselves. Under the current
regulation, lone workers can establish on-track safety for their own
protection, either via individual train detection or by establishing
working limits. In the NPRM, FRA did not intend to prohibit lone
workers from establishing working limits for their own protection. FRA
emphasizes, however, that consistent with the existing regulation, a
lone worker who is qualified under Sec. 214.347 may establish the
appropriate form of on-track safety for his or herself. However, if a
lone worker is establishing on-track safety for any other roadway
workers, he or she must be qualified under Sec. 214.353 as a RWIC.
Finally, FRA noted in the preamble of the NPRM that a RWIC may only
perform watchman/lookout duties if the requirements of Sec. 214.329
are met. Section 214.329(b) requires that watchmen/lookouts devote full
attention to detecting the approach of trains and communicating warning
thereof, and shall not be assigned any other duties while functioning
as watchmen/lookouts. Thus, a RWIC could not perform any other duties,
such as providing direction to a roadway work group, while
simultaneously serving as a watchmen/lookout. The limitation on
performing other tasks while simultaneously serving as a watchman/
lookout severely limits the instances when a RWIC may permissibly fill
both roles.
In the NPRM, FRA proposed to amend the definition of ``watchman/
lookout'' to account for the proposed use of station platform work
coordinators and requested comment on potentially amending the existing
definition to more accurately reflect the training and qualification
requirements for a watchman/lookouts. In this final rule, FRA is not
adopting the proposed station platform work coordinators provisions.
Thus, the proposed revision to the watchman/lookout definition is
unnecessary. With regard to watchman/lookout training and qualification
requirements, the existing regulation defines a watchman/lookout, in
part as, an employee who has been annually trained and qualified to
provide train
[[Page 37850]]
approach warning to roadway workers of approaching trains or on-track
equipment. See Sec. 214.7. However, as discussed below in the Section-
by-Section analysis for Sec. 214.347, the current regulation does not
specify the frequency of ``periodic'' qualification requirements for
specific roadway worker qualifications (e.g., lone worker, watchman/
lookout, flagman, or RWIC qualification). Existing Sec. 214.349(b)
requires initial and periodic qualification of a watchman/lookout to be
evidenced by demonstrated proficiency, mirroring the other existing
additional roadway worker qualification sections. FRA requested comment
on whether it should remove the word ``annually'' from the existing
definition of ``watchman/lookout'' so the definition more accurately
reflects both the current and any future RWP refresher qualification
and training requirements and is consistent with the other existing
roadway worker qualification definitions.
BMWED/BRS submitted a joint comment in response to the proposal,
and BMWED, submitted its own additional late comment. Noting that the
Working Group reached consensus on annual training and qualification
requirements for roadway workers, in their comments, BMWED/BRS opposed
removing the word ``annual'' from the definition of watchman/lookout.
After consideration of BMWED/BRS's comment, in this final rule FRA
is removing the word ``annually'' from the definition of ``watchman/
lookout.'' As stated above, removing the reference to ``annual'' is for
consistency with the definitions of the other roadway worker
qualifications, and because the ``periodic'' qualification requirement
is not considered an ``annual'' requirement under the RWP regulation.
FRA's longstanding position since the RWP rule became effective in 1997
is that roadway worker training is an annual requirement (see Section-
by-Section analysis discussion for Sec. Sec. 214.343, 214.345,
214.347, 214.349, 214.351 and 214.353). As discussed in the Section-by-
Section analysis for the roadway worker training sections below, the
RSAC consensus recommendation was for a 24-month ``periodic'' re-
qualification requirement, and the training standards rulemaking at 49
CFR part 243 requires a minimum three-year qualification interval. FRA
is not amending the annual training requirement for watchmen/lookouts
or for roadway workers generally. However, as discussed in the Section-
by-Section analysis for the training sections below, FRA is adopting a
definite interval for periodic re-qualification in this final rule.
The BMWED's later comment expressed concern that some railroads are
not providing watchmen/lookouts with any audible or visual warning
devices to provide appropriate train approach warning. The comment
points out the existing definition of the term ``watchman/lookout'' in
Sec. 214.7 requires, in part, that roadway workers acting as watchmen/
lookouts be properly equipped to provide visual and auditory warning,
such as whistle, air horn, white disk, red flag, lantern, fusee. The
comment urges FRA to clarify in this final rule that use of such
audible and/or visible warning devices are mandatory to provide train
approach warning under Sec. 214.329. FRA concurs with the BMWED. Both
the definition of watchman/lookout, and the operative train approach
warning regulation at Sec. 214.329(c) and (g), provide that watchmen/
lookouts must be properly equipped to provide train approach warning.
As explained in the preamble to the 1996 final rule implementing
subpart C:
[t]his section further imposes a duty upon the employer to provide
the watchman/lookout employee with the requisite equipment necessary
to carry out his on-track safety duties. It is intended that a
railroad's on-track safety program would specify the means to be
used by watchmen/lookouts to communicate a warning, and that they be
equipped according to that provision.
61 FR 65970, Dec. 16, 1996. Thus, FRA emphasizes that under the
existing RWP regulation, a railroad must properly equip a watchman/
lookout with the equipment specified by the railroad's on-track safety
program to properly communicate a warning. Except in limited
circumstances (e.g., a watchman/lookout assigned to provide train
approach warning for a single welder and who is located immediately
next to the welder to provide a warning), if a railroad does not
provide equipment with the specified auditory or visual warning
capabilities to the roadway workers a watchman/lookout is protecting,
the railroad is in violation of Sec. 214.329. If an on-track safety
program fails to specify the ``requisite equipment necessary'' for a
watchman/lookout to provide on-track safety for a roadway work group,
the program also is not compliant with part 214.
Subpart B--Bridge Worker Safety Standards
In the NPRM, FRA proposed to delete the existing incorporations by
reference of certain outdated industry standards for personal
protective equipment (PPE) in subpart B of part 214 (Bridge Worker
Protection). Specifically, Sec. Sec. 214.113, 214.115, and 214.117
incorporate by reference certain American National Standards Institute
(ANSI) standards governing head, foot, eye, and face protection,
respectively. FRA originally promulgated those sections in 1992 and
they reference standards from 1986. 57 FR 28116, Jun. 24, 1992.
Although the regulatory requirements have not been substantively
updated in some time, ANSI has updated the standards themselves.
Employers and employees may not be able to obtain PPE manufactured
using the older standards currently incorporated by reference. As such,
FRA proposed to (1) amend these existing sections to reflect the
updated ANSI standards, (2) allow the continued use of any existing
equipment which meets the standards currently incorporated by reference
in part 214, and (3) allow the use of equipment meeting updated
versions of those standards. FRA received no comments on these NPRM
proposals and is adopting the revisions to Sec. Sec. 214.113, 214.115,
and 214.117 as proposed. For a detailed discussion of these amendments,
see the preamble to the proposed rule at 77 FR at 50335-36.
Subpart C--Roadway Worker Protection
Section 214.301 Purpose and Scope
Section 214.301 sets forth the purpose and scope of subpart C of
part 214. Existing paragraph (c) explains that subpart C prescribes
safety standards for the movement of roadway maintenance machines when
such movements affect the safety of roadway workers. Paragraph (c)
further explains that subpart C does not affect the movements of
roadway maintenance machines that are conducted under the authority of
a train dispatcher, a control operator, or the operating rules of a
railroad. To clarify the paragraph's meaning, FRA proposed regulatory
text explicitly stating that while roadway maintenance machines are
traveling under the authority of a train dispatcher, a control
operator, or the operating rules of the railroad, the operator is not
required to establish on-track safety under part 214. FRA did not
intend this proposed amendment to be substantive but rather to clarify
the existing meaning of paragraph (c) consistent with FRA Technical
Bulletin G-05-14. Technical Bulletin G-05-14 explains that the
regulation does not affect movements of roadway maintenance machines
over non-controlled track being made under the operating rules of the
railroad, but, those same machines, while actually conducting work,
must establish on-track safety. After careful consideration
[[Page 37851]]
of the issue and comments received, FRA concluded the meaning of
paragraph (c) is already well understood and the proposed amendment is
unnecessary. Thus, in this final rule, FRA is not adopting this
proposed amendment to paragraph (c).
However, FRA is adding a reference in paragraph (c) to new Sec.
214.320 adopted in this final rule. Section 214.320 pertains to the
NPRM's proposed revisions to Sec. 214.301 on the movement of roadway
maintenance machines over non-controlled track equipped with automatic
block signal (ABS) systems where trains are permitted to travel at
greater than restricted speed. The discussion of that issue, and of the
comments received, appears below in the Section-by-Section analysis for
new Sec. 214.320.
As a result of the amendments this final rule makes to Sec. Sec.
214.301, 214.320, and 214.329, and as noted in the NPRM, upon the
effective date of this final rule Technical Bulletin G-05-14 is
supplanted.
Section 214.302 Information Collection Requirements
FRA received no comments in response to this proposal. Therefore,
as proposed in the NPRM, FRA is deleting this existing section from
part 214. For a detailed summary of the information collection
requirements, please see the Paperwork Reduction Act discussion in
Section X of the preamble below.
Section 214.305 Compliance Dates
As proposed in the NPRM, FRA is deleting existing Sec. 214.305,
because the compliance dates in the section are obsolete. FRA received
no comments in response to this proposal.
Section 214.307 On-Track Safety Programs
Existing Sec. 214.307 requires a railroad to notify FRA in writing
at least one-month in advance of its on-track safety program becoming
effective, and sets forth FRA's formal review and approval process for
such programs. In the NPRM, FRA proposed to amend this section by: (1)
Rescinding the requirement that railroads provide FRA advance notice of
the effective date of their on-track safety programs; and (2) modifying
the existing on-track safety program formal approval process. Instead,
FRA proposed to review railroads' on-track safety programs upon
request. FRA proposed these amendments intending to alleviate burdens
as part of its retrospective review of subpart C. Related to this
proposed revision, FRA proposed a new paragraph (b) mirroring other
provisions FRA recently adopted in the Federal railroad safety
regulations (see 49 CFR 220.313). In new paragraph (b), FRA proposed
that the FRA Associate Administrator for Railroad Safety and Chief
Safety Officer could disapprove a program for cause stated, and
proposed requiring a railroad to respond to any such disapproval within
35 days by either (1) amending its program and submitting the
amendments for approval, or (2) providing a written response in support
of its program. As proposed, FRA's Associate Administrator for Railroad
Safety and Chief Safety Officer would subsequently render a decision in
writing either approving or disapproving the program. Under this
proposal, FRA would consider a failure to submit an amended program or
provide a written response as the section requires a failure to
implement a program under this part. Finally, in the NPRM, FRA proposed
removing the outdated reference to the compliance dates of Sec.
214.305.
BMWED/BRS submitted comments recommending that FRA retain and
clarify the advance notification requirement of the section, and
additionally suggested language clarifying the requirement for
railroads to maintain an on-track safety program approved by FRA.
BMWED/BRS also recommended requiring railroads amending or adopting an
on-track safety program notify FRA one month prior to the effective
date of any amendments to a program or implementation of a new program.
FRA agrees with BMWED/BRS's comment regarding the retention of the
advance notification requirement. FRA is retaining that existing
provision but moving it to paragraph (b) of this section. FRA agrees it
should continue to have advance notice so it can review new on-track
safety programs (or railroads' amendments to existing FRA-approved
programs). FRA is, however, amending this section to eliminate the
required formal review process for each new program and each amendment
to existing FRA-approved programs. Specifically, FRA is amending
paragraph (a) of this section to require railroads to maintain and make
their programs available to FRA upon request. This amendment will
enable FRA to better utilize its limited resources to focus on
addressing legitimate safety concerns with railroads' on-track safety
programs, rather than conducting mandatory formal reviews of programs
that, in some instances, been established and approved by FRA for many
years.
As proposed in the NPRM, FRA is also amending this section to
eliminate reference to the compliance dates in Sec. 214.305, because
as explained above, those dates are obsolete and this final rule
deletes Sec. 214.305. Given the deletion of Sec. 214.305, however,
FRA is amending paragraph (a) of Sec. 214.307 to specifically require
railroads to have an on-track safety program in effect by the date on
which each railroad's operations commence. Finally, FRA is adopting
proposed paragraph (b), but is re-designating it as paragraph (c) in
this final rule.
Section 214.309 On-Track Safety Manual
Existing Sec. 214.309, titled ``On-track safety program
documents,'' mandates, in part, that rules and operating procedures
governing track occupancy and protection be maintained together in one
manual and be readily available to all roadway workers. In the NPRM,
FRA proposed amendments to this section consistent with the consensus
language recommended by the Working Group. In this final rule, FRA is
amending this section to incorporate the definition for the new term
``on-track safety manual'' (see discussion of Sec. 214.7 above for
background on this newly-defined term). As proposed in the NPRM, FRA is
also amending the title of this section to reflect the new term ``on-
track safety manual.'' As proposed in the NPRM, new paragraph (a) of
this section incorporated the term ``on-track safety manual,'' and then
repeated the current existing text of Sec. 214.309. In response to
this proposal, for consistency with the new term ``roadway workers in
charge,'' BMWED/BRS suggested that FRA add the words ``in charge'' to
the second sentence of this paragraph (so that the sentence would
require RWICs responsible for the on-track safety of others and lone
workers to have and maintain a copy of the on-track safety manual). FRA
concurs, and, in final rule, is amending paragraph (a) consistent with
BMWED/BRS's suggestion.
In the NPRM, FRA intended new paragraph (b) to address the
difficulty a lone worker, such as a signal maintainer or a walking
track inspector, might experience carrying a large on-track safety
manual. FRA proposed that a railroad must provide an alternate process
for a lone worker to obtain on-track safety information. As proposed,
the alternate process could include use of a phone or radio for a lone
worker to contact an employee who has the on-track safety manual
readily accessible. In response to this proposal, BMWED/BRS suggested
FRA remove the reference to situations where it is impracticable for a
lone worker to
[[Page 37852]]
``carry'' the on-track safety manual, and instead refer to situations
where it is ``impracticable for the on-track safety manual to be
readily available'' to a lone worker. FRA agrees BMWED/BRS's proposed
language more accurately captures the requirement with regard to access
to the on-track safety manual, and is adopting that change in this
final rule.
Related to the ``alternative access'' provision of paragraph (b),
FRA is also adopting the Working Group's recommendation to require each
railroad's lone worker training program to include training on the on-
track safety manual alternative access requirement (see discussion of
Sec. 214.347 below).
As proposed, new paragraph (c) of this section provides for the
temporary publication of changes to a railroad's on-track safety manual
in bulletins or notices carried along with the on-track safety manual.
This proposed change recognizes that railroads often need to make
temporary or permanent changes to on-track safety rules and procedures
and to publish and distribute those new or revised requirements on an
as-needed basis. While any permanent amendments to a railroad's on-
track safety program must be incorporated into the on-track safety
manual, existing Sec. 214.309 does not allow for the temporary nature
of some documents or the practical difficulties with incorporating
permanent changes immediately after issuance.
In response to this proposal, consistent with their recommendation
in paragraph (b) of this section and noting that bulletins and notices
are not always literally ``carried'' by a RWIC or lone worker, the
BMWED/BRS suggested that FRA not require temporary bulletins and
notices to be ``carried'' with the on-track safety manual, but rather
any temporary publications be ``retained'' with the on-track safety
manual. FRA concurs with this suggestion and is adopting this change in
the final rule.
In response to proposed paragraph (c), BMWED/BRS also suggested
that to prevent ``an open-ended process where stacks of `temporary'
notices will ultimately supplant'' a railroad's on-track safety manual,
FRA should require employers to update their on-track safety manual at
least annually to incorporate any relevant changes. FRA declines to
adopt an annual update requirement because the RSAC did not recommend
the requirement, FRA did not propose the requirement in the NPRM, and
FRA data does not demonstrate a pattern of problems or accidents
resulting from a lack of updates to railroads' on-track safety manuals.
Even so, FRA encourages railroads to regularly update their on-track
safety manuals to ensure roadway workers have clear access to the most
current on-track safety rules.
Section 214.315 Supervision and Communication
Existing Sec. 214.315 mandates that railroads provide job
briefings to roadway workers assigned duties requiring the worker to
foul a track. Section 214.315 sets forth certain communication
requirements between members of a roadway work group, and, in the case
of a lone worker, between that lone worker and his or her supervisor or
other designated employee. The Working Group recommended FRA add new
requirements to this existing section, mainly addressing job briefing
terminology and the substance of the required job briefings. FRA
addressed most of these consensus recommendations in the adjacent track
rulemaking. 74 FR 74614. One recommendation FRA did not address in the
adjacent track rulemaking is the Working Group's recommendation to
require job briefing's to include information regarding the
accessibility of the RWIC to individual roadway workers and alternative
procedures if the RWIC is not accessible to members of the roadway work
group. In the NPRM, FRA proposed the Working Group's recommended
consensus language requiring employers to designate a substitute
employee with the relevant qualifications to serve as RWIC when a
roadway work group's original RWIC departs a work site for an extended
period of time. FRA is adopting that language in this final rule.
SEPTA commented on this proposed amendment noting the inconsistency
of the proposal with FRA Technical Bulletin G-05-07. Specifically,
SEPTA noted that Technical Bulletin G-05-07 states `` `when a RWIC
departs a work site for an extended period, a substitute employee with
relevant qualifications may be designated.' '' (Emphasis added.) SEPTA
specifically took exception to FRA's use of the word ``must'' in the
NPRM's preamble rather than the word ``may'' used in the technical
bulletin.
An RWIC is the person who establishes and directs the on-track
safety for a roadway work group, and it is critical that each roadway
worker in a roadway work group have access to the RWIC. Access is
necessary when a member of the group invokes a good faith challenge, or
when he or she has questions concerning the established on-track safety
protection. As discussed in FRA Technical Bulletin G-05-07, generally a
RWIC must be located in the immediate vicinity of the work activity,
but it may be necessary for a RWIC to depart a work location for a
short period to travel to another area encompassing the same work
activity (e.g., to conduct on-track safety checks throughout a large
mechanized production activity). When an RWIC is away from a work site
for a short period, it is imperative the roadway work group have a
readily available means to communicate with that person. When a RWIC
departs a work site for an extended period and is not readily available
to communicate with members of the roadway work group, the roadway work
group members effectively do not have a RWIC, as he or she is not at
the work group's location and cannot communicate with the group.
After carefully considering SEPTA's comment, FRA finds that
``must'' is correct. The RWIC is responsible for ensuring the on-track
safety of members of a roadway work group and must be readily available
to communicate with members of the group. Thus, FRA is adopting this
recommended consensus item as the NPRM proposed.
In the NPRM, FRA also proposed minor changes to existing paragraphs
(b), (c), and (d) to reflect that roadway work groups often include
multiple roadway workers and to ensure consistent use of the term
``roadway worker in charge'' and ``on-track safety job briefing''
throughout subpart C. FRA received no comments on these minor proposed
amendments and is adopting them in this final rule. For more background
on these amendments see the discussion in the preamble to the NPRM. 77
FR 50338.
Section 214.317 On-Track Safety Procedures, Generally
Existing Sec. 214.317 generally requires employers to provide on-
track safety for roadway workers by adopting on-track safety programs
compliant with Sec. Sec. 214.319 through 214.337. In the NPRM, FRA
proposed adopting two substantive amendments to this section
recommended by the Working Group. The first recommendation would impose
requirements for roadway workers who walk across railroad track in new
paragraph (b), and the second recommendation would provide new
exceptions for roadway workers conducting snow removal or weed spraying
operations on non-controlled track in new paragraph (c). FRA also
requested comment on whether it should amend subpart C to address using
tunnel niches or clearing bays less than four feet from the field side
of the
[[Page 37853]]
near rail. After consideration of comments received, FRA is adopting a
slightly modified new paragraph (b), paragraph (c) substantially as
proposed, and a new paragraph (d) to address the use of certain tunnel
niches and clearing bays. FRA is also redesignating the existing text
of Sec. 214.317 as paragraph (a) of the section to account for new
paragraphs (b), (c), and (d).
In the NPRM, FRA proposed new paragraph (b) in this section to
require roadway workers to (1) stop and look before crossing track and
(2) move directly and promptly across tracks. Proposed paragraph (b)
would also require railroads to adopt rules governing how roadway
workers determine if it is safe to cross track and clarify the section
is not a substitute for required on-track safety when roadway workers
are required to foul the track to perform roadway worker duties. As
explained in the NPRM, this proposal addresses the practical reality
that roadway workers often need to walk across tracks while not
directly engaged in activities covered by the existing RWP regulation.
For example, a roadway worker might incidentally walk from a work site
on a track in which working limits are in effect to a vehicle adjacent
to the right of way. While walking to the vehicle, a roadway worker may
have to cross over other ``live'' tracks where working limits or
another form of on-track safety is not in effect. Proposed paragraph
(b) is intended to prevent roadway workers from being struck by trains
or other on-track equipment when incidentally crossing track, while at
the same time recognizing the need for procedures enabling roadway
workers to cross tracks safely without formal on-track safety in place.
As proposed, paragraph (b) would have required roadway workers to
first stop and look in all directions a train or other on-track
equipment could approach from before starting across a track to ensure
they could safely clear the track before the arrival of any train or
other on-track equipment. FRA intended the proposal to provide an
opportunity for roadway workers to physically stop what they are doing
and consider the on-track circumstances before crossing live track.
SEPTA, BMWED/BRS, NJT, and AAR submitted comments in response to
this proposal. SEPTA's comment opposed a requirement that roadway
workers stop before crossing each track, explaining that a person who
would attempt to cross a track without proper sight distance or in a
high traffic area is not likely to stop and look in all directions
anyway, so the utility of such a provision would be minimal. NJT's
comment supported the requirement that roadway workers look in both
directions before crossing a track. BMWED/BRS supported requiring
roadway workers to look in all directions before starting across track,
but opposed requiring roadway workers to ``stop'' before crossing. The
labor organizations stated a requirement to stop: (1) Is unnecessary;
(2) would cause delays; (3) could lead to increases in slips, trips,
and falls; (4) is over-prescriptive; and (5) could subject roadway
workers to abuse by managers or FRA inspectors conducting safety
audits. AAR also opposed the requirement to ``stop'' before crossing,
stating there could be no expectation such a requirement would
regularly be followed, and railroads would then be liable for such
noncompliance.
After evaluating the comments, in this final rule FRA is not
adopting the proposed requirement that roadway workers stop and look in
all directions before crossing track. Commenters expressed unanimous
opposition to the proposed requirement and FRA recognizes it would be
very difficult to enforce. FRA believes stopping and looking before
crossing railroad track is also a matter of common sense and a
necessary reality roadway workers are already faced with. Thus, while
in this final rule FRA is not adopting the proposed language requiring
roadway workers to stop and look before crossing tracks, FRA is
adopting the remaining portions of proposed paragraph (b). New
paragraph (b) requires roadway workers to move directly and promptly
across tracks and railroads to adopt rules governing how roadway
workers determine if it is safe to cross track. Consistent with the
proposal in the NPRM, as adopted in this final rule, paragraph (b) also
clarifies the requirements of the paragraph are not a substitute for
required on-track safety when roadway workers are required to foul the
track to perform roadway worker duties. For further background on when
on-track safety is required for roadway workers, see the discussion in
the preamble to the NPRM. 77 FR 50339-50340.
FRA is also adopting the Working Group's recommendation to require
a railroad's safety rules governing walking across railroad tracks to
be included in all roadway worker training. As proposed in the NPRM,
FRA has adopted this recommended training requirement in the roadway
worker training provision at Sec. 214.345 (discussed below).
New paragraph (c) of this section addresses the Working Group's
recommendation for on-track snow removal and weed spraying on non-
controlled track. As proposed, paragraph (c) permits on-track snow
removal and weed spraying operations on non-controlled track without
requiring the track to be made inaccessible under Sec. 214.327. FRA
intends the provision to alleviate the difficulty of establishing
working limits on non-controlled track for operating equipment moving
over long distances, and where roadway workers are conducting limited
to no on-ground work activities.
After careful consideration of comments responding to proposed
paragraph (c), in this final rule, FRA is adopting the paragraph
substantially as proposed. Paragraph (c) allows weed spraying and snow
removal operations under Sec. 214.301, with the limitations and/or
conditions listed in paragraphs (c)(1) through (4) of the paragraph.
AAR's comments advocated expanding this provision to allow inspection
activities under the same circumstances, but noted the Working Group
did not discuss this possibility. Because the Working Group did not
discuss this possibility, and FRA did not propose it, FRA declines to
include inspection activities in the activities covered by paragraph
(c). Also, FRA believes allowing expansion of this exception to include
inspection activities would present safety risks as ``inspection
activities'' may entail many different roadway worker activities, and
are not of the specialized and more limited nature of the specific snow
removal and weed spray operations the Working Group addressed. Further,
Sec. 214.301 already covers certain inspection activities while
roadway maintenance machines are in ``travel'' mode, and hi-rail
inspection activities are also already subject to certain on-track
safety exclusions under Sec. 214.336. Thus, FRA is retaining the
existing on-track safety requirements for work activities other than
the specific snow removal and weed spray operations the Working Group
addressed.
Paragraph (c)(1) requires railroads to adopt and comply with
procedures for on-track snow removal and weed spraying operations if
the allowances under paragraph (c) are utilized. Paragraphs (c)(1)(i)
through (iv) set minimum standards for what those procedures must
include. Paragraph (c)(1)(i) requires all on-track movements in the
area where on-track snow removal or weed spraying operations are
occurring be informed of those operations. AAR's comment opposed this
requirement, stating it is unnecessary and problematic in areas
[[Page 37854]]
without radio reception. In response, FRA notes that in areas without
radio reception it may be likely there are no other persons conducting
on-track movements in the ``affected area'' required to be notified.
Further, there are communication methods other than radio if a railroad
wishes to utilize the exception in Sec. 214.317(c) in an area without
radio reception. FRA also emphasizes paragraph (c) is an exception to
the requirement to establish on-track safety, and FRA anticipates that
in the majority of instances this exception can be utilized for, radio
reception will not be an issue. If radio reception is an issue and
there is no other way to inform others making on-track movements in the
area of snow removal or weed spraying operations, railroads will have
to follow existing methods of establishing on-track safety to perform
the work.
As proposed in the NPRM, paragraph (c)(1)(ii) of this final rule
requires railroads' procedures to ensure all weed spraying and snow
removal operations conducted under paragraph (c) operate at restricted
speed defined in Sec. 214.7; except on other than yard tracks and yard
switching leads, where movements may operate at no more than 25 miles-
per-hour (mph) and must be prepared to stop within one-half the range
of vision. Paragraph (c)(1)(iii) requires the procedure adopted by a
railroad to ensure there is a means of communication between on-track
equipment conducting snow removal and weed spraying operations and any
other on-track movements in the area.
Paragraph (c)(1)(iv) prohibits remotely controlled hump yard
facility operations from being in effect while snow removal or weed
spraying operations are in progress and also prohibits the kicking of
cars unless agreed to by the RWIC of the snow removal or weed spraying
operation. The prohibition on kicking cars is intended to help ensure
there is no free rolling equipment near on-track snow removal or weed
spraying operations. Thus, before machines can operate under this
provision in remotely controlled hump yard facilities, humping
operations must be suspended. As explained in the NPRM, in proposing to
prohibit weed spraying and snow removal operations when hump yard
operations are ``in effect,'' FRA considered AAR's post-RSAC
recommendation to instead prohibit weed spraying and snow removal
operations when hump operations are ``in progress.'' BMWED's post-RSAC
comment stated it favored ``in effect,'' because that term is more
inclusive as hump operations might be ``in effect'' but not actually
``in progress'' (e.g., cars not literally being humped right at the
moment that weed spraying operations begin). FRA agreed with the
BMWED's position, and proposed the initial Working Group's consensus
wording of ``in effect,'' but requested further comment on this issue
from all interested parties.
In response to the NPRM proposal, the BMWED/BRS comment reconfirmed
the labor organizations' support for the term ``in effect'' for the
status of hump yards. BMWED/BRS stated if ``hump yard operations are
not `in effect', that would mean that humping operations have been
suspended until released back to the hump by the RWIC.'' The labor
organizations objected to using the term ``in progress'' because hump
operations are not suspended just because humping may not actually be
``in progress'' at a particular moment.
After considering these additional comments, FRA continues to agree
with BMWED/BRS's recommendation to prohibit snow removal and weed
spraying operations when hump yard operations are ``in effect.'' This
language makes clear FRA's intent for no humping operations to take
place until a roadway work group utilizing this section reports clear
of hump yard tracks that present the possibility of being struck by
humped cars. Thus, FRA is adopting the language it proposed in the
NPRM.
FRA does not intend that the only way the exceptions in this
section may be utilized is to shut down an entire classification yard.
Rather, FRA's intent is the hump operations must not be in effect for
the tracks (or group of tracks) that would be affected by snow removal
or weed spray operations. For example, under this section it is
permissible for a block to be placed on a group of tracks within a
classification yard where snow blowing activities are taking place,
such that equipment could not be humped into those tracks until the
roadway work group utilizing this section reports clear of those
tracks.
Paragraph (c)(2) provides that roadway workers engaged in snow
removal or weed spraying operations retain an absolute right to utilize
the provisions of Sec. 214.327 (inaccessible track). FRA is adopting
this provision as proposed.
Paragraph (c)(3) provides that roadway workers engaged in snow
removal or weed spraying operations subject to Sec. 214.317 can line
switches for the machine's movement without establishing a form of on-
track safety under Sec. Sec. 214.319 through 214.337, but may not
engage in any roadway work activity. In its comments, AAR recommends
amending this provision to include the lining of derails. FRA agrees
with AAR's recommendation as applied to derails lined via switch
stands. The lining of derails by switch stand does not typically
require fouling the track. FRA does not agree with AAR's recommendation
for derails not operated via switch stands. These derails require
roadway workers to bend down onto the rail (or directly adjacent to and
in the foul of the rail) to operate the derail. Thus, FRA is adding the
words ``or derails operated by switch stand'' to this provision. For
derails not operated by switch stand, a method of on-track safety
complaint with subpart C is required.
As proposed and adopted in this final rule, paragraph (c)(4)
contains the consensus recommendation of the Working Group for the
roadway equipment utilized under this provision. Paragraph (c)(4)
requires that each machine engaged in snow removal or weed spraying
operations under Sec. 214.317(c) be equipped with: (1) An operative
360-degree intermittent warning light or beacon; (2) an illumination
device, such as a headlight, capable of illuminating obstructions on
the track ahead in the direction of travel for a distance of 300 feet
under normal weather and atmospheric conditions; (3) a brake light
activated by the application of the machine braking system, and
designed to be visible for a distance of 300 feet under normal weather
and atmospheric conditions; and, (4) a rearward viewing device, such as
a rearview mirror. If a machine is utilized in snow removal or weed
spraying operations conducted during the period between one-half hour
after sunset and one-half hour before sunrise, or in dark areas such as
tunnels, that machine must also be equipped with work lights, unless
equivalent lighting is otherwise provided. AAR commented that paragraph
(c)(4) does not address what happens when there is an equipment
failure, such as if a machine's headlight burns out. AAR suggested that
railroads be permitted to operate the equipment under Sec. 214.317 for
seven days after learning of a failed component. FRA declines to adopt
AAR's suggested amendment. As noted above, Sec. 214.317(c) is designed
as an exception to the current requirement to establish on-track safety
while certain roadway work activities are performed. FRA believes under
the provisions of this paragraph the specified activities can be
conducted safely. When equipment fails, such as a headlight in AAR's
example, the safety of the operation is potentially compromised.
Accordingly, when equipment required
[[Page 37855]]
by this section fails, railroads must default to part 214's existing
on-track safety requirements until the equipment is repaired and
operating.
Finally, in the NPRM, FRA requested comment on using certain
existing tunnel niches (also referred to as clearing bays) as places of
safety for roadway workers. As explained in detail in the NPRM (77 FR
50331), some existing railroad tunnels have niches built into the
sidewalls that roadway workers occupy as places of safety while
performing work in tunnels (typically inspection work). Some of the
niches may, by design, be slightly less than four feet from the field
side of the near rail. Because existing subpart C does not address
using tunnel niches as places of safety, the use of niches less than
four feet from the field side of the near rail as a place of safety
technically violates the existing regulation because a roadway worker
occupying the niche would be ``fouling a track'' as defined by Sec.
214.7. The Working Group discussed this issue but did not reach
consensus. The Working Group did, however, decide against modifying the
definition of ``fouling a track'' to accommodate using tunnel niches.
Working Group discussions indicated tunnel niches outside the clearance
envelope, but less than four feet from the field side of the rail,
existed on a small number of railroads, primarily in the Eastern United
States, and those railroads have a long history of safely utilizing the
niches.
FRA did not propose specific regulatory text regarding the use of
tunnel niches, but requested comment on whether, and how, to address
the issue in a final rule. FRA listed certain items it anticipated a
regulatory provision allowing using tunnel niches would need to include
(e.g., railroad designation of niches, time for a roadway worker to
move into a niche upon the approach of a train, that niches must be
free from debris).
In response to its request for comments on tunnel niches, FRA
received comments from SEPTA, MTA, BMWED/BRS, APTA, and AAR. SEPTA's
comment stated that using tunnel niches as a safe place should be
allowed if individuals using the niches are not at risk of being struck
by moving on-track equipment. MTA's comment supported using niches as a
safe place for roadway workers, and indicated railroads should review
each niche location before designating it as a safe place. BMWED/BRS's
comment opposed using tunnel niches less than four feet from the near
running rail as a place of safety. Citing the presence of debris,
vagrants, rats, spiders, mice, raccoons and other hazards, and noting
that conditions such as claustrophobia could cause roadway workers to
panic and jump out of a tunnel niche into the path of an oncoming
train, BMWED/BRS indicated its members typically establish working
limits before entering tunnels with close side clearances. BMWED/BRS
also expressed concern about roadway work groups exceeding the capacity
of a tunnel niche, potentially resulting in one or more roadway workers
being left out in the foul with no ability to reach an alternative
place of safety.
In its comments, AAR disagreed with BMWED/BRS noting that,
particularly in the Northeast United States, railroads have safely used
tunnel niches for a century. AAR specifically noted Amtrak's use of
tunnel niches as places of safety for inspectors and argued that given
the decades of experience demonstrating that tunnel niches can be
safely used, FRA should permit Amtrak to continue to use tunnel niches.
APTA's comment indicated that tunnel niches, clearing bays on
bridges, and passenger platforms all provide appropriate clearance of
the envelope of train and equipment passage and all are safe places
with ``no historical incident data'' supporting the need for FRA to
establish additional regulatory provisions to improve their safety.
Finally, APTA recommended FRA allow using tunnel niches, clearing bays
on bridges, and platforms as designated places of safety and require
analysis of any related potential safety issues under FRA's future risk
reduction and system safety regulations.
After further evaluating this issue and considering the comments
received, in this final rule FRA is adopting new paragraph (d) in Sec.
214.317 authorizing, subject to certain conditions, the use of existing
tunnel niches or clearing bays less than four feet from the nearest
rail as places of safety for roadway workers. Although FRA recognizes
some railroads have successfully used tunnel niches and clearing bays
as designated places of safety for roadway workers for some time,
existing subpart C technically prohibits such use. New paragraph (d) of
Sec. 214.317 sets minimum standards for the use of such existing
niches to ensure their continued safe use. Consistent with existing
Sec. 214.337(b) applicable to lone workers and Sec. 214.317(c)(2)
adopted in this final rule for certain snow removal and weed spraying
operations, paragraph (d) also makes clear RWICs and lone workers
maintain the absolute right to designate a place of safety in a
location other than a tunnel niche or to establish working limits if
appropriate.
Paragraph (d) authorizes only using tunnel niches and clearing bays
that have a place of safety less than four feet from the field side of
the near rail in existence on the effective date of this final rule, if
the conditions of paragraphs (d)(1) and (2) are met. Paragraph (d)(1)
requires RWICs or lone workers to inspect each tunnel niche or clearing
bay prior to determining the niche is suitable to use as a place of
safety. Consistent with the requirements of Sec. Sec. 214.329 and
214.337, paragraph (d)(2) requires a RWIC or lone worker to determine
if there is adequate sight distance to permit roadway worker(s) to
occupy the place of safety in the niche or clearing bay at least 15
seconds prior to the arrival of a train or other on-track equipment at
the work location.
Finally, like existing Sec. 214.337's provision providing lone
workers with the absolute right to establish alternate methods of on-
track safety, paragraph (d)(3) gives the RWIC or lone worker the
absolute right to designate a place of safety in a location other than
a tunnel niche or clearing bay, or to establish working limits if
appropriate.
Compliance with this new paragraph will ensure the continued safe
use of existing tunnel niches, as the RWIC or lone worker is required
to visually inspect each niche and determine the proper sight distance
to utilize each niche before designating the niche a safe place.
Moreover, by providing RWICs and lone workers the absolute right to
designate a place of safety other than a tunnel niche which might be
less than four feet from a running rail, or to utilize another method
of establishing on-track safety, FRA believes BMWED/BRS's safety
concerns are alleviated.
Section 214.318 Locomotive and Car Shop Repair Track Areas
In the NPRM, FRA requested comment on potentially amending subpart
C and/or the existing blue signal regulations in part 218, subpart B to
provide a limited exception from part 214's on-track safety
requirements for using blue signal protections for certain incidental
work performed by mechanical employees within the limits of locomotive
servicing and car shop repair track areas (shop areas). FRA did not
propose specific regulatory text on this issue, but indicated it might
adopt a provision addressing this topic in a final rule. For the
reasons explained below, in this final rule FRA is amending subpart C
by adding a new Sec. 214.318 addressing incidental work performed in
locomotive servicing and car shop repair track areas. This amendment
allows ``workers,'' as defined by Sec. 218.5, to utilize blue signal
[[Page 37856]]
protections in place of subpart C's on-track safety procedures.
As discussed in the NPRM, subpart C currently requires ``roadway
workers'' performing work with the potential to foul a track within a
locomotive servicing or car shop repair track area (including
performing work on signals or structures within those areas that may
involve fouling track) to utilize the on-track safety procedures of
subpart C. Conversely, any ``workers,'' as defined by Sec. 218.5
(typically mechanical department employees), performing work involving
the inspection, testing, repairing, or servicing of rolling equipment
within locomotive servicing or car shop repair track areas are required
to do so in compliance with the blue signal regulations. Because
certain incidental duties ``workers'' under Sec. 218.5 typically
perform in shop areas often technically meet the definition of the type
of work a ``roadway worker'' would do (e.g., mechanical department
employee performing work on the overhead door of a locomotive
maintenance building when such work involves fouling a track),
questions arose over what protections are appropriate within shop
facilities for certain types of ``incidental'' work performed by
mechanical department employees (i.e., ``workers'' under Sec. 218.5).
FRA's Technical Bulletin G-08-03 addresses this issue, and explains
FRA will not take enforcement action for ``incidental'' work performed
in shop areas similar to roadway worker duties (e.g., sweeping a shop
floor or changing a light bulb in an inspection pit). Despite Technical
Bulletin G-08-03, many railroads argue shop personnel (``workers''
under Sec. 218.5) are already trained on the blue signal regulations
and believe FRA should exempt certain work within shop areas from the
subpart C on-track safety requirements. Railroads argue shop employees
perform the work safely utilizing the blue signal protections they are
trained on and most familiar with. Railroads further argue that
training shop personnel on two different protection regimes is both
costly and confusing for the employees. Thus, railroads argue the
requirement to require using the on-track safety protections of subpart
C by ``worker'' in shop areas is detrimental to safety.
In the NPRM, FRA requested comment on potential amendments to the
existing part 214 or 218 to address this issue. Because contractor
employees are subject to part 214 but not part 218's blue signal
requirements, FRA also specifically asked how best to address applying
these requirements to contractor employees.
FRA received six comments in response to this request from APTA,
AAR, BMWED/BRS, ASLRRA, MTA, and SETPA. According to APTA, the existing
blue signal and RWP regulations are adequate for work performed in shop
areas and there is no accident history supporting concerns about this
issue. AAR's comment acknowledged the controversy, but noted that for
decades blue signal protection has proven to be an effective way to
provide for the safety of employees in shop areas. AAR reasoned if blue
signal protection adequately protects employees when working on rolling
stock, it also will adequately protect employees performing other
incidental activities in shop areas. From a safety perspective, AAR
stated employees should be permitted to utilize the method of
protection they are most familiar with--for mechanical employees within
shop areas, that is blue signal protection (part 218), and for roadway
workers it is roadway worker protections under part 214, subpart C. AAR
also recommended FRA treat contractors the same as railroad employees.
AAR also asserted significant additional costs would result if FRA
does not permit mechanical employees who might foul track while
performing their duties inside a shop area to utilize blue signal
protection as opposed to RWP protection, and noted certain potential
drug and alcohol testing implications. AAR explained costs would be
incurred for: (1) Providing additional training; (2) placing RWICs in
shop areas; and (3) purchasing additional switch locks. AAR indicated
one large railroad estimated initial costs at $1.2 million, and costs
of $700,000 in subsequent years. AAR proposed specific rule text for
parts 214 and 218 to permit employees in shop areas to use blue signal
protections under part 218, instead of complying with the RWP
requirements of part 214.
In its comments, ASLRRA disagreed with FRA's explanation in the
NPRM of certain activities within shop areas being subject to the on-
track safety regulations of part 214. ASLRRA said FRA's position,
consistently applied, would require railroads to use blue signal
protection to repair a roadway maintenance machine irrespective of the
repair location. ASLRRA urged FRA to not change the regulations.
BMWED/BRS's comment stated the type of work being performed governs
whether the blue signal regulations or the RWP regulations apply and
argued against any change eliminating the distinction between the two
different forms of protection.
Noting the existing blue signal protection requirements provide a
proven level of Safety, SEPTA's comment indicated the railroad industry
would be better served if mechanical department employees could perform
certain facility-maintenance work within the limits of shop areas using
blue signal protection rather than the on-track safety requirements of
part 214. Further, SEPTA stated any inconsistency in the forms of
protection employees utilize increases the potential for confusion and
reduces safety. SEPTA also questioned if the original RWP rulemaking
even considered applying the on-track safety requirements in shop areas
and expressed doubt that the intended scope of the original RWP
regulation even covered work in shop areas.
MTA's comment indicated the primary consideration in deciding what
protections to follow in shop areas should be whether employees are
adequately protected while performing their assigned duties. MTA
asserted it would be overly prescriptive to require employees to be
familiar with different types of protection and recommended individual
railroads determine the appropriate type of protection employee's
should use based on the specific task being performed.
FRA believes the assertion that part 214 as it currently exists
does not apply in shop areas is without merit. FRA notes the discussion
in the NPRM preamble titled ``RWP and Blue Signal Protection in Shop
Areas'' (77 FR 50329-50330) did not, as AAR and ASLRRA suggested in
their comments, attempt to expand the scope of the existing RWP and
blue signal regulations. Rather, the discussion described the existing
state of interplay between the two regulations. FRA is puzzled by AAR's
comment asserting estimated additional costs would be incurred to
comply with the requirements of the RWP regulation in place since 1997.
FRA agrees it is not in the best interests of safety to apply the
requirements of part 214 to certain activities in shop areas not
involving work on, under, or between rolling equipment. FRA notes,
however, the existing regulations do not allow certain work to be
conducted in shop areas without on-track protection under part 214.
Thus, compliance with the existing regulation could not impose
additional new costs to railroads as AAR's comment states.
FRA also disagrees with the ASLRRA comment asserting ``[i]f one
were to apply FRA's logic consistently . . .
[[Page 37857]]
every time a roadway maintenance machine broke down and had to be
repaired on any track, blue signal protections would have to be
applied, whether in a yard or on a main track.'' FRA cannot envision
how the existing regulations could require blue signal protections be
applied to repair of roadway maintenance machines as ASLRRA's comment
asserted. The existing blue signal protection regulation (part 218,
subpart B) applies to work performed on, under, or between ``rolling
equipment.'' The part 218 definition of the term ``rolling equipment''
(locomotives and cars), and the corresponding definition of the term
``locomotive,'' do not include roadway maintenance machines. Repairs to
roadway maintenance machines are specifically covered by the definition
of ``roadway worker'' in part 214. Therefore, the literal application
of the regulations would not require blue signal protections be applied
to repair of roadway maintenance machines as ASLRRA's comment asserted.
FRA generally agrees with the comments of BMWED/BRS, SEPTA, and MTA
and believes allowing railroad employees and contractors to utilize the
procedures they are trained on and most familiar with provides clear
direction and consistency and will actually eliminate confusion and
increase safety. FRA agrees with SEPTA's comment that the original RWP
rule did not specifically discuss maintenance work performed in shop
areas. BMWED/BRS argued against FRA eliminating any distinction between
RWP protection and blue signal protection and warned doing so could
present unforeseen consequences. FRA does not believe providing
railroads with the flexibility to use blue signal protection or RWP
protection in certain instances within shop facilities in any way
eliminates a distinction between the two forms of protection. Finally,
FRA believes new Sec. 214.318 addresses both SEPTA and MTA's stated
concerns as ``workers'' in shop areas will be permitted to utilize blue
signal protections in most instances to ensure they are protected while
performing their assigned duties.
For all the reasons discussed above, in this final rule, FRA is
amending part 214 to permit ``workers'' (as defined by Sec. 218.5), in
certain instances, to utilize the blue signal protections of part 218,
subpart B (as opposed to the on-track safety requirements of part 214)
in locomotive servicing and car shop repair track areas when fouling
track while performing duties incidental to inspecting, testing,
servicing, or repairing rolling equipment. FRA believes this is the
reasonable and logical application of parts 214 and 218 in locomotive
servicing and car shop repair track areas. Although FRA is not adopting
the specific regulatory language amending both parts 214 and 218 AAR
suggested, FRA believes new Sec. 214.318 accomplishes the same goal.
As noted by several commenters, for decades ``workers'' have
successfully used blue signal protections in shop areas. In general,
when blue signal protections are applied on a track, the regulations
prohibit: (1) The movement of equipment on the track (except under the
very specific conditions described in Sec. 218.29); (2) coupling to
any equipment on the track; and (3) rolling equipment from passing a
blue signal. These requirements ensure worker safety by prohibiting the
movement of equipment on a protected track. As SEPTA's comments noted,
the conditions in shop areas (where mechanical employees repair rolling
equipment secured from movement) are different than situations the RWP
regulation typically addresses (e.g., maintenance-of-way workers
working along the railroad right-of-way where trains and other on-track
equipment pass). FRA does not believe safety is improved by mandating
that a railroad employee be trained on, and comply with, the
requirements of the blue signal regulation to safely tighten a bolt on
a locomotive, and also be trained on and apply the differing
requirements of the RWP regulation while standing in the exact same
location to perform the incidental work of tightening a bolt on an
overhead door. Such a literal approach to the regulations introduces
the potential for confusion and the misapplication of the differing
requirements, and is also not cost effective, efficient, or reasonable.
Accordingly, new Sec. 214.318(a) reasonably allows ``workers'' (as
defined by Sec. 218.5) within the limits of locomotive servicing and
car shop repair track areas (as also defined by Sec. 218.5) to utilize
a railroad's blue signal protection procedures to perform duties
incidental to their work on, under, or between rolling equipment while
fouling a track protected by blue signal(s). If a railroad chooses to
allow ``workers'' to use blue signal protections authorized by this new
section, paragraph (a) also requires the railroad rules address how
those protections apply to the incidental duties ``workers'' perform.
By ``incidental'' duties, FRA means duties within the shop area such as
working on a shop door, sweeping excess ballast off a shop floor or
away from a work area, cleaning up fluid spills in the gage of the
track in a work area, or performing electrical work in a locomotive
shop to an appliance such as an exhaust hood above a track. FRA
emphasizes that for this new section to apply, all work must be
performed on a track protected by blue signals as required by part 218,
subpart B.
This new section does not require railroads to use blue signal
protections instead of part 214 on-track safety procedures where
applicable inside shop areas. Instead, this new section only gives
railroad's the option to decide the appropriate form of protection for
``workers'' in shop areas. Roadway workers still must comply with part
214 when fouling track within a shop area. For example, if a signal
department employee fouls a track in a shop area while performing work
on an electronic system controlling the blue signal display within the
shop area, that employee must comply with part 214's on-track safety
requirements because as a signal department employee, he or she is not
a ``worker'' under Sec. 218.5 who inspects, tests, services, or
repairs rolling equipment. Similarly, bridge and building department
employees required to foul track while building a structure within a
shop area also still must establish on-track safety under part 214
because bridge and building department employees are clearly not
``workers'' under part 218 (they do not inspect, test, service, or
repair rolling equipment).
Paragraph (b) of this section addresses how this section applies to
contractor employees. As discussed in the NPRM, although the on-track
safety requirements of part 214 apply to contractor employees, FRA's
blue signal regulations do not. Typically, however, railroad rules
require contractors to follow the railroad's blue signal procedures
when performing work within shop areas. As noted above, AAR recommended
FRA treat contractors the same as railroad employees for purposes of
what protections apply to those employees while performing the same
work as railroad employees. FRA agrees, but because contractor
employees do not meet part 218's definition of ``workers,'' FRA cannot
enforce part 218's requirements on contractors. Accordingly, in
paragraph (b), FRA is extending application of paragraph (a) of this
section to contractor employees, but only if the contractor employee's
work is supervised by a railroad employee qualified on the railroad's
rules and procedures implementing the requirements of part 218, subpart
B. Thus, if a railroad elects to use the exception in paragraph (a), a
contractor within a shop area performing duties incidental to those of
inspecting, testing, servicing, and repairing rolling equipment may
perform the work
[[Page 37858]]
utilizing the railroad's blue signal protections, if the contractor
employee is supervised by a railroad employee qualified (as defined by
Sec. 217.9) on the railroad's blue signal rules
For example, if a railroad elects to use the exception in paragraph
(a) of this section, a contractor employee servicing a shop building's
exhaust hood above idling locomotives on a track protected by blue
signals may do so under the supervision of a blue signal-qualified
railroad employee. If a railroad does not elect to use the exception in
paragraph (a), or the contractor employee is not supervised by a blue-
signal qualified railroad employee, the contractor would be subject to
the RWP requirements of subpart C of part 214 when servicing the
exhaust hood because the employee would be a ``roadway worker,'' under
Sec. 214.7.
Similarly, if a railroad elects to use the exception in paragraph
(a), and implements rules governing its use, if a contractor employee
vacuums water from a switch in a locomotive shop on track protected by
blue signals and his her work is supervised by a blue signal-qualified
railroad employee, the contractor need only comply with the railroad's
blue signal requirements. If the contractor employee is not supervised
by a blue signal-qualified employee while performing this duty, the
contractor must comply with the on-track safety requirements of part
214 because the work performed makes the contractor a ``roadway
worker'' per existing Sec. 214.7.
Paragraph (c) of this new section requires compliance with part
214, subpart C, for any work performed within a shop area requiring the
presence of a person qualified under Sec. 213.7 of FRA's Track Safety
Standards. FRA intends this paragraph to make clear traditional
inspection, construction, maintenance, or repair of railroad track
affecting the ability of rolling equipment to move safely over that
track continues to be governed by the on-track safety requirements of
part 214, regardless of the craft of a particular employee (or whether
the employee(s) are railroad employees or contractors) performing the
work. FRA intends this provision to prevent situations where
``workers'' who are not qualified to perform maintenance-of- way duties
perform such duties in a shop or locomotive repair area, potentially
affecting the safe movement of rolling equipment over track structures.
To determine if railroad employees or contractors working in shop
areas are ``workers'' under Sec. 218.5 (and can use blue signal
protection) or roadway workers under Sec. 214.7 (and required to
establish on-track safety under part 214), FRA will look to the
employee's primary duties and the primary purpose of the work performed
(whether the work is performed on, under, or between rolling equipment
or incidental to work performed on, under, or between rolling
equipment). Examples include:
A mechanical department employee whose primary duty is
performing electrical work on locomotives, but to access part of a
locomotive to perform such work, fouls a track while shoveling snow
from the gauge of the track on which the locomotive is located (and on
which blue signal is applied). This mechanical department employee's
primary duties involve the inspection, testing, repair, or servicing of
rolling equipment. As such, shoveling snow off the track to access the
locomotive is performing duties incidental to his or her primary
duties. FRA would consider this employee a ``worker'' under Sec.
218.5, and if the railroad elected to utilize the paragraph (a)
exception in this section, the employee could use the railroad's blue
signal procedures as opposed to establishing on-track safety under part
214.
A railroad engineering department employee who is assigned
to repair a switch in a locomotive shop area is a ``roadway worker''
who requires on-track safety compliant with part 214 because the
primary duties of engineering department employees do not typically
include testing, inspecting, servicing, or repairing rolling equipment.
Rather, the primary duties of engineering department employees
typically involve the maintenance and repair of railroad track.
A railroad employee replacing concrete in front of the
doors of a shop to ensure an adequate flangeway for the wheels on
rolling stock must establish on-track safety under part 214, because
such duties are not ``incidental'' to work on, under, or between
rolling equipment and because the work likely requires the presence of
a person qualified under Sec. 213.7.
FRA understands not all examples will be so obvious, particularly
on smaller railroads where one employee may fill many roles. In such
instances FRA would look to the primary purpose of the work being
performed, and whether such work was related to that performed on,
under, or between rolling equipment. As a practical matter, if an
employee of a small railroad routinely performs varying jobs' functions
involving both maintenance-of-way work, work traditionally thought of
as mechanical work on rolling equipment, the employee already must be
trained the on-track safety requirements of part 214 when performing
``roadway worker'' duties, and likewise, must be trained on blue signal
protection under part 218 when working on, under, or between rolling
equipment.
In developing this final rule, FRA considered adopting a
requirement for RWICs of roadway work groups performing work within the
limits of locomotive shop or car shop repair track areas to notify the
person in charge of workers in the shop prior to beginning work. FRA
believes such a notification procedure may be useful in situations
where unknown to the person in charge of the workers in the shop area,
a roadway work group uses derails or other protections to establish
working limits in the shop area. Due to cost considerations, FRA is not
adopting such a notification requirement in this rule. However, FRA
encourages railroads, as circumstances may warrant, to adopt such a
procedure. FRA will continue to monitor this issue and may implement
such a notification requirement in a future rulemaking.
Upon the effective date of this final rule, FRA Technical Bulletins
G-05-21 and G-08-03 are supplanted. Those technical bulletins are no
longer valid in light of the adoption of new Sec. 214.318 here.
Section 214.319 Working Limits, Generally
Existing Sec. 214.319 sets forth the requirements for establishing
working limits consistent with subpart C. FRA is making several changes
to this section in the final rule. First, FRA redesignated the last
sentence of the existing introductory text of this section as paragraph
(a), and redesignated existing paragraphs (a)-(c) of this section as
paragraphs (a)(1) through (3). This amendment is only structural and
not intended to be substantive in nature to accommodate adding new
paragraph (b) of this section (discussed below).
As proposed in the NPRM, FRA is replacing ``roadway worker'' in
newly designated paragraphs (a)(1) and (2) with ``roadway worker in
charge.'' These revisions are consistent with the use of the new term
``roadway worker in charge'' discussed in the Section-by-Section
analysis of that term in Sec. 214.7 and clarify that only a roadway
worker who is qualified in accordance with Sec. 214.353 can establish
or have control over working limits for the purpose of establishing on-
track safety.
In the NPRM, FRA also proposed amending the introductory paragraph
of Sec. 214.319 to reference the ``verbal protection'' method of
establishing
[[Page 37859]]
working limits proposed in new Sec. 214.324. However, as explained
above, in this final rule FRA is not adopting the proposed ``verbal
protection'' provision, so the reference to that section is no longer
necessary.
Next, FRA is adding new paragraphs (b) and (c) to this section. In
the NPRM, in response to NTSB Safety Recommendation R-08-06, FRA asked
if railroads should be required to utilize redundant forms of working
limits protection when a roadway work group depends on a train
dispatcher or control operator to provide signal protection when
working limits are established in signalized controlled track
territories. NTSB issued Safety Recommendation R-08-06, after a 2007
accident near Woburn, Massachusetts in which two Massachusetts Bay
Transportation Authority (MBTA) maintenance-of-way employees died. At
the time of the accident, MBTA's rules required roadway workers to
shunt track circuits to provide redundant signal protections to prevent
trains or other rolling equipment from entering working limits. NTSB
found the roadway work group involved in the accident did not comply
with that rule and cited two probable causes of the accident: (1) The
roadway work group's failure to apply a shunting device under the
railroad's rule; and (2) the train dispatcher's failure to maintain
blocking that provided signal protection for the track segment occupied
by the working group.\6\ In Safety Recommendation R-08-06, NTSB
recommends that FRA ``[r]equire redundant signal protection, such as
shunting, for maintenance of way work crews who depend on the train
dispatcher to provide signal protection.'' In 2013, NTSB reiterated
Safety Recommendation R-08-06 to FRA after an accident in which a
Metro-North maintenance-of-way employee was struck and killed by a
train in Connecticut.\7\
---------------------------------------------------------------------------
\6\ See NTSB Accident Report NTSB/RAR-0801, ``Collision of
Massachusetts Bay Transportation Authority Train 322 and Track
Maintenance Equipment near Woburn, Massachusetts, January 9, 2007;''
available online at: http://www.ntsb.gov/doclib/reports/2008/RAR0801.pdf.
\7\ http://www.ntsb.gov/doclib/recletters/2013/R-13-17.pdf .
---------------------------------------------------------------------------
FRA notes that both the 2007 MBTA and the 2013 Metro-North
accidents involved violations of the existing requirements of subpart
C. In both instances the train dispatchers did not maintain the
required blocking devices, allowing train movements into the roadway
work groups' established working limits without the relevant RWIC's
knowledge. See, e.g., Sec. 214.321(d). Despite the fact that FRA's
regulations already prohibit the actions that led to these accidents,
FRA recognizes more can be done to try to prevent these types of
mistakes from causing future tragedies.
In response to FRA's request for comment regarding a potential
redundant protection requirement, AAR, NTSB, SEPTA, BMWED/BRS, APTA,
MTA, NJT, and an individual, submitted comments. NTSB urged FRA to add
a provision in this final rule requiring using redundant forms of
protection such as shunting. AAR urged FRA not to adopt such a
provision, indicating it would be counterproductive from a safety
perspective. AAR stated such a provision would be counterproductive
because shunting cannot be relied on due to: (1) The characteristics of
track infrastructure that lead to periodic loss of shunt for certain
equipment; (2) the susceptibility of shunts to work only intermittently
when used near signal islands; and (3) the lack of reliability of
individual locomotives or roadway maintenance machines to shunt. AAR's
comment pointed to the safety issues shunting presents in some
circumstances, specifically grade crossing warning device malfunctions
and signal system interference, and to concerns related to cost,
training, and the practicality of shunting requirements (e.g., trying
to shunt as a roadway worker conducts walking track inspections or
mobile weed spray operations). BMWED/BRS supported using redundant
forms of protection, if it does not interfere with grade crossing
warning devices. BMWED/BRS also indicated a requirement for roadway
workers to use shunts would necessitate additional training to ensure
using shunts did not interfere with grade crossing warning devices or
signal systems' operation.
In its comment, SEPTA recommended that the use of redundant
protections be left up to individual railroads because each railroad is
in the best position to evaluate the using such a requirement on its
property. NJT commented a requirement to use shunts could pose a
problem when work is performed within the limits of an interlocking
containing a moveable bridge, because if a roadway work group planned
to let a train(s) pass through the group's working limits, the shunts
would have to be removed and replaced for each train to allow the
signal system to clear to permit the bridge operator to open or close
the bridge. MTA commented shunting can result in unintended
consequences, including grade crossing malfunctions and signal system
disruptions. Citing a discussion in the preamble to a 2003 FRA rule (68
FR 44388, 44390) addressing roadway maintenance machines (RMMs),
individual commenters expressed support for a redundant protection
requirement. Noting that RMMs do not reliably shunt signal systems,
these commenters stated a uniform requirement for protection beyond
those provided by a dispatcher would improve safety.
Subsequent to publication of the NPRM and NTSB issuing Safety
Recommendations R-08-06 and R-13-17, on December 4, 2015, the President
signed into law the Fixing America's Surface Transportation Act, Public
Law 114-94, 129 Stat. 1686 (Dec. 4, 2015) (FAST Act). Section 11408 of
the FAST Act (Section 11408) addresses redundant signal protections and
requires FRA (as the Secretary of Transportation's delegate) to
promulgate a rule requiring railroads, whenever practicable and
consistent with other safety requirements, to implement redundant
signal protections for roadway work groups who depend on train
dispatchers to provide signal protection. Section 11408 also requires
FRA to consider exempting from any redundant signal protection
requirements each segment of track for which operations are governed by
a PTC system. Thus, to fulfill the mandates of Section 11408 and
address the NPRM's request for comment, FRA is adopting new paragraphs
(b) and (c) of this section. Paragraph (b) requires Class I and II
railroads and intercity passenger and commuter railroads utilizing
controlled track working limits in signalized territory to establish
on-track safety to adopt redundant signal protection procedures.
Paragraph (c) explains the procedures to request an exemption from the
redundant signal protections for segments of track governed by a
functioning PTC system.
Under the discretion Section 11408 affords, FRA is not specifically
requiring railroads to utilize shunting as a redundant signal
protection. Consistent with the views of several commenters, including
BMWED/BRS and AAR, FRA is concerned that in many instances shunting
presents new risks. As the NTSB stated in its report on the 2007 MBTA
accident at Woburn, shunting by maintenance-of-way crews is not a
common practice in the railroad industry. Track shunts have
traditionally been designed as a tool to test signal systems rather
than to provide protection to roadway workers. Shunting procedures can
be disruptive to signal systems and grade crossing warning systems
(improper use may violate 49 CFR parts 234 and 236) and,
[[Page 37860]]
in certain situations, employees applying shunts may be unnecessarily
exposed to electrical hazards and other environmental hazards along the
railroad right-of-way. Shunts are also not failsafe and do not
guarantee the signal system will protect a roadway work group. FRA is
concerned a mandatory shunting requirement nationwide could increase
certain railroad safety risks involving highway-rail grade crossing
warning devices and railroad signal systems. Further illustrating the
risks shunting can present, FRA is currently investigating a fatality
that occurred in February 2016 when a railroad employee was attempting
to install shunts to conduct an operational test and was struck by a
train.
In developing this final rule, FRA conducted a preliminary cost-
benefit analysis of a nationwide requirement to shunt, or to otherwise
adopt a redundant signal protection involving manipulating the signal
system or implementing a technology-based solution allowing roadway
work groups to prevent train incursions into established working
limits. FRA's analysis indicates the costs of a specific shunting or
similar requirement would significantly outweigh the potential benefits
and would cost the railroad industry well in excess of $100 million
annually.
For the above reasons, FRA concurs with SEPTA's comment that an
individual railroad is in the best position to determine what method of
providing redundant signal protections is appropriate for its own
operations. Thus, paragraph (b) requires Class I or II and passenger
railroads that establish on-track safety using controlled track working
limits (Sec. Sec. 214.321-214.323) in signalized territories to
evaluate their particular operations and identify what type of
redundant signal protection(s) is appropriate. This evaluation must be
completed by July 1, 2017. Varying signal systems, physical
characteristics, equipment, operating rules, and other factors make a
one-size fits all Federal mandate to shunt, or to adopt a specific form
of redundant signal protection, impractical and not the safest course
of action.
After railroads conduct the required evaluation, paragraph (b)
requires them to adopt (if such procedures are not currently in place)
an appropriate method of redundant signal protections in their on-track
safety program by January 1, 2018, and to comply with the adopted
procedure(s). FRA may object to a railroad's method of providing
redundant signal protections under the review procedures specified in
Sec. 214.307, or may take other appropriate enforcement action if a
railroad neglects to evaluate, adopt, and comply with appropriate
redundant protection procedures.
Paragraph (b)(1) explains that for purposes of this section, the
term ``redundant signal protections'' means risk mitigation measures or
safety redundancies adopted to ensure the proper establishment and
maintenance of signal protections for controlled track working limits
until such working limits are released by the roadway worker in charge.
In other words, ``redundant signal protections'' are intended to
protect against dispatchers or control operators unintentionally or
mistakenly allowing train or other on-track movements into working
limits before a roadway work group has released its authority (e.g., by
removing a signal blocking device). Redundant signal protections could
include various individual risk mitigation measures (or a combination
of measures) such as technology, training, supervision, or operating-
based procedures; or could include use of redundant signal protection
such as shunting, designed to prevent signal system-related incursions
into established controlled track working limits.
Permissible redundant signal protections under new paragraph (b) do
not have to require members of the roadway work group or the RWIC to
manipulate the signal system. Instead, redundant protections under this
section could involve redundant actions by the control operator or
train dispatcher operating the signal system. As noted above, NTSB
cited apparent errors by the train dispatchers involved in both the
2007 MBTA and 2013 Metro-North accidents as probable causes of the
accidents. Thus, FRA intends that appropriate redundant procedures
required of the dispatcher involving operation of the signal system
could also fulfill the requirement of new paragraph (b).
FRA notes a railroad is free to utilize shunting procedures to
comply with paragraph (b) if the railroad's evaluation identifies such
procedures as an appropriate way to provide redundant protections. FRA
believes many railroads have already implemented redundant protections
other than shunting procedures meeting the requirements of new
paragraph (b). For example, at least one Class I railroad utilizes a
technology-based procedure in its dispatching system that, if
implemented properly, could satisfy the requirements of paragraph (b).
FRA understands that dispatching system will not allow a dispatcher to
release controlled track working limits until the RWIC affirmatively
indicates via an electronic prompt that he or she is releasing working
limits authority. Other railroads use extended job briefing procedures
between the RWIC and dispatcher before a dispatcher may remove a
blocking device, and/or monitor dispatcher job performance with extra
operational tests and audits involving the removal of blocking devices.
As an example of an additional briefing procedure (via radio
communication) that would be an appropriate component of a railroad's
redundant signal protections, a railroad could adopt in its railroad
rules a prohibition on dispatchers releasing working limits and
removing blocking devices until the RWIC confirms all roadway workers
and equipment are clear of the track to be released. Similarly, a
railroad rule requiring an additional member of the roadway work group
to make the same confirmation to the dispatcher that the track to be
released is clear of roadway workers and equipment could also be one
component of a railroad's procedures adopted to comply with this new
redundant signal protections requirement.
As additional background, on November 25, 2014, FRA published
Safety Advisory 2014-02 (Advisory) regarding clear communication,
compliance with existing rules and procedures, and ensuring appropriate
safety redundancies are in place. 79 FR 70268; correction published at
79 FR 71152, Dec. 1, 2014. The Advisory recommended, in part, that
railroads monitor their employees for compliance with existing
applicable rules and procedures and examine their train dispatching
systems, rules, and procedures to ensure appropriate safety
redundancies are in place in the event of miscommunication or error.
Id. at 70270. FRA issued the Advisory in response to then-open NTSB
Safety Recommendation R-08-05, open Safety Recommendation R-08-06, and
other incidents where roadway workers were either outside of working
limits authority, or where working limits were no longer protected due
to dispatcher error. The Advisory discussed available technologies to
establish redundant signal protections for roadway work groups (not
involving shunting) that, depending on a railroad's specific operating
situation, could serve as appropriate forms of redundant protection
under new paragraph (b) of this section. Specifically, the Advisory
discussed the Enhanced Employee Protection System (EEPS). Id. at 70269.
FRA understands certain railroads are
[[Page 37861]]
deploying the EEPS system. And, the NTSB deemed Metro-North's response
to Safety Recommendation R-13-17 (redundant signal protections
recommendation to Metro-North specifically) as ``Closed-Acceptable
Action'' after Metro-North implemented EEPS on its system.\8\ FRA
encourages railroads to use new technologies such as EEPS as they
become available to provide redundant signal protections for roadway
work groups and to comply with new paragraph (b). As is FRA's practice,
it polled railroads to evaluate what, if any, actions railroads took to
address the recommendations in the Advisory. A review of responses
indicates many railroads' existing procedures already comply with new
paragraph (b), as redundancies currently exist within their train
dispatching procedures and procedures governing the release of
controlled track working limits in signalized territory. FRA is also
aware that in addition to these existing safety redundancies, many
railroads' roadway maintenance machines are being equipped with modern
shunting devices that more effectively shunt track while operating.
---------------------------------------------------------------------------
\8\ http://www.ntsb.gov/investigations/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-13-017.
---------------------------------------------------------------------------
Each railroad subject to paragraph (b) must conduct the required
evaluation of its on-track safety program by July 1, 2017. This
evaluation must be completed even if the railroad believes its existing
on-track safety program already provides appropriate redundancies. A
railroad's on-track safety program must specifically identify and
implement any redundancies by January 1, 2018. FRA believes this amount
of time is adequate for each railroad to conduct the evaluation
required by paragraph (b), formulate any necessary additions to the on-
track safety program, and train roadway workers, train dispatchers, and
control operators on any new redundant protections a railroad adopts.
Given operational and practicability considerations, new paragraph
(b), requiring redundant protections, applies only to Class I and II
railroads and intercity passenger and commuter railroads. By limiting
the applicability of this requirement to these larger railroads, FRA is
addressing nearly all of the controlled, signalized track in this
country, and not imposing an unnecessary burden on smaller entities
(Class III railroads). For purposes of this final rule, FRA considers
carriers providing ``intercity rail passenger transportation'' and
``commuter rail passenger transportation'' to be the same as those
defined at 49 U.S.C. 24102 (definitions of passenger railroads required
to install PTC systems under 49 U.S.C. 20157(a)).
FRA must evaluate the costs and benefits of all new regulatory
requirements and the burdens of those requirements on small businesses.
In short, the safety issues requiring the redundant signal protections
contemplated by paragraph (b) of this section are not typically present
on the smallest railroads. Generally, Class III railroads do not have
signalized controlled track where the redundant protections provision
of paragraph (b) would even apply and Class III railroad operations are
typically lower speed operations as compared to passenger and Class I
or II railroad operations. The accidents NTSB's Safety Recommendation
R-08-06 and R-13-07 address both occurred on commuter railroads and the
more recent notable accidents described in the Advisory all occurred on
either Class I or commuter railroads. Regarding the costs/burden of
this new requirement, as discussed above, FRA polled the Class I and II
railroads and certain passenger railroads to determine what actions
railroads have taken to implement the recommendations in the Advisory.
Most railroads that responded indicated they had redundant protections
in place prior to FRA issuing the Advisory through their existing
dispatching and on-track safety procedures. FRA does not believe there
will be prohibitive costs to implement this new requirement,
particularly with the flexibility that this final rule provides. A more
detailed discussion of the estimated costs and benefits of this new
provision is in the RIA accompanying this final rule.
New paragraph (c) of Sec. 214.319 implements the ``alternative
safety measures'' provision of Section 11408 paragraph (b). That
paragraph requires FRA to consider exempting from the redundant signal
protections requirements ``a segment of track for which operations are
governed by a [PTC] system certified under [49 U.S.C. 20157], or any
other safety technology or practice that would achieve an equivalent or
greater level of safety in providing additional signal protection.''
Paragraph (c) establishes how railroads may request FRA consideration
of such an exemption for a segment of track.
FRA's regulations governing the implementation of PTC systems are
in 49 CFR part 236, subpart I. Among other safety protections, part 236
requires PTC systems to prevent incursions into established roadway
worker working limits. 49 CFR 236.1005(a)(1)(iii). To comply with this
requirement, railroads generally have numerous system design options.
In FRA's 2010 initial final rule on PTC, however, FRA explained it
would scrutinize a railroad's PTC development and safety plans to
determine if the plans left any opportunity for a single point human
failure with regard to incursions into work zones (e.g., any
opportunity for a dispatcher to remove a blocking device in error as
occurred in the 2007 MBTA accident described above). 75 FR 2598, 2613.
As noted in that rule, FRA funded the development of a portable
terminal allowing an RWIC to control the entry of trains (and restrict
train speed) into established working limits, and prohibiting a
dispatcher from releasing working limits in the absence of verification
of a desired release from the RWIC. Id. In the 2010 final rule, FRA
strongly recommended railroads utilize terminals with such
functionality in implementing PTC. Id.
FRA believes a PTC system involving dual protections for roadway
work groups (such as described above) would improve roadway worker
safety and be consistent with allowing an appropriate PTC exemption
from the redundant protection requirements in paragraph (b) of this
section. However, without knowing the particular PTC system a railroad
is using at a given location, and to ensure this type of dual
protection system is successfully implemented, FRA cannot provide a
universal exemption without performing a detailed review of each PTC
system's working limits' incursion protections. Moreover, a railroad
may use a solution to the PTC standard that is not necessarily
redundant and would not fulfill the FAST Act's signal protections
mandate.
Thus, new paragraph (c) requires a railroad seeking to exempt a
segment of track governed by a PTC system from the redundant signal
protections requirement of paragraph (b) to submit a written request
for exemption to FRA's Associate Administrator for Railroad Safety and
Chief Safety Officer. The written request for approval must include all
relevant details regarding how the PTC system at a given location
prevents train incursions into established working limits, and discuss
how such a PTC system eliminates a single point human failure in the
enforcement of established working limits. Paragraph (c) specifies that
FRA will provide notice of approval or disapproval of a railroad's
request within 90 days, and will specify the basis for FRA's decision
if the request is disapproved. Of course, a railroad may choose to
implement appropriate
[[Page 37862]]
redundant signal protections under new Sec. 214.319(b) on segments of
track governed by an operative PTC system to provide an extra measure
of safety for roadway workers.
Both MBTA and Metro-North (the railroads that experienced the
accidents which led NTSB to issue Safety Recommendation R-08-06) are
required to install PTC. FRA already accounted for the cost of PTC
installation and the corresponding benefits of preventing other types
of unintended work zone incursions in the final PTC rule. 75 FR 2598;
see accompanying FRA RIA, Docket No. 2008-0132-0060; available online
at www.regulations.gov. The Advisory discussed above also reiterated
the probability of certain types of work zone incidents occurring as a
result of non-compliance with existing rules and regulations could be
significantly reduced by effective implementation of PTC systems. FRA
believes paragraph (b)'s new redundant protections provision, along
with implementation of PTC systems under part 236, will greatly reduce
the likelihood of future injuries and deaths resulting from incursions
into controlled track working limits in signalized territory. However,
FRA will continue to evaluate this issue, and, as new technologies
evolve, may revisit the topic of redundant signal protections.
Section 214.320 Roadway Maintenance Machine Movements Over Signalized
Non-Controlled Track
In the NPRM, FRA proposed to amend Sec. 214.301 to address a
potential safety issue resulting from roadway maintenance machine
movements under that section on non-controlled track. Section 214.301
allows train or on-track equipment movements on non-controlled track
without authorization from a train dispatcher or control operator.\9\
Typically, movements on non-controlled track are governed by railroad
operating rules limiting movements to speeds not exceeding restricted
speed. Section 214.7 defines restricted speed as a speed that will
permit a train or other equipment to stop within one-half the range of
vision of the person operating the train or other equipment, but not
exceeding 20 miles per hour, unless further restricted by the operating
rules of the railroad. The requirement to stop within one-half the
range of vision prevents collisions between any equipment operating on
the same non-controlled track. As such, under existing Sec.
214.301(c), operations at restricted speed allow roadway maintenance
machines to safely travel over non-controlled track without having to
establish working limits. However, some non-controlled track is
equipped with automatic block signal (ABS) systems. ABS systems are
designed to prevent collisions while allowing trains to operate at
speeds greater than restricted speed. As discussed in the NPRM, this
scenario is problematic for purposes of the movement of roadway
maintenance machines on non-controlled track under existing paragraph
(c) because roadway maintenance machines do not all shunt track
circuits. Absent the establishment of inaccessible track working limits
or other protections, nothing in existing part 214 prevents a train
operating on non-controlled ABS-signaled track at greater than
restricted speed from colliding with roadway maintenance machines
traveling on the same track that do not shunt the signal system (no
authority is needed to occupy non-controlled track and trains are not
required to stop within one-half their operator's range of vision).
---------------------------------------------------------------------------
\9\ Section 214.7 defines ``non-controlled track'' as track upon
which trains are permitted by railroad rule or special instruction
to move without receiving authorization from a train dispatcher or
control operator.
---------------------------------------------------------------------------
As noted in the NPRM, one Class I railroad had a significant
stretch of ABS non-controlled track and a train traveling at greater
than restricted speed struck a hi-rail vehicle.\10\ To address this
safety concern, in the NPRM, FRA proposed allowing roadway maintenance
machine movements on signalized non-controlled track under Sec.
214.301(c) (i.e., without establishing working limits) only if train
and locomotive speeds on the track are limited to speeds at or below
restricted speed.
---------------------------------------------------------------------------
\10\ Another Class I railroad with non-controlled, signaled
track, moves roadway maintenance machines over the track by creating
working limits via a dispatcher controlling the signals at either
end of the non-controlled limits to make the track inaccessible.
---------------------------------------------------------------------------
With the exception of block register territories (addressed in
proposed Sec. 214.327(a)(7) below), FRA believes railroad operations
over most non-controlled track are already limited to restricted speed.
For example, FRA understands yard track is typically non-controlled
track with operations limited to restricted speed. Thus, FRA did not
believe this proposed requirement would represent a cost burden to the
industry. To provide additional flexibility on this point, however, in
the NPRM FRA also proposed allowing the movement of roadway maintenance
machines over non-controlled track without establishing working limits
under operating rules other than restricted speed that are demonstrated
to provide an equivalent level of protection as restricted speed rules.
This proposal only referred to train and locomotive speeds on non-
controlled track, and not to the speeds at which roadway maintenance
machines are authorized to travel over non-controlled track. Existing
Sec. 214.341 already requires each railroad's on-track safety program
to address the spacing between machines and the maximum working and
travel speeds for machines depending on weather, visibility, and
stopping capabilities. Roadway maintenance machines typically have
stopping capabilities far in excess of that of trains. FRA intended
this proposal to address situations where trains and locomotives are
not required to stop within one-half the range of vision on non-
controlled track, and could collide with roadway maintenance machines
in travel mode under railroad operating rules that do not shunt signal
systems.
AAR commented on this proposal. AAR's comment suggested altering
FRA's proposed language by specifying that ``restricted speed'' would
permit train and equipment movements at up to 25 miles per hour (mph).
AAR also suggested specific rule text for alternate procedures if FRA
allowed speeds greater than restricted speed (versus the NPRM proposal
requiring FRA approve or disapprove of any alternative procedures
adopted by railroads). AAR's comment estimated a cost of $297 million
over a 20-year period for one railroad ``if no other relief were
granted.'' \11\
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\11\ FRA notes the calculation in AAR's comment incorrectly
indicates AAR's $297 million estimated cost relates to the NPRM's
proposed RSAC consensus definition of the term ``controlled point''
(see the title of Attachment B to AAR's comment). In reviewing AAR's
comment, however, it is clear the $297 million cost estimate
actually pertains to FRA's proposal to amend existing Sec.
214.301(c) to address a safety risk that occurs when roadway
maintenance machines travel over signalized non-controlled track.
---------------------------------------------------------------------------
In this final rule, FRA is adding new Sec. 214.320 addressing the
movement of roadway maintenance machines on non-controlled track
without establishing working limits. For purposes of this new section,
FRA defines restricted speed as movements prepared to stop within one-
half the range of vision but not exceeding 25 mph. The 25-mph maximum
speed is consistent with the meaning of restricted speed for purposes
of new Sec. 214.317(c) (discussed above) in which FRA adopted an RSAC-
consensus provision allowing on-track roadway maintenance machines to
conduct snow removal and weed spraying operations while traveling over
non-controlled track without establishing working
[[Page 37863]]
limits. The 25-mph maximum speed is also consistent with AAR's
recommended revisions and will minimize the potential costs, if any, of
this new paragraph. This new section requires roadway workers moving
roadway maintenance machines over non-controlled track equipped with an
ABS signal system, and over which trains are permitted to operate at
speeds over restricted speed (above 25 mph), to establish working
limits under Sec. 214.327. Because no control operator or dispatcher
controls movements over non-controlled track, and roadway maintenance
machines may not shunt the track while traveling over it, this new
section helps prevent roadway maintenance machines from colliding with
trains or other on track equipment where movements are made at speeds
in excess of restricted speed on non-controlled track.
To address this situation, AAR suggested specific rule text
requiring dispatchers or control operators to provide permission for a
train to move into or within non-controlled track. By definition,
however, FRA believes this would make the track ``controlled track.''
See Sec. 214.7 definition of ``controlled track''. If track is
``controlled track,'' then this provision as proposed and as adopted in
new Sec. 214.320 would not even apply. FRA also notes AAR's
recommended procedure is very similar to the procedures in new Sec.
214.327(a)(8) adopted in this final rule for establishing working
limits on non-controlled track. Thus, a railroad may choose to comply
with new Sec. 214.327(a)(8) if it does not want to comply with the
restricted speed provision of new Sec. 214.320 or an FRA-approved
alternate procedure under that section.
In this new section, FRA provides flexibility for railroads to
adopt alternate procedures to move roadway maintenance machines over
non-controlled track and to utilize those procedures instead of
establishing working limits or restricting on-track movements to
restricted speed. With the new methods of establishing working limits
on non-controlled track discussed below in Sec. 214.327, the
flexibility provided in this new Sec. 214.320, and the small number of
situations when Sec. 214.320 will apply, FRA believes railroads have
sufficient flexibility to conduct train movements at track speed over
signalized non-controlled track, while at the same time providing for
the safe movement of non-shunting roadway maintenance machines
traveling over the same non-controlled track.
AAR's comment estimated one railroad would incur costs of $297
million as a result of this provision. FRA disagrees with AAR's
calculation. According to AAR, this one railroad identified 13
locations covered by the NPRM proposal. The railroad then estimated 252
trains operating over those 13 locations daily, with an additional 126
``opposing trains delayed'' per day at these locations, for a total of
378 trains affected daily. AAR then estimated delay costs for each of
the 378 trains, for every single day of the year, for a 20-year period.
AAR stated the delay costs are due to trains being delayed as a result
of having to travel at restricted speed.
AAR's calculation is flawed. Nothing in the NPRM or this final rule
requires trains to travel at restricted speed at any of the identified
13 locations. This provision merely requires roadway workers, at the
periodic times when roadway maintenance machines travel over non-
controlled track, to establish working limits under Sec. 214.327. If a
railroad does not want to require its roadway workers to establish
working limits under these circumstances, new Sec. 214.320 allows
railroads to adopt alternative procedures providing an equivalent level
of protection to restricted speed protections. These alternative
procedures, once demonstrated to provide an equivalent level of safety
as restricted speed protections and approved by FRA, would permit
roadway maintenance machines to travel over these locations without
establishing working limits.
AAR's basis for its train delay estimate is also unfounded because
as mentioned above, neither the NPRM nor this final rule require any
trains to travel at restricted speed. This provision only requires
roadway workers to establish working limits if no alternative
procedures are adopted, which would only affect a fraction of train
traffic at these 13 locations. If for some reason a railroad chooses
not to adopt alternative procedures providing an equivalent level of
protection for roadway maintenance machines movements, FRA is unsure
any of these trains would be affected, because even under the existing
railroad rules, trains permitted to operate at greater than restricted
speed on non-controlled track already have to somehow yield to roadway
maintenance machine movements travelling over the same track to avoid
colliding with the machines. As explained in the accompanying RIA, FRA
does not believe new Sec. 214.320 will impose any significant costs.
FRA understands the one railroad estimating costs for this NPRM
provision revised its procedures to designate some track in question
``controlled track'' and is now using new procedures that may already
comply with this section. Thus, via existing industry practices, FRA
does not believe there are any large costs to implement this provision.
FRA believes this final rule will, at most, only impose de minimis
costs in light of the additional methods of establishing working limits
via Sec. 214.327 proposed in the NPRM that are akin to AAR's proposal
in its comment discussed above. Also, as explained above, FRA has
specified restricted speed is a maximum of 25 mph (stopping within one-
half the range of vision) for purposes of this provision, per the
request made in AAR's comment. This further alleviates any stated cost
concerns.
Section 214.321 Exclusive Track Occupancy
Existing Sec. 214.321 sets forth the requirements for establishing
working limits on controlled track through exclusive track occupancy
procedures. In the NPRM, FRA proposed several amendments to this
section, including both Working Group consensus items and non-consensus
items. FRA proposed to replace the words ``roadway worker'' in existing
paragraphs (a) and (b) with ``roadway worker in charge.'' As discussed
previously, this change is intended to clarify the existing variety of
generic references to roadway workers in charge and, in this section in
particular, to clarify that an authority for exclusive track occupancy
must be communicated to the ``roadway worker in charge,'' as opposed to
the ``roadway worker'' as currently stated in existing paragraph (b) of
this section (per existing Sec. 214.319, only a roadway worker in
charge can establish working limits).
Next, existing paragraph (b) of this section states a ``data
transmission'' may be used to transmit an exclusive track occupancy
authority to a roadway worker (i.e., a roadway worker in charge).
However, existing paragraph (b)(2) states only that the roadway worker
in charge must maintain possession of a ``written or printed
authority'' while the authority for working limits is in effect, and
does not currently account for authorities conveyed via data
transmission displayed on the screen of an electronic device. In the
NPRM, FRA proposed to amend paragraph (b)(2) to clarify that an
authority displayed on an electronic screen may be used in place of the
``written or printed'' authority existing Sec. 214.321(b)(2) requires.
FRA is adopting this amendment in this final
[[Page 37864]]
rule. FRA notes that electronic authorities must also comply with the
requirements of new Sec. 214.322, discussed in the Section-by-Section
analysis below.
The Working Group recommended consensus language requiring
exclusive track occupancy authorities to specify a unique roadway work
group number, an employee name, or other unique identifier. In the
NPRM, FRA proposed language consistent with this Working Group
recommendation as new paragraph (b)(4) to Sec. 214.321.
AAR and NJT submitted comments about this proposal. AAR supported
this proposal, but noted an inconsistency between the preamble
discussion and proposed rule text. AAR noted the preamble discussion
implied using an employee name to identify an exclusive track occupancy
authority when conveying working limits would not be permitted, but the
proposed rule text allowed using an employee name. FRA agrees and notes
that as proposed and as adopted in this final rule, paragraph (b)(4) of
this section permits using an employee's name to identify an exclusive
track occupancy authority.
NJT requested clarification of the language in paragraph (b)(4)
which required railroads to adopt procedures requiring precise
communication between trains and other on-track equipment and the RWIC
or lone worker controlling the working limits in accordance with Sec.
214.319. Specifically, NJT asked if the language was meant to require a
train to communicate with every piece of on-track equipment in a
roadway work group, in addition to communicating with the RWIC, when
seeking to pass through working limits. NJT indicated that if this
proposal required such communication, both locomotive engineers and
roadway work groups could become distracted due to excessive sounding
of the locomotive horn as the train passed through working limits. FRA
clarifies this language, as proposed in the NPRM and adopted in this
final rule, is intended to require a train or other on-track equipment
to communicate only with the RWIC (or lone worker) of the working
limits through which the train or on-track equipment seeks to enter or
travel through. FRA addresses NJT's comment on potential excessive
sounding of the locomotive horns in these circumstances in the Section-
by-Section analysis for Sec. 214.339 below.
Next, as proposed, FRA is amending existing paragraph (d) to refer
to the ``roadway worker in charge'' rather than to the ``roadway
worker'' having control over the working limits. As discussed elsewhere
in this preamble, FRA is making similar changes in multiple locations
in this final rule to replace the varying existing language generically
referring to the ``roadway worker in charge'' throughout subpart C.
Existing paragraph (d) of this section requires the movement of trains
and other on-track equipment within exclusive track occupancy working
limits be made only under the direction of the RWIC. As discussed in
the preamble to the NPRM, in 2005 FRA issued Technical Bulletin G-05-22
addressing paragraph (d) and recognizing there may be times, such as
during an emergency, when a RWIC cannot be contacted by a train or
other on-track equipment seeking to move into or through the RWIC's
working limits. In this final rule, FRA intends new paragraph (b)(4) to
work in conjunction with the requirements of existing paragraph (d).
New paragraph (b)(4) requires railroads to adopt procedures governing
communications between trains and RWICs. FRA expects railroads to adopt
procedures addressing what actions employees must take if there is an
emergency and a RWIC cannot be contacted by a train crew or the
operator of other on-track equipment. Upon the effective date of this
final rule, Technical Bulletin G-05-22 is supplanted.
In addition, as explained in the NPRM, the existing text of the
beginning of the second sentence of paragraph (d) currently reads that
``[s]uch movements shall be restricted speed.'' FRA proposed to amend
that text to instead state ``[s]such movements shall be made at
restricted speed.'' (Emphasis added.) For clarity and readability, FRA
is adopting this proposed revision.
Finally, in the NPRM, FRA proposed adding new paragraph (e) to this
section. This paragraph proposed minimum safety requirements when an
exclusive track occupancy authority is given to a RWIC (or lone worker)
before the roadway work group (or lone worker) is to occupy the limits,
or when train(s) may be occupying the same limits. As explained in the
NPRM, these authorities are referred to as ``occupancy behind,''
``conditional,'' or ``do not foul the limits ahead of'' authorities
\12\ and enable a train dispatcher or control operator to issue an
authority allowing a roadway work group (or lone worker) to occupy a
track, if such occupancy only occurs after certain trains or other on-
track equipment pass. At the time occupancy behind authorities are
issued to roadway work groups (or lone workers), trains may still be
ahead of the point the roadway worker(s) will be occupying, or in some
cases may be past the point to be occupied but still within the working
limits. Railroads have a history of using ``occupancy behind''
authorities and expressed to FRA using such authorities is crucial for
efficient railroad operations. The Working Group discussed potential
problems with miscommunications involving ``occupancy behind''
authorities, but did not reach consensus on recommended regulatory text
addressing the issue. However, FRA believes it is necessary to adopt
minimum safety requirements for using such authorities when RWICs (or
lone workers) are establishing exclusive track occupancy working
limits.
---------------------------------------------------------------------------
\12\ FRA notes 49 CFR 220.61 requires issuing ``mandatory
directives'' via radio transmission for both trains and on-track
equipment. Exclusive track occupancy authority to establish working
limits granted by a train dispatcher or control operator to a RWIC
are sometimes also considered ``mandatory directives'' under that
section. The existing requirements in Sec. 214.321 are in addition
to the requirements of existing Sec. 220.61.
---------------------------------------------------------------------------
As proposed, paragraph (e)(1) requires the RWIC or lone worker to
confirm affected train(s) are past the point the roadway worker(s)
intend to occupy or foul before working limits may be established under
paragraph (e). Paragraph (e)(2), as proposed, requires a railroad's
operating rules to include procedures prohibiting affected train(s)
from making reverse moves into the limits roadway worker(s) are
authorized to foul or occupy when a RWIC or lone worker confirms the
passage of affected train(s) by visually identifying the train(s).
Paragraph (e)(3), as proposed, requires the RWIC or lone worker, after
confirming the affected train(s) had passed the point the roadway
worker(s) intended to occupy or foul, to record ``on the authority''
the time the train(s) passed and locomotive number(s) of the affected
train(s). As proposed, paragraph (e)(4) prohibits roadway workers
located between the rear end of the last affected train and the RWIC,
or who are still located ahead of any affected train, from fouling or
occupying the track until the RWIC confirms and records affected
train(s) passed under paragraphs (e)(1) and (3) and provides the
roadway worker(s) permission to occupy or foul the track.
NTSB, SEPTA, BMWED/BRS, and AAR commented on this proposal. After
careful consideration of each of these comments, in this final rule,
FRA is adopting paragraphs (e)(1) through (3) as proposed and paragraph
(e)(4) with slight modifications from that proposed. FRA believes
adoption of this paragraph's minimum standards for establishing
``occupancy behind'' working limit authorities codifies best practices
and will help ensure safety. A detailed discussion of FRA's responses
[[Page 37865]]
to comments received on to new paragraph (e) is below.
NTSB indicated its awareness of the perceived benefits of
``occupancy behind'' track authorities, but cited four train accidents
occurring between 1996 and 2004 involving the use of these types of
authorities. NTSB urged FRA not to adopt the proposed changes in a
final rule, indicating such changes would diminish safety. FRA
appreciates and understands NTSB's point of view on this issue, but FRA
believes adopting minimum safety standards for ``occupancy behind''
authorities will improve safety. The use of conditional authorities,
such as those contemplated by paragraph (e), currently occurs in the
railroad industry. The existing on-track safety regulations of subpart
C do not address this practice. By adopting paragraph (e) in this final
rule, FRA is establishing minimum Federal safety requirements for this
practice and believes these standards will further improve track-
related safety issues, as roadway workers and dispatchers will continue
to be able to maximize the time available for roadway workers to
perform quality track inspections as required by 49 CFR part 213. If
FRA prohibited using occupancy behind authorities, the time available
for roadway workers to conduct track inspections in busy rail corridors
would likely decrease as authorities for roadway workers to occupy or
foul track could not be issued until after all trains passed the point
the roadway worker(s) need to occupy or foul track. FRA believes more
frequent and quality track inspections will improve railroad safety, as
track-caused derailments are one of the leading causes of railroad
accidents.
SEPTA requested clarification of the requirements in proposed
paragraphs (e)(3) and (4). SEPTA asked how, under proposed paragraph
(e)(3), a RWIC could confirm in writing the train passed if the roadway
worker received the authority through a data transmission. SEPTA also
asked if under proposed paragraph (e)(4) every roadway worker between
the RWIC and the affected train(s) would have to be qualified to the
level of a RWIC, or whether each additional work group would be
required to have an employee qualified as a RWIC.
In response, FRA clarifies that if an authority is conveyed
electronically, a RWIC or lone worker may, under paragraph (e)(3),
record the time of passage and engine numbers of trains passing the
point to be occupied or fouled in one of two ways. First, a railroad
could program its system to issue electronic authorities so roadway
workers can enter the required information electronically onto the
authority and maintain access to that information while the authority
is in effect. Second, as discussed in the NPRM, an RWIC could write the
time of passage and engine numbers on a paper and maintain that paper
while the authority is in effect. This written information is
considered part of the authority, and must be kept by the RWIC while
the authority is in effect.
In response to SEPTA's request for clarification of paragraph
(e)(4), in this final rule, FRA is amending the text to clarify the
paragraph refers to separate roadway work groups. FRA intended this
provision to allow separate roadway work groups (or lone workers)
located between the rear end of affected trains and the RWIC to have a
roadway worker qualified under Sec. 214.353 communicate with the RWIC
holding the authority.
BMWED/BRS opposed amending the regulations to accommodate issuing
``conditional authorities'' to establish working limits. Noting the
Working Group did not reach consensus on this point, the labor
organizations stated working limits should only be in effect after all
trains and on-track equipment have reported clear of the working
limits. BMWED/BRS indicated that if conditional authorities such as
those proposed are permitted, all trains and on-track equipment
traveling within working limits must be required to operate at
restricted speed.
In response, FRA notes that in many instances, particularly in
high-volume corridors, the potential economic costs of requiring all
trains to travel at restricted speed within authority limits in
occupancy behind situations would likely outweigh the economic benefits
of such a requirement. FRA also reiterates that in the absence of FRA
action in this final rule, occupancy behind authorities would continue
to be used regularly by the railroad industry without this final rule's
minimum safety requirements addressing such use. Thus, FRA believes
this provision improves safety.
AAR's comment stated paragraph (e)(3)'s requirement that the RWIC
record the time of passage and engine numbers of a train after the
train has passed is problematic and unnecessary. AAR asked where a RWIC
should record such information if an electronic authority is used. AAR
also stated it is unaware of an instance where the information
regarding time of passage and train engine numbers would have been
useful.
AAR's comment also stated that paragraph (e)(4)'s requirement
regarding additional RWICs could be costly, as a RWIC might have
roadway workers acting under his or her working limits authority
located miles apart. AAR asserted this requirement could necessitate
additional communication within a roadway group, and could lead to
confusion in large work gangs accustomed to a single source for
confirmation regarding whether it is safe to foul a track. Finally,
AAR's comment questioned what constitutes a separate roadway work group
under paragraph (e)(4), stating the reasonable approach is that when
all the workers are engaged in a common task only one employee
qualified as a RWIC should be required.
In response to AAR's first question regarding where a roadway
worker who is utilizing an electronic authority should copy the time of
passage and engine numbers of a passing train, FRA refers to the
response to SEPTA's similar inquiry above, and to the NPRM's discussion
regarding a separate written document. 77 FR 50344. The RWIC can copy
that information in writing so it can be compared to the information in
the electronic authority. The written information must be kept by the
RWIC while the authority is in effect under Sec. 214.321(b). 77 FR
50344. FRA believes roadway workers must copy this information, because
if a dispatcher gives a roadway worker authority behind or after the
passage of a train(s), the engine numbers are a simple check to ensure
the train that has passed the RWIC's location is indeed the train the
dispatcher had intended would pass before roadway workers fouled track.
FRA staff is aware of situations when there was confusion over whether
the roadway workers could occupy a track after a particular train
passed. This provision helps eliminate any confusion, and, in some
instances, will save time by alleviating the need for additional
dispatcher communication to verify the appropriate trains have passed
the point to be occupied.
Regarding paragraph (e)(4)'s requirement addressing an additional
RWIC for roadway work groups that might piggyback within the working
limits of the RWIC named on the authority, FRA also refers to the
response to SEPTA's comment above. Consistent with FRA's intent in the
NPRM, FRA is clarifying in this final rule that this requirement only
applies to separate roadway work groups at a location away from the
RWIC listed on the authority. Regarding AAR's inquiry about what
constitutes a separate roadway work group, FRA agrees a roadway work
group is composed of roadway workers ``. . . organized to work together
on a common task'' as stated in the definition of the term ``roadway
work group'' at existing Sec. 214.7. In this regard, roadway workers
[[Page 37866]]
who are part of the same group will continue to follow the instructions
of the RWIC when fouling track, as is required in all instances under
the existing regulation. So, a large roadway work group that might be
spread out over some distance will not be permitted to foul the track
in question until the RWIC indicates the members of the roadway work
group may do so (and after the passage of the trains listed on the
authority).
In this final rule, FRA retains the NPRM's text addressing a RWIC
of a roadway work group away from the location of the initial group. If
a second roadway work group wishes to ``piggyback'' on an occupancy
behind authority, the RWIC of the second group must also have a copy of
the authority and confirm the affected trains have passed the group's
location before the group occupies the track. As an example, if the
RWIC of a tie gang establishes working limits authority under paragraph
(e), and a bridge gang two miles away wishes to piggyback on that
authority, the bridge gang must have its own RWIC communicate with the
tie gang's RWIC before permitting the bridge gang to foul the track. In
many regards, this is the same way roadway work groups are used under
another RWIC's authority under existing part 214. FRA notes this
procedure is not limited to two roadway work groups, but multiple
groups may be involved.
FRA believes that from a safety perspective these requirements are
necessary. Where an additional roadway work group is located a distance
from the RWIC listed on the authority, the only safe way for that
additional roadway work group to ensure affected trains have passed
their location is to make the required confirmation of train engine
numbers. This is necessary because a second roadway work group may have
arrived at location either before or after an affected train listed on
the authority has already passed that location. Meaning, unless
confirmation is made by each roadway work group, the group may not know
how many affected trains have already passed (or if a train exited the
track to be occupied, or stopped, before reaching a roadway work
group's location). If the RWIC listed on an authority is not physically
present at a separate roadway work group's location, which may be some
distance away, he or she cannot know whether a train has actually
passed that other location to be able to tell an additional roadway
work group it is safe to foul the track yet. The RWIC at the particular
location where the piggybacking group wishes to foul track must make
that determination. This procedure is necessary to avoid
miscommunications between separate roadway work groups on an occupancy
behind authority, and addresses safety concerns regarding occupancy
behind authorities discussed by the Working Group. Such qualification
is necessary to ensure the RWIC of a separate work group utilizing
another group's authority has been trained on, and can apply, the rules
regarding occupancy behind procedures. It also ensures a RWIC is
present to recognize whether appropriate on-track safety measures are
in place and to address any potential good faith challenges.
As mentioned above, FRA is slightly amending the rule text of
(e)(4) based on further evaluation of this issue, to more clearly
account for situations where additional roadway work groups are located
at the same place as the RWIC listed on the authority. In that
instance, the RWIC who obtained authority may confirm the passage of
affected train(s), and may communicate to an additional roadway work
group it is safe to foul the track (without need for an additional RWIC
to have a copy of the authority). If the RWIC can see the affected
trains are past a separate roadway work group's location, the RWIC of
the authority can verbally inform the other roadway work group it is
permissible to foul the track without need for that second group to
have a copy of the authority per paragraphs (e)(4)(i) and (ii).
With regard to the requirements and application of new paragraph
(e) as a whole, paragraph (e)(1) states an authority is only in effect
after the RWIC or lone worker confirms affected train(s) have passed
the point to be occupied or fouled by the roadway work group or lone
worker. This is necessary because in many instances the train(s) listed
in the roadway worker in charge's authority may still be ahead of
(i.e., may have not yet reached and traveled past) the point to be
occupied or fouled. The text permits such confirmation to be made in
three ways: (1) By visually identifying the affected train(s); (2) by
direct radio contact with a crew member of the affected train(s); or
(3) by receiving information about the affected train(s) from the
dispatcher or control operator.
Paragraph (e)(2) states that when such confirmation is made by the
RWIC visually identifying the affected train(s), the railroad's
operating rules must include procedures to prohibit such trains from
making a reverse movement into the limits being fouled or occupied
(this provision, in addition to the requirements of proposed Sec.
214.321(e)(4) below, protects roadway worker(s) located ahead of the
point to be occupied who intend to ``piggyback'' on a RWIC's exclusive
track occupancy authority). FRA believes this is necessary, as this
confirmation method does not require the RWIC to actually talk to the
crew of the affected train(s) (or for the train dispatcher to talk with
the crew or verify that that train is beyond the point to be occupied),
such that the crew may not be cognizant of the working limits or point
to be occupied. In this final rule, FRA has also added the word
``within'' to this provision, as whether a reverse movement is made
into, or within the working limits, by a train after having passed the
point to be occupied presents the same risk to a roadway work group
that will be fouling the track.
Paragraph (e)(3) requires that after confirmation of the passage of
affected train(s) is made, the RWIC must record on the authority
document (or display) both the time of passage and the engine
(locomotive) numbers of the affected train(s). If passage confirmation
is made via radio communication with the train crew, the time of that
communication along with the engine numbers must be recorded on the
authority. When confirmation of the passage of the affected train(s) is
made via the train dispatcher or control operator, the time of such
confirmation and the engine numbers must be recorded on the authority.
If the time and engine numbers are not recorded on the authority
itself, as explained above (and in the NPRM), FRA considers a separate
written document used to record information regarding passing trains to
be a component of the authority. That separate document must be
maintained with the authority while it is in effect.
Paragraph (e)(4) states separate roadway work groups who are
located away from the RWIC listed on the authority may only foul track
under an occupancy behind authority after receiving permission to do so
from the RWIC who received the authority and after the RWIC fulfilled
the provisions of proposed Sec. 214.321(e)(1) and (3). As explained
above in response to the AAR and SEPTA comments, FRA has amended the
NPRM's reference to ``roadway workers'' in paragraph (e)(4) to instead
refer to a ``separate roadway work group.'' FRA's intent was that each
additional roadway work group piggybacking on the initial roadway work
group's authority would also have its own roadway worker qualified
under Sec. 214.353. For the reasons explained above, the RWIC of
another roadway work group piggybacking on an occupancy behind
authority is also
[[Page 37867]]
required to have a copy of such authority and fulfill the requirements
of Sec. 214.321(e)(1) and (3) before working limits may be occupied or
fouled at a particular location. The authority information may be
verbally transmitted by the RWIC to the additional roadway work group
utilizing the working limits.
FRA removed what was proposed paragraph (e)(5) in the NPRM from
this final rule. Proposed (e)(5) would have reiterated that lone
workers who wished to utilize this occupancy behind procedure must
comply with the same procedures a RWIC of a roadway work group is
required to adhere to under paragraph (e). This paragraph was
unnecessary, however, as paragraph (e)(1) and the amended definition of
``roadway worker in charge'' already account for lone workers utilizing
the procedures under this paragraph.
New paragraph (e)(5) (formerly proposed paragraph (e)(6))
establishes any train movements within working limits after passage of
the affected trains listed on the authority will continue to be
governed by existing Sec. 214.321(d), or under the direction of the
RWIC.
Section 214.322 Exclusive Track Occupancy, Electronic Display
Existing Sec. 214.321(b) permits an exclusive track occupancy
authority to be issued via data transmission from the train dispatcher
or control operator to the RWIC. Certain railroads utilize electronic
devices to display such authorities received via data transmission. FRA
anticipates that using such electronic devices to display working
limits authorities will continue to grow, especially with the
implementation of PTC systems. As such, the Working Group considered
this topic, and contemplated minimum requirements for using such
electronic displays. The Working Group agreed in principle to basic
concepts for using electronic display for working limits. However, the
Working Group did not agree to consensus language.
Paragraph (a), as proposed in the NPRM, contained the items agreed
to in principle by the Working Group, and established that an
electronically displayed authority must be readily viewable by the RWIC
while such authority is in effect. Proposed paragraph (a)(1) stated
that when a device malfunctions or fails, or cannot otherwise display
an authority in effect (e.g., batteries powering the electronic device
displaying the authority lose charge), the RWIC must instruct all
roadway workers to stop and occupy a place of safety until a written or
printed copy of the authority can be obtained, or another form of on-
track safety can be established. FRA requested comment regarding
whether to first allow the RWIC the opportunity to obtain a written
copy of an authority before requiring the members of the roadway work
group to stop work and occupy a place of safety (and if a written
authority could not immediately be obtained, then requiring the work
group to occupy a place of safety).
Paragraph (a)(2), as proposed in the NPRM, stated the RWIC must
conduct an on-track job safety briefing to determine the safe course of
action with the roadway work group. Proposed paragraph (a)(2) attempted
to provide flexibility in situations where an electronic display fails
and the RWIC cannot communicate with the train dispatcher via radio,
which might occur in a deep rock cut or a tunnel, and a roadway work
group may have to move within established working limits to a location
where they can occupy a place of safety and/or re-establish
communication with the dispatcher.
FRA received comments from BMWED/BRS, AAR, and SEPTA about proposed
paragraph (a). The BMWED/BRS comment supported proposed paragraph (a)'s
requirement that, in the event of an electronic display failure,
roadway workers must stop and occupy a place of safety until a copy of
the authority could be obtained or another form of on-track safety
could be established. The comment indicated there is no reason to delay
the order to occupy a place of safety while the RWIC tries to get
access to the authority or establish another form of on-track safety.
AAR's comment stated a RWIC should have an opportunity to obtain a
written copy of the authority expeditiously before work is required to
stop, indicating there is no reason to stop work immediately when a
momentary lapse in the visibility of the authority occurs. AAR stated
the display failure will have no effect if a written copy of the
authority is obtained without delay. AAR also stated that a roadway
worker having a written copy of the authority at all times (either
paper or on an electronic display) is inconsistent with authorization
of verbal protection (as was proposed in the NPRM but not adopted in
this final rule). AAR also questioned what would constitute a place of
safety for a worker on a bridge or in a tunnel if the electronic
display failed.
The SEPTA comment disagreed with the proposed requirement that
roadway workers stop work and occupy a place of safety until a written
copy of the authority is obtained or another form of on-track safety is
obtained. SEPTA stated that as long as the working limits are not
released, the roadway workers would be no less safe than they were
before the display failure. Rather than require a work stoppage, SEPTA
suggested the RWIC should have an opportunity to obtain an alternate
copy of the authority, stating that there is no logical reason to stop
work unless the actual work conditions change.
After evaluating this issue and the comments received, FRA decided
to consolidate proposed (a)(1) and (2) into a single paragraph (b). FRA
decided to allow the RWIC an opportunity to obtain a written or printed
copy of an authority without delay before requiring roadway workers to
occupy a place of safety. FRA believes that as long as an authority is
still in effect, and the only issue is the display failure, in many
instances the track on which working limits have been established is
the safest place for a roadway worker to occupy. However, FRA is
specifying that any moving roadway maintenance machines must stop if an
electronic display fails, so if there is a question about the limits of
an authority, there is no risk of roadway workers traveling outside of
protected working limits on a moving machine. If a new authority cannot
be obtained or another form of on-track safety cannot be established,
work must stop and roadway workers are required to occupy a place of
safety. A job safety briefing must then be conducted with the roadway
work group to determine the safe course of action. FRA believes this is
the appropriate course from a safety perspective when a new authority
cannot be obtained, because if questions arise regarding the on-track
safety being provided, the working limits authority cannot be
referenced or amended if necessary. Of course, a method to prevent this
situation from even occurring is for a RWIC to also print a copy of the
authority after it is issued via data transmission. If a display fails,
a copy of the authority is then already available for reference.
FRA added the words ``without delay'' to describe how the RWIC must
obtain another version of the authority if an electronic display fails.
This means the RWIC must contact the dispatcher or obtain new authority
directly upon noticing a display failure. If, for example, the
dispatcher responds by instructing the RWIC to call back at a later
time to obtain a new authority, then the roadway work group would have
to stop work and occupy a place of safety until an authority can be
obtained. If a dispatcher or control operator does not respond to
contact attempts by the RWIC, the work group must stop work and occupy
a place of
[[Page 37868]]
safety. In response to AAR's comment about a tunnel or bridge and what
constitutes a place of safety, FRA understands the track on which
working limits have been established may be the best, or only, place of
safety in such instances. As such, FRA would not take exception to such
situations, and expects the on-track job safety briefing following a
display failure to be used to determine the safest course of action for
the group, even if the safest course of action is to continue to occupy
the track on which working limits had been established. In this final
rule, FRA also added reference to hi-rail vehicles in paragraph (b), as
FRA recognizes a hi-rail vehicle on track is not always considered an
``on-track roadway maintenance machine'' as defined by Sec. 214.7 if
used to inspect track. Thus, this provision also applies to an
electronic authority being used by a roadway worker(s) occupying track
in a hi-rail vehicle.
Paragraphs (c)-(h) (proposed as paragraphs (b)-(g)) address
technical attributes of the electronic display of exclusive track
occupancy authorities, and are safety and security-related. FRA is
largely adopting the rule text proposed as discussed below. FRA
received comment on these proposals from the BMWED/BRS. Their comments
supported these security provisions, but suggested four changes. The
comment stated FRA should add a provision on display survivability,
addressing the ability of an electronic device to stand up to
environmental conditions such as heat and cold. The comment also
suggested a provision regarding readability by a roadway worker,
indicating the display must be legible in all environmental conditions
and appearing in text, with supplemental graphic displays allowed. The
comment next suggested that authorities transmitted electronically must
be retained for one year (versus the proposed 72 hours) and the
authority must be available for review, recall, and printing by the
requesting employee during that time. Last, the comment suggested
roadway workers should have the absolute right to speak to the
dispatcher via voice communications rather than via data transmission
to ensure proper on-track safety is in place.
FRA is declining to adopt these suggested revisions. First, FRA
believes the environmental requirements are unnecessary, as FRA has
established requirements to provide for roadway worker safety if a
display fails. Also, because of continuous improvement in technology,
such technical standards for a display device would quickly become
outdated, and also might be so costly they could not be justified
economically. Nevertheless, FRA expects railroads to take into account
the environment such devices will be subject to during use. As noted in
the NPRM, railroads are always allowed to implement more restrictive
security requirements provided the requirements do not conflict with
Federal regulation.
FRA also believes that regulation text requiring electronic
authorities to be in text and the RWIC to have an absolute right to
talk to a dispatcher via voice communication instead of via data
transmission are unnecessary. Under existing Sec. 214.313(c), roadway
workers are already required to ascertain that on-track safety is being
provided before fouling a track. If there is any question regarding on-
track safety, FRA urges roadway workers to clarify the extent of the
working limits (or any other questions that may arise), and notes Sec.
214.313(d) already provides for a good faith challenge procedure. If
roadway workers are required to foul track while uncertain of the
extent of the on-track safety being provided, FRA urges roadway workers
to raise a good faith challenge and to not foul track until those
questions have been resolved. Further, the required on-track job safety
briefing required to take place before track is fouled is also a tool
to resolve any potential questions regarding the on-track safety being
provided.
With regard to the BMWED/BRS suggestion that all authorities be
retained for one-year, FRA believes such a requirement is unnecessary.
First, FRA is already specifying that for electronic devices used to
obtain an authority where an accident is then involved, such authority
data must be kept for one year, and for 72 hours in the absence of an
accident. FRA notes there are no similar requirements for written
authorities under the sections in part 214 addressing working limits.
For cost reasons, FRA chose not to adopt any similar requirements for
written authorities (though 49 CFR part 228's requirements apply to
certain dispatcher-created records), and also because traditionally FRA
has not had issue obtaining copies of written authorities after an
accident, and can review dispatcher records and radio recordings. As
such, FRA is not certain what utility a one-year electronic retention
requirement in the absence of an accident would provide, and is not
reasonably certain any utility would outweigh potential costs.
With regard to application of new Sec. 214.322, paragraphs (c) and
(d) require identification and authentication of users. A user is the
RWIC and train dispatcher or control operator, as they are most often
involved in an exclusive track occupancy authority transaction. A user
could also be a process or a system that accesses or attempts to access
an electronic display system to perform tasks or process an authority.
Identification is the process through which a user presents an
identifier uniquely associated with that user to gain access to an
electronic authority display system.
Authentication is the process through which an individual user's
identity is validated. Most authentication techniques follow the
``challenge-response'' model by prompting the user (the challenge) to
provide some private information (the response). Basic authentication
factors for individual users could involve information an individual
knows, something an individual possesses, or something an individual is
(e.g., personal characteristics or ``biometrics'' such as a fingerprint
or voice pattern).
Paragraph (d) requires any authentication scheme utilized to ensure
the confidentiality of authentication data and protect that data from
unauthorized access. Such schemes must utilize algorithms approved by
the Federal government's National Institute of Standards and Technology
(NIST), or any similarly recognized standards body.\13\ This
requirement parallels a similar requirement for PTC systems at 49 CFR
236.1033(b),\14\ and is intended to help prevent deliberate
``spoofing'' or ``man in the middle'' attacks on exclusive track
occupancy authority information communicated and displayed via
electronic device.
---------------------------------------------------------------------------
\13\ NIST is responsible for defining cryptographic algorithms
for non-Department of Defense entities.
\14\ 75 FR 2598, 2676, Jan. 15, 2010.
---------------------------------------------------------------------------
Paragraph (e) addresses transmission, reception, processing, and
storing exclusive track occupancy authority data, and is proposed to
help ensure the integrity of such data. Data integrity is the property
of data not being altered since the time data was created, transmitted,
or stored, and generally refers to the validity of the data. This
paragraph establishes that new electronic authority display systems
placed into service on or after July 1, 2017 are required to utilize
message authentication codes (MACs) to ensure data integrity. Similar
to the requirements of paragraph (d), MACs would have to utilize
algorithms approved by NIST or a similarly recognized standards body.
Unlike Cyclical Redundancy Codes (CRCs), MACs protect against malicious
interference. Paragraph (e) permits the
[[Page 37869]]
use of systems implemented prior to July 1, 2017 to utilize CRCs, but
requires that the collision rate for the CRCs' checks utilized be less
than or equal to 1 in 2\32\ (i.e. two to the 32nd power). This
collision rate helps provide reasonable protection against accidental
or non-malicious errors on channels subject to transmission errors, and
is based on a Department of Defense standard. Existing systems using
CRCs that do not meet this minimum standard must be retired and
replaced with systems that utilize MACs not later than July 1, 2018.
Paragraph (e)(2) requires that MACs' or CRCs' checks only be used to
verify the accuracy of a message, and that an authority must fail if
the checks do not match.
Paragraph (f) requires the actual electronic device used to display
an authority issued via data transmission to retain any authorities
issued for a minimum of 72-hours after expiration of such authority.
This minimum requirement is primarily for investigation purposes, as it
gives railroad safety investigating bodies such as FRA or the NTSB an
opportunity to study authority data in non-reportable accident/incident
situations, and to compare it to a dispatcher or control operator's
corresponding electronic authority transmission records. This
requirement will also be helpful for compliance audits.
Paragraph (g) is the same as 49 CFR 229.135(e) of FRA's Railroad
Locomotive Safety Standards. Section 229.135(e) governs preserving data
from locomotive event recorders or other locomotive mounted recorders
if there is an accident. Paragraph (g) requires railroads to preserve
data from any electronic device used to display an authority for one
year from the date of a reportable accident/incident under 49 CFR part
225, unless FRA or the NTSB notifies the railroad in writing the data
is desired for analysis.
Paragraph (h) requires new electronic display systems implemented
on or after July 1, 2017 to provide Level 3 assurance as defined by the
August 2013, version of NIST Special Publication 800-63-2, ``Electronic
Authentication Guideline.'' NIST is the Federal agency that works with
industry to develop and apply technology, measurements, and standards.
FRA is incorporating by reference this NIST Special Publication into
this paragraph. NIST Special Publication 800-63-2 provides technical
guidelines for widely used methods of electronic authentication, and is
reasonably available to all interested parties online at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-2.pdf, or
by contacting NIST via the contact information in new Sec. 214.322(h).
Additionally, FRA will maintain a copy available for review.
The incorporation of NIST Special Publication 800-63-2 is a change
from the NPRM proposal that referenced the earlier version of the same
standard, which was issued in December 2011 (NIST Special Publication
800-63-1). The updated standard incorporated by reference in this
paragraph is a limited update, and substantive changes are made only in
section 5 of the document. FRA understands the changes in the more
updated version are related to improvement in issuing credentials.\15\
---------------------------------------------------------------------------
\15\ http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-2.pdf.
---------------------------------------------------------------------------
Systems implemented prior to July 1, 2017 must provide at least
Level 2 assurance as described in NIST Special Publication 800-63-2,
and systems that do not provide Level 2 assurance or higher must be
retired or updated to provide such assurance no later than July 1,
2018. These assurance levels govern the elements of the authentication
process. Level 2 assurance requires some identity proofing and
passwords are accepted (but not PINS). Level 3 assurance requires more
stringent identity proofing and multi-factor authentication, typically
a password or a biometric factor used in combination with a software or
hardware token.
In the NPRM, FRA requested comment on whether existing electronic
display systems in use already comply with the above requirements, to
include potential cost on information. FRA received no comments in
response to that request.
Section 214.323 Foul Time
Existing Sec. 214.323 sets forth the requirements for establishing
working limits on controlled track using foul time. In the NPRM, FRA
proposed several amendments to this section. First, FRA proposed to add
the words ``or other on track equipment'' to existing paragraph (a),
which currently provides that foul time may be provided only after the
relevant train dispatcher or control operator has withheld authority
``of all trains'' to move into or within the working limits. This
change is only for consistency within this existing section, as
existing paragraph (c) prohibits the movement of both trains and on-
track equipment from moving into working limits while foul time is in
effect. This revision also acknowledges that the incursion of on-track
equipment into or within working limits while foul time is in effect
presents the same safety risk to roadway workers as train movements
into or within working limits.
Consistent with the revisions made throughout this final rule, FRA
also proposed to amend the reference to ``roadway worker'' in existing
paragraph (b) to ``roadway worker in charge.''
In the NPRM, FRA also proposed to add a new paragraph (d) to this
section. As proposed, paragraph (d) would prohibit the RWIC from
permitting the movement of trains or other on-track equipment into or
within working limits protected by foul time.
BMWED/BRS recommended paragraph (d) include lone workers in
addition to RWICs, as lone workers are also permitted to establish foul
time working limits. FRA concurs, and, as discussed above, the
definition of ``roadway worker in charge'' in this final rule includes
lone workers who establish working limits to provide on-track safety
for themselves.
Although not proposed in the NPRM, in this final rule FRA is also
adding ``or track identifier'' to paragraph (b) of this section.
Existing paragraph (b) requires an RWIC receiving foul time verbally to
``repeat the track number, track limits and time limits'' of the foul
time to the issuing employee for confirmation before the foul time is
effective. FRA believes railroads and roadway workers understand
existing subpart C allows them to use ``a track identifier'' (in
addition to the track number and track limits) to positively identify
the track(s) where working limits are being established. As discussed
in the NPRM, AAR's post-RSAC comments to proposed Sec. 214.324
addressing ``verbal protection'' also suggested adding ``track
identifier,'' and proposed Sec. 214.324 shared much of the same
language as existing Sec. 214.323. FRA is adding ``track identifier''
in this section. Other than BMWED/BRS's comment, FRA received no other
comments on its proposed revisions to Sec. 214.343, so this final rule
adopts the revisions to this section.
Section 214.325 Train Coordination
In the NPRM, FRA proposed a minor amendment to existing Sec.
214.325. Section 214.325 governs the establishment of working limits on
controlled track by train coordination (direct coordination between the
RWIC or lone worker and a train crew). Unlike the other controlled
track working limits provisions (Sec. Sec. 214.321 and 214.323), the
existing text of Sec. 214.325 does not state it applies to working
limits established on controlled track. Therefore, FRA proposed to add
``on controlled tracks'' to the first sentence of the introductory
paragraph in Sec. 214.325. Consistent with
[[Page 37870]]
revisions made elsewhere in this final rule, FRA also proposed to add
the words ``in charge'' after ``roadway worker'' in the first sentence
of the introductory paragraph. FRA received no comments on this NPRM
proposal, other than the BMWED/BRS comment recommending the definition
of ``roadway worker in charge'' include ``lone workers.'' For the
reasons explained above and in the NPRM, in this final rule, FRA is
adopting the proposed amendments to Sec. 214.325.
Section 214.327 Inaccessible Track
Section 214.327 governs the establishment of working limits on non-
controlled track.\16\ To establish working limits on non-controlled
track, Sec. 214.327 requires the track to be made physically
inaccessible and provides five methods to do so. In the NPRM,
consistent with the recommendations of the Working Group, FRA proposed
to add three new methods for making non-controlled track physically
inaccessible.
---------------------------------------------------------------------------
\16\ ``Non-controlled track'' means ``track upon which railroads
are permitted by railroad rule or special instruction to move
without receiving authorization from a train dispatcher or control
operator.'' 49 CFR 214.7.
---------------------------------------------------------------------------
First, proposed new paragraph (a)(6) would allow using a manned
locomotive (with or without cars coupled to it) to establish a point of
inaccessibility into working limits. In this final rule, FRA is
adopting paragraph (a)(6) as proposed. To establish a locomotive as a
point of inaccessibility under proposed Sec. 214.327(a)(6)(i), a RWIC
must communicate with the train crew in control of the locomotive and
determine that: (1) He or she can see the locomotive; and (2) the
locomotive is stopped. Once this initial communication and
determination is made, proposed paragraph (a)(6)(ii) prohibits further
movement of the locomotive except as permitted by the RWIC.\17\
Paragraph (a)(6)(iii) prohibits the crew of the locomotive from leaving
the locomotive unattended or going off duty unless the crew
communicates with the RWIC and the RWIC establishes an alternate means
of on track-track safety. As noted in the NPRM, ``attended'' means the
crew is in a position to readily control the locomotive (the locomotive
engineer does not need to remain at the control position for the entire
time working limits are in effect). See 49 CFR 232.103(n).\18\ Finally,
paragraph (a)(6)(iv) applies if cars are coupled to a locomotive being
used to make a track inaccessible under this section. As proposed, this
paragraph requires cars coupled to the end of the locomotive nearest
the roadway workers to be connected to the train's air brake system,
and the air brake system must be charged with air to initiate an
emergency brake application in case of unintended uncoupling. Cars
coupled to the locomotive on the opposite end of the roadway workers
must have sufficient braking capability to control movement.
---------------------------------------------------------------------------
\17\ As FRA noted in the NPRM, these proposed requirements
parallel the existing requirements of Sec. 214.325's train
coordination provision, but this proposed procedure differs from
train coordination because it is a way to establish working limits
on non-controlled track (and as such additional trains could move
into the same segment of track at any time).
\18\ A remote control locomotive may be used to provide working
limits under this proposal. If a remote control locomotive is used,
the remote control operator must attend to (be on or near) the
remote control locomotive while it is used to provide working
limits.
---------------------------------------------------------------------------
In response to proposed paragraph (a)(6), MTA suggested that FRA
not limit this proposed provision to use of locomotives only and
instead allow the use of other types of on-track equipment to render
track inaccessible. After considering this request, for several
reasons, FRA declines to adopt MTA's suggestion. First, the Working
Group did not recommend it. Second, using other on-track equipment that
may weigh substantially less than a locomotive, and might not have a
similar level of positive air brake protection as provided by a
locomotive, will not provide as much resistance to rolling equipment as
a locomotive would. Third, another piece of on-track equipment adjacent
to a roadway work group is likely part of the roadway work group and
likely being used to perform roadway maintenance duties. FRA does not
want to require an equipment operator engaged in the performance of
substantive work to also be required to provide for the on-track safety
of a roadway work group by serving as a physical block. FRA believes
this could diminish the safety of the roadway workers being protected
by the physical block and lead to confusion.
Consistent with the Working Group's consensus recommendation,
paragraph (a)(7) proposed to allow using a railroad's block register
territory rules as a method to render track inaccessible and establish
working limits on non-controlled track.\19\ In this final rule, FRA is
adopting paragraph (a)(7) substantially as proposed, but is specifying
a RWIC or lone worker maintains the absolute right to render track
physically inaccessible by an alternative method authorized by this
section.
---------------------------------------------------------------------------
\19\ As discussed in the NPRM, block register territory is
generally considered non-controlled track, but when a train
dispatcher or other employee must authorize occupancy or movement on
a track in block register territory, the track becomes controlled
track and proposed paragraph (a)(7) would not apply. Instead, the
on-track safety methods for controlled track under subpart C would
apply (Sec. Sec. 214.319, 214.321, 214.323 or 214.325).
---------------------------------------------------------------------------
Generally, in block register territory a train can occupy a block
of track only after its crew reviews a log book or register to ensure
no other trains or equipment are occupying that block. After verifying
that no other trains are occupying a block, a train crew wishing to
occupy a particular block would then indicate in the log book their
train is occupying the block. Upon exiting the block, the crew would
indicate in the log book, that their train cleared the block. The
Working Group recommended a RWIC or lone worker be allowed to utilize a
railroad's procedures governing block register territory to establish
working limits on non-controlled track. Existing Sec. 214.313(a)
requires roadway workers to follow a railroad's on-track safety rules
and procedures.
Under this new paragraph (a)(7), working limits are established
when a RWIC or lone worker complies with all applicable railroad
procedures for occupying a block register territory (including making
the required log entries to indicate the block is occupied). When the
log indicates a roadway worker or work group is occupying a track, the
railroad's operating rules must prohibit the entry of any other trains
or other on-track equipment into the block. Proposed paragraph (a)(7)
provided the RWIC or lone worker with the absolute right to choose to
use the procedures in paragraphs (a)(1) through (6) of this section
(any of the five existing methods of establishing working limits on
non-controlled track or the proposed method allowing for the use of a
locomotive to make a track inaccessible) as opposed to a railroad's
block register procedures. FRA requested comment on if newly proposed
paragraph (a)(8) (providing for the establishment of working limits by
bulletin on non-controlled main track within yard limits or restricted
limits) should be included in that list, as proposed paragraph (a)(8)
would be another method to establish inaccessible track working limits
authorized by Sec. 214.327. In response, BMWED/BRS's comment stated
the regulation must allow RWICs to render non-controlled block register
territory and main tracks within yard limits or restricted limits (the
tracks affected by proposed paragraph (a)(8)) physically inaccessible.
FRA agrees, and has adopted in this final rule a provision providing a
RWIC or lone worker with
[[Page 37871]]
the absolute right to use any other provision of Sec. 214.327 to make
track in a block register territory inaccessible if, for any reason,
they choose to do so. This amendment provides the flexibility for the
RWIC or lone worker to utilize paragraphs (a)(1)-(6) or paragraph
(a)(8) of this section to establish working limits rather than
utilizing this block register territory procedure.
As recommended by the Working Group, proposed paragraph (a)(8) of
this section addressed establishing working limits by bulleting on non-
controlled main tracks within yard and restricted limits. As proposed,
paragraph (a)(8) would require railroad operating rules to ensure train
or engine crew or operators of on-track equipment are notified of any
working limits in effect on main track in yard limits or restricted
limits before entering the limits. Under paragraph (a)(8), railroad
operating rules must prohibit movements on main track within yard
limits or restricted limits unless the crew or operator of the on-track
equipment is first required to receive notification of any working
limits in effect. Before occupying the track where any notification of
working limits are in effect, the crew or operator must receive
permission from the RWIC to enter the working limits. The Working Group
intended this provision to apply to planned work activities (activities
railroads know about and plan for in advance enabling railroads to
produce bulletins or other forms of notification ahead of time to be
issued to train crews or operators).
As proposed, if the maximum authorized speed is restricted speed
(as defined by Sec. 214.7), paragraph (a)(8) requires the display of
red flags or signs at the limits of the roadway worker(s) working
limits. As noted in the NPRM, this requirement provides an extra
measure of safety by providing train crews notice to stop their
movement unless they have the RWIC's permission to enter the working
limits. Where restricted speed is in effect, proposed paragraph (a)(8)
requires train crews or operators to stop their movement within one-
half the range of vision (one-half the distance to the flag). Where the
maximum authorized speed is over restricted speed, proposed paragraph
(a)(8) requires advance warning flags or signs, as physical
characteristics permit to ensure an approaching crew or operator is
able to stop his or her train or other on-track equipment short of the
working limits.
In response to this proposal, BMWED/BRS's submitted comments
opposing allowing any train to operate in excess of restricted speed
under paragraph (a)(8). BMWED/BRS recommended revising paragraph (a)(8)
to require a train or engine receiving notification of any working
limits in effect to operate at restricted speed and prepared to stop
within half the range of vision of any stop signs or flags marking
working limits. BMWED/BRS also proposed amended rule text giving the
RWIC or lone worker the absolute right to utilize another applicable
provision of Sec. 214.327(a) to render track inaccessible other than
proposed paragraph (a)(8).
After carefully evaluating this issue and BMWED/BRS's comment, FRA
is adopting paragraph (a)(8) as proposed, with a minor modification.
FRA has added reference to ``other on-track equipment'' in addition to
the Working Group's consensus reference to trains or engines in this
paragraph. As discussed above in the analysis for Sec. 214.323 (foul
time), an incursion into working limits by a piece of on-track
equipment that might not be part of the roadway work group presents the
same hazards to roadway workers as an incursion by a train or
locomotive.
FRA is not adopting BMWED/BRS's recommended modifications to
paragraph (a)(8), because it is an RSAC consensus recommendation that
both BMWED and BRS agreed to. Also, as discussed above, the procedure
of paragraph (a)(8) is intended for use when railroads are conducting
planned work activities and, as such, the procedure is comparable to
longstanding existing requirements for establishing working limits on
controlled track under Sec. 214.321. The procedures of Sec. 214.321
are proven to be safe when complied with, even though those procedures
are typically used on main track over which train operate at much
higher speeds than that contemplated under paragraph (a)(8) of this
section. Also, under existing paragraph Sec. 214.327(a)(1), railroads
are permitted to use flagmen (without the benefit of bulletins to train
crews or mandatory use of advance flags) to make non-controlled track
inaccessible. Appropriately placed stop boards (or flags), designating
the point at which trains or other on-track equipment may not travel
any further without permission, effectively serves the same function as
flagmen. Paragraph (a)(8)'s requirement that bulletins be issued to
train crews before the crews can operate into a roadway worker or work
group's limits, and that advance flags be placed, when possible, where
speeds higher than restricted speed are authorized, represent two
additional measures of safety not in Sec. 214.327's existing provision
authorizing the use of flagmen. Further, FRA believes most situations
will not involve speeds exceeding restricted speed, as U.S. railroads'
operating rules traditionally require compliance with restricted speed
operating rules when trains or other on-track equipment are traveling
over main track within yard limits or restricted limits. Because it is
not always possible (or useful) to place advance flags warning of
upcoming working limits, FRA is not adopting an absolute requirement
for advance flags for all movements above restricted speed. For
example, if there are many entrance switches from a railroad yard to a
section of non-controlled main track, advance flags might not be
practical and may serve no useful purpose for a train leaving the yard
track at restricted speed to enter the main track where a higher speed
is authorized. Historically, railroads' own operating rules have
addressed the use of advance flags, and contain specific provisions for
when advance flags are not necessary (e.g., when entering a railroad's
yard limits from a foreign railroad's track, where advance flags cannot
be practically located).
Section 214.329 Train Approach Warning Provided by Watchmen/Lookouts
Section 214.329 addresses using watchmen/lookouts to provide
warning of approaching trains to roadway workers in a roadway work
group who foul track outside of working limits. In the NPRM, FRA
proposed four amendments to this section. First, FRA proposed to amend
paragraph (a) of this section to accommodate proposed new Sec.
214.338(a)(2)(iii) regarding passenger station platform snow removal.
However, as discussed above, FRA is not adopting proposed Sec. 214.338
in this final rule. Thus, FRA is not adopting the proposed amendment to
paragraph (a) of Sec. 214.329 referencing the snow removal provision.
In the NPRM, FRA also proposed to amend paragraph (a) to change the
reference to ``maximum speed authorized'' to ``maximum authorized
speed.'' This amendment reflects the Working Group's recommended
consensus definition of ``maximum authorized speed'' to e clarify
existing sections Sec. Sec. 214.329(a) and 214.337(c)(4). FRA proposed
to amend these two sections merely to properly order the words in the
Working Group recommended and which FRA adopted in this final rule.
FRA also proposed to amend paragraph (a) of this section by adding
a sentence to the end of the paragraph prohibiting the use of a track
as a place of safety to be occupied upon the approach of a train,
unless working
[[Page 37872]]
limits are established on that track. As explained in the NPRM, this
language is already in existing Sec. 214.337(d), which governs on-
track safety procedures for lone workers. This requirement is also the
subject of FRA Technical Bulletin G-05-10. As explained in that
Technical Bulletin, it is expected that roadway workers would clear all
tracks when given a train approach warning. Clearing onto another track
where only train approach warning (or no form on-track safety) is
provided presents an extremely dangerous situation which may
potentially trap workers if multiple train movements occur
simultaneously. FRA has long interpreted existing Sec. 214.329 to
already prohibit using another track as a place of safety, and this
amendment merely codifies that interpretation.
AAR commented this proposal is infeasible for Amtrak. AAR stated
that in Penn Station, roadway workers do clear to a live track
protected by a watchman/lookout. AAR suggested revising this proposal
in a final rule to allow such scenarios by adding ``. . . or that track
is protected by a watchman/lookout'' to the rule text. FRA declines to
alter this proposal for safety reasons. As explained above, FRA has
long interpreted existing Sec. 214.329 to already prohibit using
another track as a place of safety and issued Technical Bulletin G-05-
10 to address this particular situation. If a place of safety is
designated as another track protected by a watchman/lookout, but a
train approaches on that track (which is designated as the place of
safety) while roadway workers clear toward it, the situation is the
same as having no on-track safety at all. Common sense dictates that if
roadway workers are given train approach warning and clear onto another
track where nothing stops a train from also approaching on that track
at the same time, it endangers roadway workers who are left without a
place of safety to go to. Thus, a general exclusion in the regulation
allowing such a situation to occur is not appropriate from a safety
perspective. If a unique situation exists at a particular location such
as Penn Station where roadway workers will always have an appropriate
place of safety to occupy when a train approaches, FRA believes a
waiver application from this safety-critical requirement could be
appropriate to address such unique situations. FRA Technical Bulletin
G-05-10 is supplanted upon the effective date of this final rule.
Last, FRA proposed to add a new paragraph (h) to this section. This
paragraph would have prohibited the use of train approach warning as an
acceptable form of on-track safety for a roadway work group using
equipment or material that cannot be readily removed by hand from the
track to be cleared. FRA did not adopt this proposal in the final rule
as explained in detail in section VIII.A.4 above.
While FRA did not to adopt a provision in this final rule
addressing the removal of equipment or material by hand under train
approach warning, FRA is addressing a related matter where questions
occasionally arise under part 214. In part 214, no rule text prohibits
the use of train approach warning outside working limits to provide on-
track safety when on-track roadway maintenance machine foul track
(except Sec. 214.336(f), which governs when a component of a roadway
maintenance machine fouls an adjacent controlled track). Such blanket
rule text is not appropriate because train approach warning (or
individual train detection under Sec. 214.337) must sometimes be used
when a hi-rail or other on-track machine sets on a track to begin
traveling (perform roadway inspection duties) under the operating rules
of the railroad. In certain instances, depending on applicable railroad
operating rules and the operational conditions at a location, using
train approach warning or individual train detection can be
appropriate.
However, FRA notes that using train approach warning to provide on-
track safety for roadway workers who are performing roadway work
involving using on-track equipment would most often be in violation of
existing Sec. 214.329. In a recent example, FRA inspectors observed a
roadway work group using multiple pieces of on-track equipment spread
out over nearly a mile. Upon investigation, FRA learned the roadway
work gang was apparently using train approach warning under Sec.
214.329 as a form of on-track safety, with a watchman/lookout stationed
at each end of the roadway work group. The location where FRA observed
this violation was on non-controlled track where trains were required
to travel at restricted speed. In this situation, it was not possible
for the railroad to comply with Sec. 214.329. The machine operators
were operating noisy, distracting machinery that would require them to
look in a particular direction at the time of the warning to receive
such warning, in violation of Sec. 214.329(e). Second, the distance
the group was spread over, and the type of work being performed by the
group, made it impossible for a watchman/lookout far away to be able to
provide train approach warning to all members of the roadway work
group, which is also in violation of Sec. 214.329. It appears in this
instance the railroad was relying on the requirement that movements
must be made at restricted speed to protect the roadway work group. As
explained in the 1996 RWP final rule, the RWP regulation does not
recognize restricted speed as a sole means of providing on-track
safety. 61 FR 65969. The final rule stated that ``unusual circumstances
at certain locations where [restricted speed] might be considered
sufficient would have to be addressed by the waiver process.'' Id. at
65962. Thus, in the above-described instance, the use of qualified
flagmen to establish working limits (or any other method of
establishing working limits under Sec. 214.327) rather than the use of
watchman/lookouts would have been appropriate.
Aside from noise, distraction, and distance from a watchmen/
lookout, using train approach warning might also not be permissible to
provide on-track safety under part 214 for another reason. Roadway
workers who are operating such machines under train approach warning
would have to be able to stop a machine, dismount a machine, and then
move to occupy a place of safety at least 15 seconds prior to the
arrival of a train traveling at maximum authorized speed at the roadway
workers location. In such instances, compliance with Sec. 214.329 is
not possible. An operator inside the cab of a machine requires much
more time to occupy a place of safety versus a roadway worker who might
merely be standing in the foul of a track and can easily move to a
place of safety. In addition, where train speeds are permitted to
exceed restricted speed, in almost all instances, only the
establishment of working limits is appropriate to establish on-track
safety. To illustrate, even assuming proper train approach warning
could be given to roadway workers operating on-track machinery so they
could occupy a place of safety at least 15 seconds before a train's
arrival, if trains are permitted to travel in excess of restricted
speed, nothing prevents a train from colliding with the on-track
equipment left on the occupied track. Railroad operating rules are
generally the mechanism relied upon to prevent the collision of trains
and on-track roadway maintenance. However, the strict guidelines in
Sec. 214.329 and common sense dictate that, in most instances where
roadway workers are performing work on an occupied track with on-track
machinery, approach warning is not an appropriate or permissible method
to provide on-track safety for roadway workers.
[[Page 37873]]
Last, as discussed in the NPRM, FRA Technical Bulletin G-05-28
addresses using portable radios and cell phones. That technical
bulletin explains that under existing Sec. 214.329, such devices
cannot be used as the sole communication to provide train approach
warning to roadway workers. These devices are not among those expressly
listed in the existing watchman/lookout definition in Sec. 214.7.
Further, FRA believes this practice is dangerous; especially if these
devices fail in any manner as a train approaches a roadway work group.
While FRA has no objection to using a radio or a cell phone to
supplement the equipment issued to a watchman/lookout to provide train
approach warning, these devices cannot be used to provide the sole
auditory warning under this part.
Section 214.331 Definite Train Location
In the NPRM, FRA proposed to amend Sec. 214.331 to require
railroads to discontinue using definite train location as a form of on-
track safety within one year. NTSB and BMWED/BRS submitted comments
supporting this proposal. Thus, FRA is adopting the proposal in this
final rule.
Section 214.333 Informational Line-Ups of Trains
For the reasons explained in the NPRM, FRA proposed to amend Sec.
214.333 to require railroads to discontinue using informational line-
ups of trains within one year. NTSB and BMWED/BRS submitted comments
supporting the NPRM proposal. Thus, FRA is adopting the proposal in
this final rule.
Section 214.335 On-Track Safety Procedures for Roadway Work Groups,
General
Section 214.335 contains the general on-track safety procedures for
roadway work groups. Under this section, before a member of a roadway
work group fouls a track, on-track safety must be established under
subpart C. FRA proposed four amendments to this section. FRA received
no comments on these proposals, and, as explained below, has adopted
two of the four proposed amendments. Because FRA is not adopting
proposed new Sec. 214.324 (verbal protection) or Sec. 214.338 (snow
removal), FRA is not amending existing paragraph (a) of this section to
reference those sections as proposed. In the NPRM, FRA proposed to
update the list of acceptable methods to establish working limits, FRA
is amending paragraph (a) to reference Sec. 214.336 (adjacent track
protections) because that section took effect on July 1, 2014. For the
reasons explained in the NPRM, FRA is also removing ``and'' from the
existing text of paragraph (a) listing the available acceptable methods
of establishing working limits and replacing it with ``or.'' FRA is
also incorporating the new term ``roadway worker in charge'' in
existing paragraph (b) of this section for the reasons discussed above.
Section 214.337 On-Track Safety Procedures for Lone Workers
Section 214.337 governs the on-track safety procedures for lone
workers. In the NPRM, FRA proposed to adopt two Working Group consensus
recommendations changing this section, including: (1) Amending existing
paragraph (c)(3) to allow the use of individual train detection (ITD)
at controlled points consisting of signals only; and (2) adding a new
paragraph (g) prohibiting the use of ITD by lone workers using
equipment or material that cannot be readily removed from a track by
hand. In response to the proposed amendment to paragraph (c)(3), and in
light of the new definitions FRA proposed for ``controlled point'' and
``interlocking, manual'' in Sec. 214.7, both AAR and BMWED/BRS
expressed concern about the effect of those definitions on Sec.
214.337(c)(3)'s restrictions on the use of ITD by lone workers. FRA
addresses these concerns in the Section-by-Section analysis of Sec.
214.7 above.
As discussed in the NPRM, existing paragraph (c)(3) of Sec.
214.337 prohibits lone workers from using ITD to establish on-track
safety within the limits of a manual interlocking, a controlled point,
or a remotely controlled hump yard facility. The Working Group
recommended expanding the locations where ITD can be used by lone
workers to include controlled points consisting of signals only. FRA is
adopting this consensus recommendation in this final rule as proposed.
As noted above, in the NPRM, FRA also proposed to adopt the Working
Group's consensus recommendation to add a new paragraph (g) to this
section. As recommended by the Working Group, new paragraph (g) would
prohibit using ITD as a form of on-track safety for a lone worker using
machinery, equipment, or material they cannot readily remove from a
track by hand. For the reasons discussed in the NPRM, FRA is adopting
this revision as proposed.
Section 214.339 Audible Warning From Trains
Based on the Working Group's recommendations, in the NPRM, FRA
proposed revisions to existing Sec. 214.339's requirement that trains
sound their locomotive whistles and bells when approaching roadway
workers ``on or about the track.'' As recommended by the Working Group,
FRA proposed to require railroads to adopt and comply with written
procedures providing for ``effective . . . audible warning by horn and/
or bell for trains and locomotives approaching any roadway workers or
roadway maintenance machines . . . on the track on which the movement
is occurring, or about the track if the roadway workers or roadway
maintenance machines are at a risk of fouling the track.''
After considering comments received, in this final rule, FRA is
adopting the revisions as proposed. As discussed in detail in the NPRM,
four FRA Technical Bulletins (G-05-08, G-05-15, G-05-26, and G-05-27)
currently provide guidance on the requirements of Sec. 214.339. These
technical bulletins are supplanted upon the effective date of this
final rule.\20\
---------------------------------------------------------------------------
\20\ The NPRM discussed these Technical Bulletins and various
issues the bulletins addressed in detail (audible warnings during
shoving movements, operation of multiple-unit passenger train
equipment no equipped with a bell, audible warnings over a large
work area and duration of those warnings). FRA refers the reader to
the NPRM for more information. 77 FR 50324, 50354, Aug. 20, 2012.
---------------------------------------------------------------------------
NJT, BMWED/BRS, and 3M commented on the proposed revisions to this
section. 3M did not directly address the specifics of FRA's proposed
revised requirements for audible warnings of trains approaching roadway
workers. Like their comments on proposed Sec. 214.338, 3M recommended
requiring roadway workers to wear high visibility safety apparel to
alert approaching train crews to their presence on or near track.
Referencing the NPRM's preamble discussion of the passage of large
roadway work groups, such as tie and surfacing production crews spaced
out over a long distance, NJT commented the requirement that the
locomotive horn be sounded upon the approach of each unit of a work
crew will create quality of life complaints about noise in many
municipalities. BMWED/BRS supported FRA's proposed revisions to this
section.
In response to 3M's comment, FRA considered requiring certain
roadway workers to wear highly visible clothing. See section VIII.A.1
of this preamble discussing proposed Sec. 214.338 not
[[Page 37874]]
adopted in this final rule. Although in this final rule FRA is not
adopting this specific requirement, FRA obviously encourages using
highly visible reflective clothing and personal protective equipment to
help clearly showed the presence of roadway workers on or near railroad
tracks to locomotive engineers and other on-track equipment operators.
FRA also notes most railroad rules already require roadway workers to
wear highly visible clothing.
In response to NJT's comment, FRA understands complaints railroads
receive about field noise from train horns, particularly at highway-
rail grade crossings, and where a roadway work group is working at a
particular point in time. FRA understands the potential sensitivity to
noise of residents who live in close proximity to railroad tracks.
However, providing an audible warning to roadway workers of an
approaching train is a longstanding safety-critical component of the
RWP regulation and any railroad's on-track safety program--even within
highway-rail grade crossing quiet zones. FRA notes the amendments to
this section in this final rule are not a substantive change to the
particular issue raised by NJT, and FRA's discussion in the NPRM
preamble merely restated FRA's longstanding expectation that trains
must provide audible warning to roadway workers on or near the track
upon the approach of each unit of a work crew. As explained in
Technical Bulletin G-05-08 issued in 2005, existing Sec. 214.339
requires trains to provide an audible warning when approaching each
roadway worker or roadway work group located within a large scale
maintenance project.
Sec. 214.343 Training and Qualification, General
Existing Sec. 214.343 sets forth the general training and
qualification requirements for roadway workers. Paragraph (c) of
existing Sec. 214.343 requires railroad employees other than roadway
workers associated with on-track safety procedures, and whose primary
duties involve the movement and protection of trains, to be trained
``to perform their functions related to on-track safety through the
training and qualification procedures prescribed by the operating
railroad for the primary position of the employee.''
In the NPRM, FRA proposed to amend paragraph (c) to account for
proposed new Sec. 214.353 addressing training employees other than
roadway workers (typically transportation employees such as conductors)
who act as RWICs. MTA commented on this proposal, supporting the
training and qualification of transportation employees under the
procedures the railroad prescribes for the primary position of the
employee. Thus, FRA is adopting revision to paragraph (c) of this
section as proposed. However, FRA did receive comments in response to
the NPRM proposal for Sec. 214.353 that implicate this section and
addresses those comments in the Section-by-Section analysis for Sec.
214.353 below.
Sec. 214.345 Training for All Roadway Workers
Existing Sec. 214.345 has the minimum training contents for
roadway workers required by existing subpart C. FRA proposed to amend
this section to incorporate two Working Group consensus
recommendations. First, to clarify and reinforce the requirements of
the existing RWP regulation, FRA proposed adding ``[c]onsistent with
Sec. 214.343(b)'' to the beginning of the first sentence of the
existing introductory paragraph of the section. Section 214.343(b)
requires employers to provide all roadway workers initial or recurrent
training once every calendar year on the on-track safety rules and
procedures they are required to follow. In this final rule, FRA is
adopting this revision as proposed. As noted in the NPRM, Technical
Bulletin G-05-16 provides guidance on existing Sec. 214.345 and is
supplanted upon the effective date of this final rule.
In the NPRM, FRA also proposed adding a new paragraph (f) to this
section reflecting the Working Group's consensus recommendation
requiring all roadway workers' training to include instruction on an
employer's procedures governing how roadway workers should determine if
it is safe to walk across railroad tracks. FRA removed that consensus
item from Sec. 214.317(b), and proposed to include it as new paragraph
(f) of this section. In this final rule, FRA is adopting this
requirement as proposed.
In preparing this final rule, FRA noticed in the NPRM preamble
discussion, it incorrectly intermingled discussion of the periodic
``qualification'' of roadway workers with the existing roadway worker
annual training requirement. See 77 FR 50330. Since the original RWP
rule first took effect in 1997, it has required roadway workers to
receive annual training on the on-track safety procedures they must
follow. See 49 CFR 214.343(b). As exemplified by the inclusion of costs
for annual training for all roadway workers (including lone workers,
watchmen/lookouts, flagmen, and RWICs), in the RIA for the 1996 final
rule, and the assessment of the paperwork burden for annual training in
the Paperwork Reduction Act information collection estimates provided
by FRA in the 1996 final rule, this annual training requirement
includes training for all roadway worker qualifications. Further, in
2005, FRA issued Technical Bulletin G-05-16, clarifying that the
required time frame for the unspecified ``periodic'' qualification for
additional roadway worker qualifications is separate from the annual
training requirement of Sec. 214.345 and applies across all the
additional roadway worker qualifications. The existing definition of
the term ``watchmen/lookout'' also states it means an employee who has
been annually trained and qualified to provide warning to roadway
workers of approaching trains or on-track equipment. Technical Bulletin
G-05-16 further explained that because subpart C does not specify a
timeframe for the required ``periodic qualification'' of roadway
workers, determining an appropriate timeframe is at the discretion of
individual railroads and should be specified in each railroad's on-
track safety program. Therefore, the annual training requirement
existing since the RWP regulations were promulgated is unchanged by
this final rule.
Sec. 214.347 Training and Qualification for Lone Workers
Section 214.347 sets forth the training and qualification
requirements applicable to lone workers and requires the initial and
``periodic'' qualification of lone workers to be ``evidenced by
demonstrated proficiency.'' In the NPRM, FRA proposed to amend this
section by incorporating the Working Group's consensus recommendation
to require the training of lone workers on alternative means to access
the information in a railroad's on-track safety manual when his or her
duties make it impractical to carry the manual. In this final rule, FRA
is adopting this provision substantially as proposed. FRA is making
minor adjustments to the language in response to BMWED/BRS's comment on
Sec. 214.309 noting that lone workers are not literally required to
``carry'' the on-track safety manual at all times, but rather that the
manual must be readily available to them at all times. FRA is also
correcting a typographical error in the rule text of this proposed
revision by removing the extra word ``to'' in proposed paragraph
(a)(5).
In the NPRM, FRA also asked for comment on two additional issues on
the training and qualification of lone workers. First, FRA noted the
Working Group's consensus recommendation to
[[Page 37875]]
require requalification of roadway workers every 24 months, and
recurrent lone worker training every calendar year, did not parallel
the separate RSAC recommendation resulting from the mandate of Section
401 of the Rail Safety Improvement Act of 2008 (Section 401) for FRA to
set minimum training standards for ``each class and craft of safety-
related railroad employee.'' \21\ Thus, FRA asked for comment on how to
proceed regarding an appropriate time interval for ``periodic''
qualification in a final rule. Second, FRA asked if it should require a
physical characteristics qualification for lone workers.
---------------------------------------------------------------------------
\21\ Public Law 110-432, Division A, 122 Stat. 4848 (codified at
49 U.S.C. 20162).
---------------------------------------------------------------------------
Since publication of the NPRM, based on the recommendations of the
RSAC Training Standards Working Group, FRA published a final rule
addressing the mandate of Section 401. 79 FR 66460, Nov. 7, 2014
(Training Standards Rule; part 243). The rule includes minimum training
standards for roadway workers and extensive refresher qualification
requirements for roadway workers.
In response to this request for comment, SEPTA, BMWED/BRS, AAR, and
two individuals submitted comments. SEPTA suggested that in this final
rule, FRA should defer to the three-year interval for training and
qualification in the Training Standards Rule. SEPTA asked why, when
under the Training Standards Rule, training and re-certification for
safety-critical positions such as conductors, engineers, and train
dispatchers only has to occur every three years, roadway workers would
be treated differently and trained annually. SEPTA asserted existing
Sec. 217.9 (requiring operational testing of employees) and Sec.
243.205 (Training Standards Rule training and qualification interval)
are adequate to ensure employees know how to perform their work
properly.
Noting that at the time of its comment 44 roadway worker fatalities
had occurred since 1997, BMWED/BRS supported an annual training and
qualification requirement for all roadway workers, and opposed FRA not
adopting the Working Group's consensus recommendation for a 24-month
periodic qualification interval.
Consistent with SEPTA's comment, AAR asserted no basis exists for
determining more frequent refresher training or qualification should be
required for roadway workers than for other safety-related employees
under the Training Standards Rule. Pointing to FRA's RIA for the
Training Standards NPRM, AAR also expressed the view that the Working
Group's consensus recommendation could not be justified from a cost-
benefit perspective due to lack of a safety benefit from more frequent
training.
Individual commenters supported the Working Group's consensus
recommendation to require annual training and periodic qualification
every 24 months, stating generally that more frequent refresher
training will have better results. These commenters believe the
benefits of more frequent refresher programs would outweigh the cost of
the programs' development and implementation. The individual commenters
pointed to OSHA's training standards as a model, and urged FRA to adopt
a uniform standard of appropriate time intervals for refresher
training. The comment did note that implementing programs similar to
OSHA's would be burdensome.
As stated in the discussion of Sec. 214.343 above, in this final
rule FRA is not amending the existing annual training requirements of
subpart C. FRA did not intend this rulemaking to decrease the training
roadway workers receive via existing requirements, and believes it
reasonable to continue the existing annual training requirement.
Because subpart C already requires annual training for roadway workers,
this approach will not result in any additional costs.
In this final rule, FRA is, however, adding a new paragraph Sec.
214.347(b) requiring lone workers to be qualified under part 243 and to
be based on evidence of a lone worker's demonstrated proficiency. Part
243 requires covered employees to be qualified at least every three
calendar years. The costs for this qualification requirement are
already accounted for in the Training Standards Rule. Although FRA
encourages railroads to conduct refresher qualifications more often
than the minimum of once every three calendar years under part 243, FRA
agrees with AAR that from a cost-benefit basis, the evidence does not
support a more frequent qualification requirement for roadway workers
than other safety-critical employees subject to part 243 (e.g.,
locomotive engineers). FRA also agrees with SEPTA that existing Sec.
217.9's requirements for operational testing already provide a much
more frequent opportunity for observations by railroad officials to
determine employee proficiency with rules' compliance than does either
a two- or three-year required interval for determining qualification
via demonstrated proficiency.
A lone worker's ``demonstrated proficiency'' under this new
paragraph (b) refers to the longstanding requirement FRA explained in
the original 1996 RWP rule. In that rule, FRA stated a roadway worker
must show
sufficient understanding of the subject that the employee can
perform the duties for which qualification is conferred in a safe
manner. Proficiency may be demonstrated by successful completion of
a written or oral examination, an interactive training program using
a computer, a practical demonstration of understanding and ability,
or an appropriate combination of these.
61 FR 65972.
Many of part 243's requirements will not take effect for a number
of years, depending on a railroad's total employee work hours. See 49
CFR 243.101(a). In the interim, FRA encourages railroads to comply with
part 243's requirements as soon as possible, and, consistent with
Technical Bulletin G-05-16, continue to specify in their on-track
safety programs the interval at which ``periodic'' roadway work
qualifications will take place. Upon the relevant applicability date of
part 243's requirements for a particular railroad, that railroad must
comply with part 243's qualification requirements (and the
requalification of roadway workers must be at least every three
calendar years).
Last, as discussed in section VIII.A above, in the NPRM, FRA asked
if it should require physical characteristics qualification for lone
workers. For the reasons explained in section VIII.A, FRA is not
adopting this requirement in this final rule.
Sec. 214.349 Training and Qualification for Watchmen/Lookouts
Section 214.349 sets forth the training and qualification
requirements applicable to watchmen/lookouts and, consistent with
existing Sec. 214.347 applicable to lone workers, requires the initial
and ``periodic'' qualification of lone workers to be ``evidenced by
demonstrated proficiency.'' In the NPRM, FRA requested comment on how
to address the Working Group's consensus recommendation to require
requalification of roadway workers, including watchmen/lookouts, every
24 months. For the reasons discussed in the Section-by-Section analysis
of Sec. 214.347 above, FRA is not adopting this consensus
recommendation in this final rule. Instead, this final rule requires
periodic qualification for watchmen/lookouts to be performed consistent
with the Training Standards Rule (every three calendar years) and be
[[Page 37876]]
based on evidence of demonstrated proficiency.
Consistent with its request for comment on Sec. 214.347 discussed
above, FRA asked if it should require a physical characteristics
qualification for watchmen/lookouts. For the reasons explained in
section VIII.A above, FRA is not adopting such a requirement in this
final rule.
Sec. 214.351 Training and Qualification for Flagmen
Section 214.351 sets forth the training and qualification
requirements applicable to flagmen and, consistent with existing Sec.
214.347 applicable to lone workers and Sec. 214.349 applicable to
watchmen/lookouts, requires the initial and ``periodic'' qualification
of flagmen to be ``evidenced by demonstrated proficiency.'' In the
NPRM, FRA requested comment on how to address the Working Group's
consensus recommendation to require requalification of roadway workers,
including flagmen, every 24 months. For the reasons discussed in the
Section-by-Section analysis of Sec. 214.347 above, FRA is not adopting
this consensus recommendation in this final rule. Instead, this final
rule is requiring that periodic qualification for watchmen/lookouts be
performed consistent with the Training Standards Rule (every three
calendar years) and be based on evidence of demonstrated proficiency.
Section 214.353 Training and Qualification of Each Roadway Worker in
Charge
Existing Sec. 214.353 is titled ``Training and qualification of
roadway workers who provide on-track safety for roadway work groups.''
Paragraph (a) of existing Sec. 214.353 lists the minimal contents of
RWIC training and paragraph (b) specifies that a RWICs initial and
periodic qualification must be evidenced by a ``recorded examination.''
In the NPRM, FRA proposed several changes to this section. BMWED/BRS
and AAR submitted comments responding to some of the proposed changes.
First, to reflect the new term ``roadway worker in charge,'' FRA
proposed to change the title of this section to ``[t]raining and
qualification of each roadway worker in charge.'' FRA received no
comments on proposals and in this final rule is amending the title as
proposed.
Second, consistent with the Working Group's recommendation, FRA
proposed to add a new paragraph (a)(5) to this section. Proposed
paragraph (a)(5) would require RWICs to be trained on procedures
ensuring they remain immediately accessible to the roadway workers
working within the working limits they establish. This paragraph
parallels new Sec. 214.315(a)(5) requiring on-track safety job
briefings conducted by RWICs to include information on the
accessibility of the RWIC, and on alternate procedures if the RWIC is
no longer accessible to members of the roadway work group. FRA received
no comments on this NPRM proposal, and in this final rule is adopting
new paragraph (a)(5) as proposed.
In its comment, BMWED/BRS recommended adding a new paragraph to
this section requiring RWICs to be trained on the content and
application of the railroad rules governing the resolution of good
faith challenges. BMWED/BRS noted that regardless of class or craft of
a RWIC, RWICs must understand the good faith challenge procedures and
their responsibility to promptly and equitably resolve the challenges.
FRA concurs with BMWED/BRS's statement that RWICs must understand the
good faith challenge procedures and their responsibility to resolve
such challenges, but believes the existing regulations already require
RWICs to be trained on a railroad's good faith challenge procedures.
Under existing Sec. Sec. 213.311-214.313, good faith challenges may be
raised by roadway workers and must be promptly and equitably resolved.
Indeed, under those sections, railroads must adopt procedures to
address such good faith challenges. Existing Sec. 214.343(b) requires
recurrent training every calendar year for the on-track safety rules
and procedures each roadway worker is required to follow, and this
includes a railroad's rules and procedures on good faith challenges for
a RWIC. See also Sec. 214.353(b) (RWIC training requirements).
Nonetheless, FRA believes BMWED/BRS's comment has merit because the
RWIC is typically involved in resolving roadway workers' good faith
challenges. As noted in the NPRM, Technical Bulletin G-05-04 specifies
that persons acting as RWICs must be qualified on good faith challenge
procedures, but the text of part 214 does not expressly state such.
Given the importance of ensuring RWICs are trained in a railroad's good
faith challenge procedures, FRA believes good faith challenge
procedures should be included as a required training and qualification
topic in paragraph (a) of Sec. 214.353. Thus, in this final rule FRA
is adding the words ``including the railroad's procedures governing
good faith challenges in Sec. Sec. 214.311(b) and (c) and 214.313(d)''
to existing paragraph (a)(1). While another railroad employee or
supervisor other than a RWIC may ultimately resolve a roadway worker's
good faith challenge to the on-track safety provided, an a RWIC is
typically involved in that resolution and must at least know the
railroad's procedures governing the handling of such a challenge.
BMWED/BRS's comment also suggested FRA amend paragraph (b) of this
section to require all RWICs, regardless of craft, to be annually
trained and qualified. As discussed further below, FRA believes the
amendments already made to paragraph (a) of this section, and to Sec.
214.343 as discussed above, address this issue. As amended by this
final rule, Sec. 214.353 clarifies that all RWICs, regardless of
craft, must be trained annually on the items in Sec. 214.353. As
discussed in the Section-by-Section analysis for Sec. Sec. 214.343,
214.345, 214.347, and 214.351 above, FRA is deferring to the training
standards rulemaking's three-year qualification interval for all
roadway worker qualifications.
In the NPRM, FRA proposed an additional amendment to existing
paragraph (a) of this section to address situations where employees
other than roadway workers act as RWICs. FRA proposed to expressly
require in paragraph (a) that any employee acting as a RWIC (e.g., a
conductor or a brakemen), who provides for the on-track safety of
roadway workers through the establishment of working limits or the
assignment and supervision of watchmen/lookouts or flagmen be trained
and qualified consistent with Sec. 214.353. BMWED/BRS submitted a
comment supporting this proposal and FRA is adopting it, as proposed,
in this final rule. For a detailed discussion of this change, see the
preamble to the NPRM. 77 FR 50356-50357.
Regarding the training and qualification requirements of paragraph
(b) of this section, for the reasons explained in the Section-by-
Section analysis of Sec. 214.347 above, FRA is addressing the
frequency of training and qualification requirements for RWICs the same
way as the requirements applicable to lone workers, flagmen, and
watchmen/lookouts (Sec. Sec. 214.347, 214.349, and 214.351). While
annual training for RWICs is still required under the existing
regulation, the periodic qualification of RWICs will be controlled by
the Training Standards Rule, which requires recurrent qualification
every three calendar years.
Also related to the training and qualification requirements
applicable to RWICs, in the NPRM, FRA requested comment on the practice
of bifurcating certain RWIC duties (i.e., splitting of RWIC duties
between two individuals).
[[Page 37877]]
Specifically, in the NPRM FRA indicated it was contemplating whether it
should continue to be allow bifurcation of RWIC duties, such as when
one employee obtains a track permit for another employee who is acting
as the RWIC. FRA was considering adopting a requirement that would only
permit the splitting of qualifications in situations where a conductor
or other railroad employee serves as a pilot to a RWIC (or employee
acting as a RWIC) who was not qualified on the physical characteristics
of a particular territory where work was being performed. FRA
considered such because every roadway work group already must have a
RWIC, and under the amendment to paragraph (a) in this final rule
discussed above, any employee acting as a roadway worker in charge must
be trained on the substantive requirements listed in Sec. 214.353.
AAR commented on this proposal suggesting another situation where
the bifurcating of RWIC duties should be acceptable. AAR suggested that
in situations where one employee obtains a working limits authority for
a roadway work group, but is not responsible for any other aspect of
the group's on-track safety, requiring the employee to be trained and
tested on all the responsibilities of a RWIC would not serve any
purpose. Consistent with AAR's comment, FRA notes existing Technical
Bulletin G-05-04 allows one employee to obtain a track permit for
another employee who is acting as the RWIC. FRA can also envision other
operating situations where one employee's ability to obtain authority
on behalf of an RWIC is desirable and necessary. For example, in the
case of a large system gang, a local track inspector may obtain
authority from the dispatcher for the system gang's RWIC. The BMWED/BRS
comment also addressed this topic, indicating that since each roadway
work group must have a RWIC qualified on physical characteristics under
Sec. 214.353, bifurcation was unnecessary and could cause confusion.
After further evaluating this issue and considering the comments,
FRA concludes bifurcation of RWIC duties can be safely done in the two
limited scenarios discussed above involving physical characteristics
qualifications (pilot) and when obtaining track authority for an RWIC.
FRA will continue to allow the practice of splitting RWIC duties in
these scenarios. For gangs working across a large system, FRA
recognizes it may not always be possible for an RWIC to be qualified on
the physical characteristics, and using a pilot who is qualified on the
physical characteristics can help safely facilitate compliance with
this section. As discussed more fully in the NPRM and Technical
Bulletin G-05-04, FRA also does not take exception to providing a
``limited'' qualification for a RWIC who would only perform certain
RWIC duties in certain situations. For example, a RWIC who was
performing such duties on a railroad consisting entirely of non-
controlled track could have a limited qualification only involving the
RWIC being trained and qualified to establish working limits via the
inaccessible track procedures (in addition to being trained on all
other Sec. Sec. 214.343, 214.345, and 214.353 requirements).
Sec. 214.355 Training and Qualification in On-Track Safety for
Operators of Roadway Maintenance Machines
Section 214.355 sets forth the on-track safety training and
qualification requirements for roadway maintenance machine operators.
In the NPRM, FRA requested comment on one potential change to this
existing section in the final rule on how best to proceed regarding the
appropriate time interval for ``periodic'' qualification under existing
paragraph (b). The Working Group recommended consensus amendments that
would have expressly required recurrent qualification every 24 months
for roadway maintenance machine operators. As discussed in the preamble
above for Sec. 214.347, however, the RSAC consensus recommendation
does not parallel the refresher qualification requirements in the
statutorily mandated Training Standards Rule (minimum three calendar
year interval).
FRA received comments in response to this request from SEPTA,
BMWED/BRS, AAR, and two individuals. Those comments are summarized
above in the preamble discussion for Sec. 214.347. For the reasons
also explained above, in this final rule, the Training Standards Rule
requiring recurrent qualification at a minimum of every three calendar
years will control.
FRA notes the Training Standards Rule included a provision
addressing the training and qualification for operators of roadway
maintenance machines equipped with a crane. 79 FR 66501. Those
requirements are in a new Sec. 214.357. FRA directs the public to the
Training Standards Rule preamble's Section-by-Section analysis for an
explanation of new Sec. 214.357's requirements. Id. at 66474-66476.
Appendix A to Part 214--Schedule of Civil Penalties
FRA is amending appendix A of this part to add guidance on
penalties for violations of new and amended sections of subpart C in
this final rule. Appendix A specifies the civil penalty FRA will
ordinarily assess for the violation of a particular provision of this
rule. However, consistent with 49 CFR part 209, appendix A, FRA's
Statement of Agency Policy Concerning Enforcement of the Federal
Railroad Safety Laws, FRA reserves the right to assess a penalty up to
the statutory maximum. Further, a penalty may be assessed against an
individual only for a willful violation. FRA did not solicit public
comment on appendix A as it is a statement of FRA policy.
X. Regulatory Impact and Notices
A. Executive Order 12866, Executive Order 13563 and DOT Regulatory
Policies and Procedures
This final rule has been evaluated consistent with existing
policies and procedures and determined to be a non-significant
regulatory action under Executive Orders 12866 and 13563 and DOT
policies and procedures. See 44 FR 11034, Feb. 26, 1979. FRA prepared
and placed a RIA addressing the economic impact of this final rule in
the Docket (No. FRA-2008-0086). Document inspection and copying
facilities are available at Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590.
As part of the RIA, FRA assessed quantitative measurements of the
cost and benefit streams expected to result from the implementation of
the final rule. Overall, the final rule would result in safety benefits
and expected business benefits for the railroad industry. It would
also, however, generate an additional burden on railroads mainly due to
the additional requirements for job briefings under certain
circumstances and various training requirements.
Table 1 summarizes the quantified costs and benefits expected to
accrue over a 20-year period. It presents costs associated with
expanded job briefing requirements under Sec. 214.315 Supervision and
Communication, the identification and implementation of redundant
protections under Sec. 214.319 Working Limits, Generally, railroad
policy change under Sec. 214.339 Audible Warning from Trains, and
training of various types of employees under Sec. Sec. 214.318,
214.345, 214.347, and 214.353.
[[Page 37878]]
The RIA also presents the quantified benefits expected to accrue
over a 20-year period. These benefits are primarily cost savings or
business benefits. They largely accrue due to time savings because of
the proposed amendments, including the new exception for on-track snow
blowing and weed spraying operations under Sec. 214.317, new methods
of using inaccessible track under Sec. 214.327, and using individual
train detection under Sec. 214.337. Savings will also accrue due to
the additional flexibility provided by new Sec. 214.318 allowing
mechanical employees to utilize blue signal protection in some
instances. All other amendments result in no cost or benefits because
they represent current industry practice and/or the adoption of current
FRA Technical Bulletins.
For the 20-year period analyzed, the estimated quantified costs to
the railroad industry total $20,965,962, discounted to $11,491,330
(present value (PV), 7 percent) and $15,832,099 (PV, 3 percent). For
the same 20-year period, the estimated quantified benefits total
$53,109,702, discounted to $28,132,247 (PV, 7 percent) and $39,506,913
(PV, 3 percent). Net benefits total $32,143,740, discounted to
$16,640,917 (PV, 7 percent) and $23,674,814 (PV, 3 percent). This
analysis demonstrates that the benefits for this final rule would
exceed the costs.
[GRAPHIC] [TIFF OMITTED] TR10JN16.001
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
The Regulatory Flexibility Act of 1980 (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 impacts on small
entities. FRA developed the final rule consistent with Executive Order
13272, Proper Consideration of Small Entities in Agency Rulemaking, and
DOT's procedures and policies to promote compliance with the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) to ensure potential impacts of
rules on small entities are properly considered.
The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a threshold analysis to determine if the proposed rule will or
may have a significant economic impact on a substantial number of small
entities (SEISNOSE) or not. Then, it must prepare an initial regulatory
flexibility analysis (IRFA) unless it determines and certifies a rule
is not expected to have a SEISNOSE.
As discussed earlier, FRA is amending its regulations on railroad
workplace safety to resolve interpretative issues that have arisen
since the 1996 promulgation of the original RWP regulation. In
particular, this final rule adopts certain terms, resolves
miscellaneous interpretive issues, codifies certain FRA Technical
Bulletins, adopts new requirements governing redundant signal
protections and the movement of roadway maintenance machinery over
signalized non-controlled track, amends certain qualification
requirements for roadway workers, and codifies FAST Act mandates. FRA
is also deleting three incorporations by reference of industry
[[Page 37879]]
standards in existing sections of part 214, subpart B that address
Bridge Worker Safety Standards and instead is referencing existing OSHA
regulations.
The small entity segment of the railroad industry faces little in
the way of intramodal competition. Small railroads generally serve as
``feeders'' to the larger railroads, collecting carloads in smaller
numbers and at lower densities than would be economical for the larger
railroads. They transport those cars over relatively short distances
and then turn them over to the larger systems which transport them
relatively long distances to their ultimate destination, or for handoff
back to a smaller railroad for final delivery. Although the relative
interests of various railroads may not always coincide, the
relationship between the large and small entity segments of the
railroad industry are more supportive and co-dependent than
competitive.
It is also extremely rare for small railroads to compete with each
other. Small railroads generally serve smaller, lower-density markets
and customers. They exist, and often thrive, doing business in markets
where there is not enough traffic to attract the larger carriers
designed to handle large volumes over distance at a profit. As there is
usually not enough traffic to attract service by a large carrier, there
is also not enough traffic to sustain more than one smaller carrier. In
combination with the huge barriers to entry in the railroad industry
(due to the need to own the right-of-way, build track, purchase a
fleet, etc.), small railroads rarely find themselves in competition
with each other. Thus, even to the extent the proposed rule may have an
economic impact, it should have no impact on the intramodal competitive
position of small railroads.
1. Description of Regulated Entities and Impacts
The ``universe'' of the entities under consideration includes only
those small entities that can reasonably be expected to be directly
affected by the provisions of this rule. For the rule there is only one
type of small entity that is affected: small railroads.
``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under section 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4) likewise
includes within the definition of ``small entities'' not-for-profit
enterprises that are independently owned and operated, and are not
dominant in their field of operations.
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.
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Under that authority, FRA 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 (STB) 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 part 1201. The same dollar
limit on revenues is established to determine whether a railroad
shipper or contractor is a small entity. FRA is using this definition
for this rulemaking. FRA received no comments pertinent to its use in
response to the NPRM.
Included in the entities impacted by this final rule are
governmental jurisdictions or transit authorities--most of which are
not small for purposes of this certification. There are two privately
owned commuter railroads that would be considered small entities.
However, both entities are owned by Class III freight railroads and,
therefore, are already considered small entities for purposes of this
certification.
Railroads
There are approximately 729 small railroads.\22\ Class III
railroads do not report to the STB, and the precise number of Class III
railroads is difficult to ascertain due to conflicting definitions,
conglomerates, and even seasonal operations. Potentially all small
railroads (a substantial number) could be impacted by this regulation.
However, because of certain characteristics these railroads typically
have, there should be very little impact on most, if not all of them. A
large number of these small railroads only have single-track
operations. Some small railroads, such as the tourist and historic
railroads, operate on 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 infrequent 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 is conducted during hours that the
track is not used.
---------------------------------------------------------------------------
\22\ FRA data for 2014 shows there are 779 Railroads. Thus, 779
Total Railroads--7 Class I Railroads--12 Class II Railroads
(includes Alaska RR)--31 Commuter/Amtrak (non-small) = 729 Small
Railroads.
---------------------------------------------------------------------------
Almost all commuter railroads do not qualify as small entities.
This is likely because almost all passenger/commuter railroad
operations in the United States are part of larger governmental
entities whose jurisdictions exceed 50,000 in population. As noted
above, two of these commuter railroads are privately owned and would be
considered small. However, they are already considered to be small
because they are owned by a Class III freight railroad. FRA is
uncertain how many contractor companies would be involved with this
issue. FRA is aware that some railroads hire contractors to conduct
some of the functions of roadway workers on their properties. However,
the costs for the burdens associated with the requirements of this
final rule would get passed on to the pertinent railroad. Most likely
the contracts would be written to reflect that, and the contractor
would bear no additional burden for the proposed requirements. Since
contractors would not be the entities directly impacted by any burdens,
it is not necessary to assess them in the certification.
No other small businesses (non-railroads) will be impacted by this
final rule.
The process used to develop most of this final rule provided
outreach to small entities in two ways. First, the RSAC Working Group
had at least one representative from a small railroad association,
namely, ASLRRA. Second, members of the RSAC itself include the ASLRRA
and other organizations that represent small entities. Thus, FRA
concludes that small entities had an opportunity for input as part of
the process to develop a consensus-based
[[Page 37880]]
RSAC recommendation made to the FRA Administrator.
Impacts
The impacts from this regulation are primarily a result of the
requirements for certain changes to the existing roadway worker
protection regulations, particularly regarding job briefings and
training of roadway workers.
The RIA for this rulemaking estimates that for the 20-year period
analyzed, the estimated quantified costs to the railroad industry total
$20,965,962, discounted to $11,491,330 (present value (PV), 7 percent)
and $15,832,099 (PV, 3 percent). FRA believes nearly all of this cost
will fall to railroads other than small railroads. Short line
railroads, the vast majority of which are Class III railroads,
represent an estimated 8 percent of the railroad industry. Since small
railroads generally collect carloads in such small numbers and low
densities, at low speeds, they require much less track maintenance.
Also, several parts of the new regulation do not apply to Class III
railroads. Furthermore, generally, small railroads have single tracks
that are not active around the clock. As such, road work can be done
when the track is not active, greatly reducing the burden of having to
provide roadway worker protection. As such, the cost of this rulemaking
is very minimal to the small railroad segment of the industry. Eight
percent of the total 20-year cost is $1,677,277 (an average annual cost
of $115 per small railroad).\23\ Although the rule may impact a
substantial number of small entities, FRA is confident that this final
rule does not impose a significant burden.
---------------------------------------------------------------------------
\23\ $20,965,962 * .08 = $1,677,277/20 years/729 small railroads
= $115 per year per small railroad.
---------------------------------------------------------------------------
2. Certification
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA
certifies this final rule will not have a significant economic impact
on a substantial number of small entities. FRA invited all interested
parties to submit data and information regarding the potential economic
impact that will result from the proposals in the NPRM. FRA did not
receive any comments concerning this certification in the public
comment process.
C. Paperwork Reduction Act
The information collection requirements in this final rule are
being submitted upon publication in the Federal Register for Office of
Management and Budget (OMB) approval 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 annual Average time per Total annual
CFR section Respondent universe responses response burden hours
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.119--Part 214 350 Safety 120 forms.......... 4 hours............ 480
Railroad Workplace Safety Inspectors.
Violation Report.
214.307--Railroad On-Track Safety 722 Railroads...... 722 programs + 851 2 hours + 2 minutes 1,472
Programs (Revised Requirements)-- copies.
RR Programs that comply with
this Part + copies at System/
Division Headquarters.
--RR Notification to FRA not 722 Railroads...... 825 notices........ 20 minutes......... 275
less than one month before
on-track safety program
takes effect.
--RR Amended On-Track Safety 722 Railroads...... 34 programs........ 4 hours............ 136
Programs after FRA
Disapproval.
--RR Written Response in 722 Railroads...... 2 written responses 40 hours........... 80
Support of Disapproved
Program.
214.309--New Requirements--On- 722 Railroads...... 722 provisions..... 60 minutes......... 722
Track Safety Manual.
--RR Provisions for 60 Railroads....... 100 bulletins/ 60 minutes......... 100
Alternative Access to notices.
Information in On-Track
Safety Manual.
--RR Publication of Bulletins/
Notices reflecting changes
in on-track safety manual.
214.311--RR Written Procedure to 50 New Railroads... 25 generic 30 minutes + 24 613
achieve prompt and equitable procedures + 25 hours.
resolution of Good Faith developed
Employee Challenges. procedures.
214.313--Good Faith Challenges to 20 Railroads....... 80 challenges...... 8 hours per 640
On-Track Safety Rules. challenge.
214.315/335--Supervision 50,000 Rdwy Workers 16,350,000 brf..... 2 minutes.......... 545,000
+communication.
--Job Briefings..............
--Adjacent-Track Safety 24,500 Rdwy Workers 2,403,450 brf...... 30 seconds......... 20,029
Briefings.
--Information on 300 Roadway Work 594,000 briefings.. 20 seconds......... 3,300
Accessibility of Roadway Gangs (10
Worker in Charge (RWIC) and Employees in each
Alternative Procedures in gang x 59,400
Event RWIC is No Longer briefings).
Accessible to Work Gang (New
Requirement).
214.317--On-Track Procedures for 20 Railroads....... 20 operating....... 60 minutes......... 20
Snow Removal (New Requirements).
--On-Track Procedures for 722 Railroads...... 722 operating 60 minutes......... 722
Weed Spray Equipment. procedures.
--Roadway Worker in Charge 722 Railroads...... 25 designation..... 5 minutes.......... 2
(RWIC) Designation of
alternative place of safety
other than tunnel niche or
clearing bay.
[[Page 37881]]
214.318--Procedures established 722 Railroads...... 722 rules/ 3 hours............ 2,166
by Railroads for workers to procedures.
perform duties incidental to
those of inspecting, testing,
servicing, or repairing rolling
equipment (New Requirement).
214.319(b)(1)--New Requirements-- 47 Railroads....... 47 On-track program 40 hours + 16 hours 1,568
Class I & II Railroads evaluations.
evaluation of its on-track
safety program and
identification of appropriate
method to provide redundant
protections for roadway work
groups.
(b)(2)--Implementing 47 Railroads....... 77,394 safety 4 minutes.......... 5,160
redundant protections-- briefings.
safety briefings.
(c) Railroad written request 47 Railroads....... 5 written requests. 60 minutes......... 5
to FRA requesting exemption
from requirements of section
214.319(b) for each segment
of track governed by
Positive Train Control.
214.320--Roadway Maintenance 722 Railroads...... 5 requests......... 4 hours............ 20
Machines Movement over
Signalized Non-controlled Track--
RR request to FRA for equivalent
level of protection to that of
Working Limits(New Requirement).
214.322--New Requirements) 3 Class I Railroads 500 written 10 minutes......... 83
Exclusive Track Occupancy, authorities.
Electronic Display--Written
Authorities/Printed Authority
Copy If Electronic Display Fails
or Malfunctions.
--On-Track Safety Briefings 722 Railroads...... 100 briefings...... 6 minutes.......... 10
in Event Written Authority/
Printed Authority Copy
Cannot Be Obtained.
--Data File Records Relating 3 Class I Railroads 25 data file 2 hours............ 50
to Electronic Display Device records.
Involved in Part 225
Reportable Accident/Incident.
--Request to FRA for NIST 722 Railroads...... 3 requests + 3 30 minutes + 2 2
Publication 800-63-2, copies. minutes.
``Electronic Authentication
Guideline''.
214.325--Train Coordination 50,000 Roadway 36,500 verbal 15 seconds......... 152
(Revised Requirement)--Working Workers. messages.
Limits Established on Controlled
Track through Train
Coordination: Verbal
communication by roadway worker
establishing working limits.
214.327--Inaccessible Track-- 10 Railroads....... 9,125 talks/ 10 minutes......... 1,521
Working Limits Established by messages.
Locomotive With/Without Cars to
Prevent Access--Communication by
RWIC with Locomotive Crew Member
(New Requirement).
--Notification to Train or 10 Railroads....... 1,750 notices...... 60 minutes......... 1,750
Engine Crew on Any Working
Limits in Effect That
Prohibit Train Movement
until RWIC gives permission
to enter Working Limits (New
Requirement).
--Working Limits on Non- 722 Railroads...... 50,000 10 minutes......... 8,333
controlled Track: notifications.
Notifications.
214.329--Train Approach Warning 722 Railroads...... 795,000 non- yard 30 seconds + 10 6,846
Provided by Watchmen/Lookouts-- messages + 79,500 seconds.
Communications. yard messages.
--Written Designation of 722 Railroads...... 26,250 designations 30 seconds......... 219
Watchmen/Lookouts.
214.336--Procedures for Adjacent- 100 Railroads...... 10,000 notices..... 15 seconds......... 42
Track Movements Over 25 mph--
Notifications/Watchmen/Lookout
Warnings.
--Roadway Worker 100 Railroads...... 3,000 talks........ 1 minute........... 50
Communication with Train
Engineers or Equipment
Operators.
--Procedures for Adjacent- 100 Railroads...... 3,000 notices...... 15 seconds......... 13
Track Movements 25 mph or
less--Notifications/Watchmen/
Lookout Warnings.
--Roadway Worker 100 Railroads...... 1,500 talks........ 1 minute........... 25
Communication with Train
Engineers or Equipment
Operators.
--Exceptions to the 100 Railroads...... 2,403,450 briefings 15 seconds......... 10,014
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 Briefings.
214.337--On-Track Safety 722 Railroads...... 2,080,000 30 seconds......... 17,333
Procedures for Lone Workers: statements.
Statements by Lone Workers.
[[Page 37882]]
--Statement of On-Track 722 Railroads...... 200 statements..... 30 seconds......... 2
Safety Using Individual
Train Detection on Track
Outside Manual Interlocking,
a Controlled Point, or a
Remotely Controlled Hump
Yard Facility.
214.339--Audible Warning from 44 Railroads....... 44 written 13 hours........... 572
Trains (Revised Requirement)-- procedures.
Written Procedures That
Prescribe Effective Requirements
for Audible Warning by Horn and/
or Bell for Trains.
214.343/345/347/349/351/353/355-- 50,000 Rdwy Workers 50,000 tr. RW...... 4.5 hours.......... 225,000
Annual Training for All Roadway
Workers (RWs) (New/Revised
Requirements).
--Training of Trainmen 810 RR Workers..... 810 trained workers 2 hours............ 1,620
(Conductors & Brakemen) to
Act as RWIC and Training of
Station Platform Work
Coordinators (New
Requirement).
--Additional adjacent on- 35,000 Rdwy Workers 35,000 tr. RW...... 5 minutes.......... 2,917
track safety training for
Roadway Workers.
--Records of Training........ 50,000 Roadway 50,000 records..... 2 minutes.......... 1,667
Workers.
214.503--Good Faith Challenges; 50,000 Rdwy Workers 125 notices........ 10 minutes......... 21
Procedures for Notification and
Resolution--Notifications for
Non-Compliant Roadway
Maintenance Machines or Unsafe
Condition.
--Resolution Procedures...... 644 Railroads/200 10 procedures...... 2 hours............ 20
contractors.
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.
214.507--A-Built Light Weight on 644 Railroads/200 1,000 stickers/ 5 minutes.......... 83
New Roadway Maintenance Machines. contractors. stencils.
214.511--Required Audible Warning 644 Railroads/200 3,700 identified 5 minutes.......... 308
Devices For New On-Track Roadway contractors. mechanisms.
Maintenance Machines.
214.513--Retrofitting of Existing
On-Track Roadway Maintenance
Machines.
--Identification of 703 Railroads/200 200 I.D. mechanisms 5 minutes.......... 17
Triggering Mechanism--Horns. contractors.
214.515--Overhead Covers For 644 Railroads/200 500 requests + 500 10 minutes; 20 250
Existing On-Track Roadway contractors. responses. minutes.
Maintenance Machines.
214.517--Retrofitting of Existing 644 Railroads/200 500 stencils/ 5 minutes.......... 42
On-Track Roadway Maintenance contractors. displays.
Machines Manufactured On or
After Jan. 1, 1991.
214.518--Safe and Secure Position 644 Railroads/200 1,000 stencils..... 5 minutes.......... 83
for riders. contractors.
--Positions identified by
stencilings/markings/notices.
214.523--Hi-Rail Vehicles........ 644 Railroads/200 2,000 records...... 60 minutes......... 2,000
contractors.
--Non-Complying Conditions... 644 Railroads/200 500 tags + 500 10 minutes + 15 208
contractors. reports. minutes.
214.527--Inspection for 644 Railroads/200 550 tags + 550 5 minutes + 15 184
Compliance; Repair Schedules. contractors. reports. minutes.
214.533--Schedule of Repairs; 644 Railroads/200 250 records........ 15 minutes......... 63
Subject to Availability of Parts. contractors.
----------------------------------------------------------------------------------------------------------------
All estimates include the time to review instructions; search
existing data sources; gather or maintain the needed data; and review
the information. For information or a copy of the paperwork package
submitted to OMB, contact Mr. Robert Brogan, FRA Office of Safety,
Information Clearance Officer, at 202-493-6292, or Ms. Kim Toone, FRA
Office of Information Technology, Information Clearance Officer, at
202-493-6132.
OMB must make a decision concerning the collection of information
requirements 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 will obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action before the effective date of the final rule. The
OMB control number, when assigned, will be
[[Page 37883]]
announced by separate notice in the Federal Register.
D. Federalism Implications
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
This final rule has been analyzed consistent with the principles
and criteria in Executive Order 13132. This final rule would not have a
substantial effect on the States or their political subdivisions; it
would not impose any compliance costs; and it would not affect the
relationships between the Federal government and the States or their
political subdivisions, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
However, this final rule could have preemptive effect by operation
of law under certain provisions of the Federal railroad safety
statutes, specifically the former Federal Railroad Safety Act of 1970,
repealed and recodified at 49 U.S.C. 20106. Section 20106 provides that
States may not adopt or continue in effect any law, regulation, or
order related to railroad safety or security that covers the subject
matter of a regulation prescribed or order issued by the Secretary of
Transportation (with respect to railroad safety matters) or the
Secretary of Homeland Security (with respect to railroad security
matters), except when the State law, regulation, or order qualifies
under the ``essentially local safety or security hazard'' exception to
section 20106.
In sum, FRA has analyzed this final rule consistent with the
principles and criteria in Executive Order 13132. As explained above,
FRA has determined that this final rule has no federalism implications,
other than the possible preemption of State laws under Federal railroad
safety statutes, specifically 49 U.S.C. 20106. Accordingly, FRA has
determined preparation of a federalism summary impact statement for
this final rule is not required.
E. Environmental Impact
FRA has evaluated this final rule under the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other environmental
statutes, related regulatory requirements, and its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999). FRA has determined this final rule is categorically
excluded from detailed environmental review under section 4(c)(20) of
FRA's Procedures, ``Promulgation of railroad safety rules and policy
statements that do not result in significantly increased emissions of
air or water pollutants or noise or increased traffic congestion in any
mode of transportation.'' See 64 FR 28547. Categorical exclusions (CEs)
are actions identified in an agency's NEPA implementing procedures that
do not normally have a significant impact on the environment and, thus,
do not require either an environmental assessment (EA) or environmental
impact statement (EIS). See 40 CFR 1508.4.
In analyzing the applicability of a CE, the agency must also
consider whether extraordinary circumstances are present that would
warrant a more detailed environmental review through the preparation of
an EA or EIS. Id. Under section 4(c) and (e) of FRA's Procedures, FRA
has further concluded no extraordinary circumstances exist with respect
to this regulation that might trigger the need for a more detailed
environmental review. The purpose of this rulemaking is to finalize a
number of railroad worker safety practices developed by the RSAC, some
required by the FAST Act, and additional rules to decrease railroad
worker accidents and injuries. FRA does not anticipate any
environmental impacts from these requirements and finds that there are
no extraordinary circumstances present in connection with this final
rule.
F. Executive Order 12898 (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534, May 10, 2012) require DOT agencies to
achieve environmental justice as part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects, including interrelated social
and economic effects, of their programs, policies, and activities on
minority populations and low-income populations. The DOT Order
instructs DOT agencies to address compliance with Executive Order 12898
and requirements within the DOT Order in rulemaking activities, as
appropriate. FRA evaluated this final rule under Executive Order 12898
and the DOT Order and has determined it would not cause
disproportionately high and adverse human health and environmental
effects on minority or low-income populations.
G. Executive Order 13175 (Tribal Consultation)
FRA evaluated this final rule under the principles and criteria in
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, dated November 6, 2000. The final rule would not have a
substantial direct effect on one or more Indian tribes, would not
impose substantial direct compliance costs on Indian tribal
governments, and would not preempt tribal laws. Therefore, the funding
and consultation requirements of Executive Order 13175 do not apply,
and a tribal summary impact statement is not required.
H. Unfunded Mandates Reform Act of 1995
Under Section 201 of the Unfunded Mandates Reform Act of 1995
(Public Law 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
before 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 (adjusted annually for inflation) in any 1
[[Page 37884]]
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. This final rule will not result in the expenditure, in
the aggregate, of $155,000,000 or more (adjusted annually for
inflation) in any one year. Thus, preparation of such a statement is
not required.
I. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 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 evaluated this final rule consistent with Executive Order
13211. FRA has determined this final rule is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy, and, thus, is not a ``significant energy action'' under
Executive Order 13211.
J. Trade Impact
The Trade Agreements Act of 1979 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 its
requirements are consistent with the Trade Agreements Act. The
requirements imposed are safety standards, which, as noted, are not
considered unnecessary obstacles to trade.
K. Privacy Act
Interested parties should be aware that anyone can search the
electronic form of all written comments received into any agency docket
by the name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register (65 FR 19477-19478, Apr. 11, 2000) or you may
visit http://www.dot.gov/privacy.html.
L. Analysis Under 1 CFR Part 51
As 1 CFR 51.5 requires, FRA has summarized the standard
incorporated by reference and shown its reasonable availability in the
Section-by-Section analysis above.
List of Subjects in 49 CFR Part 214
Bridges, Incorporation by reference, Occupational safety and
health, Penalties, Railroad safety, Reporting and recordkeeping
requirements.
The Rule
For the reasons discussed in the preamble, 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 1.89.
Subpart A--General
0
2. Amend Sec. 214.7 as follows:
0
a. Add the definitions, in alphabetical order, for ``controlled
point'', ``interlocking, manual'', ``maximum authorized speed'', ``on-
track safety manual'', ``roadway worker in charge'';
0
b. Revise the definitions for ``effective securing device'' and
``watchman/lookout''.
The additions and revisions read as follows:
Sec. 214.7 Definitions.
* * * * *
Controlled point means a location where signals and/or other
functions of a traffic control system are controlled from the control
machine.
* * * * *
Effective securing device means a vandal and tamper resistant lock,
keyed for application and removal only by the roadway worker(s) for
whom the protection is provided. In the absence of a lock, it is
acceptable to use a spike driven firmly into a switch tie or a switch
point clamp to prevent the use of a manually operated switch. It is
also acceptable to use portable derails secured with specifically
designed metal wedges. Securing devices without a specially keyed lock
shall be designed in such a manner that they require railroad track
tools for installation and removal and the operating rules of the
railroad must prohibit removal by employees other than the class,
craft, or group of employees for whom the protection is being provided.
Regardless of the type of securing device, the throwing handle or hasp
of the switch or derail shall be uniquely tagged. If there is no
throwing handle, the securing device shall be tagged.
* * * * *
Interlocking, manual means an arrangement of signals and signal
appliances operated from an interlocking machine and so interconnected
by means of mechanical and/or electric locking that their movements
must succeed each other in proper sequence, train movements over all
routes being governed by signal indication.
* * * * *
Maximum authorized speed means the highest speed permitted for the
movement of trains permanently established by timetable/special
instructions, general order, or track bulletin.
* * * * *
On-track safety manual means the entire set of on-track safety
rules and instructions maintained together in one manual designed to
prevent roadway workers from being struck by trains or other on-track
equipment. These instructions include operating rules and other
procedures concerning on-track safety protection and on-track safety
measures.
* * * * *
Roadway worker in charge means a roadway worker who is qualified
under Sec. 214.353 to establish on-track safety for roadway work
groups, and lone workers qualified under Sec. 214.347 to establish on-
track safety for themselves.
* * * * *
Watchman/lookout means an employee who has been trained and
qualified to provide warning to roadway workers of approaching trains
or on-track equipment. Watchmen/lookouts shall be properly equipped to
provide visual and auditory warning such as whistle, air horn, white
disk, red flag, lantern, fuse. A watchman/lookout's sole duty is to
look out for approaching trains/on-track equipment and provide at least
fifteen seconds advanced warning to employees before arrival of trains/
on-track equipment.
* * * * *
[[Page 37885]]
0
3. Revise Sec. 214.113(b) to read as follows:
Sec. 214.113 Head protection.
* * * * *
(b) Helmets required by this section shall conform to the
requirements of 29 CFR 1910.135(b), as established by the U.S.
Department of Labor, Occupational Safety and Health Administration.
0
4. Revise Sec. 214.115(b) to read as follows:
Sec. 214.115 Foot protection.
* * * * *
(b) Foot protection equipment required by this section shall
conform to the requirements of 29 CFR 1910.136(b), as established by
the U.S. Department of Labor, Occupational Safety and Health
Administration.
0
5. Revise Sec. 214.117(b) to read as follows:
Sec. 214.117 Eye and face protection.
* * * * *
(b) Eye and face protection equipment required by this section
shall conform to the requirements of 29 CFR 1910.133(b), as established
by the U.S. Department of Labor, Occupational Safety and Health
Administration.
* * * * *
Subpart C--Roadway Worker Protection
0
6. Revise Sec. 214.301(c) to read as follows:
Sec. 214.301 Purpose and scope.
* * * * *
(c) This subpart prescribes safety standards related to the
movement of roadway maintenance machines where such movements affect
the safety of roadway workers. Except as provided for in Sec. 214.320,
this subpart does not otherwise affect movements of roadway maintenance
machines that are conducted under the authority of a train dispatcher,
a control operator, or the operating rules of the railroad.
Sec. 214.302 [Removed and Reserved]
0
7. Remove and reserve Sec. 214.302.
Sec. 214.305 [Removed and Reserved]
0
8. Remove and reserve Sec. 214.305.
0
9. Revise Sec. 214.307 to read as follows:
Sec. 214.307 On-track safety programs.
(a) Each railroad subject to this part shall maintain and have in
effect an on-track safety program which complies with the requirements
of this subpart. New railroads must have an on-track safety program in
effect by the date on which operations commence. The on-track safety
program shall be retained at a railroad's system headquarters and
division headquarters, and shall be made available to representatives
of the FRA for inspection and copying during normal business hours.
Each railroad to which this part applies is authorized to retain its
program by electronic recordkeeping in accordance with Sec. Sec.
217.9(g) and 217.11(c) of this chapter.
(b) Each railroad shall notify, in writing, the Associate
Administrator for Safety and Chief Safety Officer, Federal Railroad
Administration, RRS-15, 1200 New Jersey Avenue SE., Washington, DC
20590, not less than one month before its on-track safety program
becomes effective. The notification shall include the effective date of
the program and the name, title, address and telephone number of the
primary person to be contacted with regard to review of the program.
This notification procedure shall also apply to subsequent changes to a
railroad's on-track safety program.
(c) Upon review of a railroad's on-track safety program, the FRA
Associate Administrator for Railroad Safety and Chief Safety Officer
may, for cause stated, may disapprove the program. Notification of such
disapproval shall be made in writing and specify the basis for the
disapproval decision. If the Associate Administrator for Railroad
Safety and Chief Safety Officer disapproves the program:
(1) The railroad has 35 days from the date of the written
notification of such disapproval to:
(i) Amend its program and submit it to the Associate Administrator
for Railroad Safety and Chief Safety Officer for approval; or
(ii) Provide a written response in support of its program to the
Associate Administrator for Railroad Safety and Chief Safety Officer.
(2) FRA's Associate Administrator for Railroad Safety and Chief
Safety Officer will subsequently issue a written decision either
approving or disapproving the railroad's program.
(3) Failure to submit to FRA an amended program or provide a
written response in accordance with this paragraph will be considered a
failure to implement an on-track safety program under this subpart.
0
10. Revise Sec. 214.309 to read as follows:
Sec. 214.309 On-track safety manual.
(a) The applicable on-track safety manual (as defined by Sec.
214.7) shall be readily available to all roadway workers. Each roadway
worker in charge responsible for the on-track safety of others, and
each lone worker, shall be provided with and shall maintain a copy of
the on-track safety manual.
(b) When it is impracticable for the on-track safety manual to be
readily available to a lone worker, the employer shall establish
provisions for such worker to have alternative access to the
information in the manual.
(c) Changes to the on-track safety manual may be temporarily
published in bulletins or notices. Such publications shall be retained
along with the on-track safety manual until fully incorporated into the
manual.
0
11. In Sec. 214.315, revise paragraphs (a)(3), (a)(4), (b), the first
sentence of paragraphs (c) through (e) and add paragraph (a)(5) to read
as follows:
Sec. 214.315 Supervision and communication.
(a) * * *
(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;
(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; and
(5) Information on the accessibility of the roadway worker in
charge and alternative procedures in the event the roadway worker in
charge is no longer accessible to the members of the roadway work
group.
(b) A job briefing for on-track safety shall be deemed complete
only after the roadway worker(s) has acknowledged understanding of the
on-track safety procedures and instructions presented.
(c) Every roadway work group whose duties require fouling a track
shall have one roadway worker in charge designated by the employer to
provide on-track safety for all members of the group. * * *
(d) Before any member of a roadway work group fouls a track, the
roadway worker in charge designated under paragraph (c) of this section
shall inform each roadway worker of the on-track safety procedures to
be used and followed during the performance of the work at that time
and location. * * *
(e) Each lone worker shall communicate at the beginning of each
duty period with a supervisor or another designated employee to receive
an on-track safety job briefing and to advise of his or her planned
itinerary and the procedures that he or she intends to use for on-track
safety. * * *
0
12. Revise Sec. 214.317 to read as follows:
[[Page 37886]]
Sec. 214.317 On-track safety procedures, generally.
(a) Each employer subject to the provisions of this part shall
provide on-track safety for roadway workers by adopting a program that
contains specific rules for protecting roadway workers that comply with
the provisions of Sec. Sec. 214.319 through 214.337.
(b) Roadway workers may walk across any track provided that they
can safely be across and clear of the track before a train or other on-
track equipment would arrive at the crossing point under the following
circumstances:
(1) Employers shall adopt, and roadway workers shall comply with,
applicable railroad safety rules governing how to determine that it is
safe to cross the track before starting across;
(2) Roadway workers shall move directly and promptly across the
track; and
(3) On-track safety protection is in place for all roadway workers
who are actually engaged in work, including inspection, construction,
maintenance or repair, and extending to carrying tools or material that
restricts motion, impairs sight or hearing, or prevents an employee
from detecting and moving rapidly away from an approaching train or
other on-track equipment.
(c) On non-controlled track, on-track roadway maintenance machines
engaged in weed spraying or snow removal may proceed under the
provisions of Sec. 214.301(c), under the following conditions:
(1) Each railroad shall establish and comply with an operating
procedure for on-track snow removal and weed spray equipment to ensure
that:
(i) All on-track movements in the affected area are informed of
such operations;
(ii) All on-track movements shall operate at restricted speed as
defined in Sec. 214.7, except on other than yard tracks and yard
switching leads, where all on-track movements shall operate prepared to
stop within one-half the range of vision but not exceeding 25 mph;
(iii) A means for communication between the on-track equipment and
other on-track movements is provided; and
(iv) Remotely controlled hump yard facility operations are not in
effect, and kicking of cars is prohibited unless agreed to by the
roadway worker in charge.
(2) Roadway workers engaged in such snow removal or weed spraying
operations subject to this section shall retain an absolute right to
use the provisions of Sec. 214.327 (inaccessible track).
(3) Roadway workers assigned to work with this equipment may line
switches (or derails operated via a switch stand) for the machine's
movement but shall not engage in any roadway work activity unless
protected by another form of on-track safety.
(4) Each roadway maintenance machine engaged in snow removal or
weed spraying under this provision shall be equipped with and utilize:
(i) An operative 360-degree intermittent warning light or beacon;
(ii) Work lights, if the machine is operated during the period
between one-half hour after sunset and one-half hour before sunrise or
in dark areas such as tunnels, unless equivalent lighting is otherwise
provided;
(iii) An illumination device, such as a headlight, capable of
illuminating obstructions on the track ahead in the direction of travel
for a distance of 300 feet under normal weather and atmospheric
conditions;
(iv) A brake light activated by the application of the machine
braking system, and designed to be visible for a distance of 300 feet
under normal weather and atmospheric conditions; and
(v) A rearward viewing device, such as a rearview mirror.
(d) Tunnel niches or clearing bays in existence prior to April 1,
2017 that are designed to permit roadway workers to occupy a place of
safety when trains or other on-track equipment pass the niche or
clearing bay, but are less than four feet from the field side of the
nearest rail, may continue to be used as a place of safety provided:
(1) Such niches or clearing bays are visually inspected by the
roadway worker in charge or lone worker prior to making the
determination that the niche or clearing bay is suitable for use as a
place of safety;
(2) There is adequate sight distance to permit a roadway worker or
lone worker to occupy the place of safety in the niche or clearing bay
at least 15 seconds prior to the arrival of a train or other on-track
equipment at the work location in accordance with Sec. Sec. 214.329
and 214.337; and
(3) The roadway worker in charge or lone worker shall have the
absolute right to designate a place of safety as a location other than
that of a tunnel niche or clearing bay described by this paragraph (d),
or to establish working limits.
0
13. Add Sec. 214.318 to read as follows:
Sec. 214.318 Locomotive servicing and car shop repair track areas.
(a) In lieu of the requirements of this subpart, workers (as
defined by Sec. 218.5 of this chapter) within the limits of locomotive
servicing and car shop repair track areas (as both are defined by Sec.
218.5 of this chapter) may utilize procedures established by a railroad
in accordance with part 218, subpart B, of this chapter (Blue Signal
Protection) to perform duties incidental to inspecting, testing,
servicing, or repairing rolling equipment when those incidental duties
involve fouling a track that is protected by Blue Signal Protection. A
railroad utilizing Blue Signal Protection in lieu of the requirements
of this subpart must have rules in effect governing the applicability
of those protections to the incidental duties being performed.
(b) Paragraph (a) of this section applies to employees of a
contractor to a railroad if such incidental duties are performed under
the supervision of a railroad employee qualified (as defined by Sec.
217.4 of this chapter) on the railroad's rules and procedures
implementing the Blue Signal Protection requirements.
(c) Any work performed within the limits of a locomotive servicing
or car shop repair track area with the potential of fouling a track
which requires a person qualified under Sec. 213.7 of this chapter to
be present to inspect or supervise such work must be performed in
accordance with the requirements of this subpart.
0
14. Revise Sec. 214.319 to read as follows:
Sec. 214.319 Working limits, generally.
Working limits established on controlled track shall conform to the
provisions of Sec. 214.321 Exclusive track occupancy, Sec. 214.323
Foul time, or Sec. 214.325 Train coordination. Working limits
established on non-controlled track shall conform to the provision of
Sec. 214.327 Inaccessible track.
(a) Working limits established under any procedure shall, in
addition, conform to the following provisions:
(1) Only a roadway worker in charge who is qualified in accordance
with Sec. 214.353 shall establish or have control over working limits
for the purpose of establishing on-track safety.
(2) Only one roadway worker in charge who is qualified in
accordance with Sec. 214.353 shall have control over working limits on
any one segment of track.
(3) All affected roadway workers shall be notified before working
limits are released for the operation of trains. Working limits shall
not be released until all affected roadway workers have either left the
track or have been afforded on-track safety through train approach
warning in accordance with Sec. 214.329.
[[Page 37887]]
(b) Each Class I or Class II railroad or each railroad providing
regularly scheduled intercity or commuter rail passenger transportation
that utilizes controlled track working limits as a form of on-track
safety (under Sec. Sec. 214.321 through 214.323) in signalized
territory shall:
(1) By July 1, 2017, evaluate its on-track safety program and
identify an appropriate method(s) of providing redundant signal
protections for roadway work groups who depend on a train dispatcher or
control operator to provide signal protection in establishing
controlled track working limits. For purposes of this section,
redundant signal protections means risk mitigation measures or safety
redundancies adopted to ensure the proper establishment and maintenance
of signal protections for controlled track working limits until such
working limits are released by the roadway worker in charge.
Appropriate redundant protections could include the use of various risk
mitigation measures (or a combination of risk mitigation measures) such
as technology, training, supervision, or operating-based procedures; or
could include use of redundant signal protection, such as shunting,
designed to prevent signal system-related incursions into established
controlled track working limits; and
(2) By January 1, 2018, specifically identify, implement, and
comply with the method(s) of providing redundant protections in its on-
track safety program.
(c) Upon a railroad's request, FRA will consider an exemption from
the requirements of paragraph (b) of this section for each segment of
track(s) for which operations are governed by a positive train control
system under part 236, subpart I, of this chapter. A request for
approval to exempt a segment of track must be submitted in writing to
the FRA Associate Administrator for Railroad Safety and Chief Safety
Officer. The FRA Associate Administrator for Railroad Safety and Chief
Safety Officer will review a railroad's submission and will notify a
railroad of its approval or disapproval in writing within 90 days of
FRA's receipt of a railroad's written request, and shall specify the
basis for any disapproval decision.
0
15. Add Sec. 214.320 to read as follows:
Sec. 214.320 Roadway maintenance machine movements over signalized
non-controlled track.
Working limits must be established for roadway maintenance machine
movements on non-controlled track equipped with automatic block signal
systems over which trains are permitted to exceed restricted speed (for
purposes of this section, on-track movements prepared to stop within
on-half the range of vision but not exceeding 25 mph). This section
applies unless the railroad's operating rules protect the movements of
roadway maintenance machines in a manner equivalent to that provided
for by limiting all train and locomotive movements to restricted speed,
and such equivalent level of protection is first approved in writing by
FRA's Associate Administrator for Railroad Safety and Chief Safety
Officer.
0
16. In Sec. 214.321, revise paragraphs (a) introductory text, (b)
introductory text, (b)(2), and (d) and add paragraphs (b)(4) and (e) to
read as follows:
Sec. 214.321 Exclusive track occupancy.
* * * * *
(a) The track within working limits shall be placed under the
control of one roadway worker in charge by either:
* * * * *
(b) An authority for exclusive track occupancy given to the roadway
worker in charge of the working limits shall be transmitted on a
written or printed document directly, by relay through a designated
employee, in a data transmission, or by oral communication, to the
roadway worker in charge by the train dispatcher or control operator in
charge of the track.
* * * * *
(2) The roadway worker in charge of the working limits shall
maintain possession of the written or printed authority for exclusive
track occupancy while the authority for the working limits is in
effect. A data transmission of an authority displayed on an electronic
screen may be used as a substitute for a written or printed document
required under this paragraph. Electronic displays of authority shall
comply with the requirements of Sec. 214.322.
* * * * *
(4) An authority shall specify a unique roadway work group number,
an employee name, or a unique identifier. A railroad shall adopt
procedures that require precise communication between trains and other
on-track equipment and the roadway worker in charge or lone worker
controlling the working limits in accordance with Sec. 214.319. The
procedures may permit communications to be made directly between a
train or other on-track equipment and a roadway worker in charge or
lone worker, or through a train dispatcher or control operator.
* * * * *
(d) Movements of trains and roadway maintenance machines within
working limits established through exclusive track occupancy shall be
made only under the direction of the roadway worker in charge of the
working limits. Such movements shall be at restricted speed unless a
higher authorized speed has been specifically authorized by the roadway
worker in charge of the working limits.
(e) Working limits established by exclusive track occupancy
authority may occur behind designated trains moving through the same
limits in accordance with the following provisions:
(1) The authority establishing working limits will only be
considered to be in effect after it is confirmed by the roadway worker
in charge or lone worker that the affected train(s) have passed the
point to be occupied or fouled by:
(i) Visually identifying the affected trains(s); or
(ii) Direct radio contact with a crew member of the affected
train(s); or
(iii) Receiving information about the affected train from the train
dispatcher or control operator.
(2) When utilizing the provisions of paragraph (e)(1)(i) of this
section, a railroad's operating rules shall include procedures
prohibiting the affected train(s) from making a reverse movement into
or within the limits being fouled or occupied.
(3) After the roadway worker in charge or lone worker has confirmed
that the affected trains(s) have passed the point to be occupied or
fouled, the roadway worker in charge shall record on the authority the
time of passage and engine number(s) of the affected trains(s). If the
confirmation is by direct communication with the train(s), or through
confirmation by the train dispatcher or control operator, the roadway
worker in charge shall record the time of such confirmation and the
engine number(s) of the affected trains on the authority.
(4) A separate roadway work group afforded on-track safety by the
roadway worker in charge of authority limits, and that is located away
from the roadway worker in charge of authority limits, shall:
(i) Occupy or foul the track only after receiving permission from
the roadway worker in charge to occupy the working limits after the
roadway worker charge has fulfilled the provisions of paragraph (e)(1)
of this section; and
(ii) Be accompanied by an employee qualified to the level of a
roadway worker in charge who shall also have a copy of the authority
and who shall
[[Page 37888]]
independently execute the required communication requirements of
paragraphs (e)(1) and (3) of this section.
(5) Any subsequent train or on-track equipment movements within
working limits after the passage of the affected train(s) shall be
governed by paragraph (d) of this section.
0
17. Add Sec. 214.322 to read as follows:
Sec. 214.322 Exclusive track occupancy, electronic display.
(a) While it is in effect, all the contents of an authority
electronically displayed shall be readily viewable by the roadway
worker in charge that is using the authority to provide on-track safety
for a roadway work group.
(b) If the electronic display device malfunctions, fails, or cannot
display an authority while it is in effect, the roadway worker in
charge shall either obtain a written or printed copy of the authority
in accordance with Sec. 214.321 (except that on-track roadway
maintenance machine and hi-rail movements must stop) or establish
another form of on-track safety without delay. In the event that a
written or printed copy of the authority cannot be obtained or another
form of on-track safety cannot be established after failure of an
electronic display device, the roadway worker in charge shall instruct
all roadway workers to stop work and occupy a place of safety and
conduct an on-track safety job briefing to determine the safe course of
action with the roadway work group.
(c) All authorized users of an electronic display system shall be
uniquely identified to support individual accountability. A user may be
a person, a process, or some other system that accesses or attempts to
access an electronic display system to perform tasks or process an
authority.
(d) All authorized users of an electronic display system must be
authenticated prior to being granted access to such system. The system
shall ensure the confidentiality and integrity of all internally stored
authentication data and protect it from access by unauthorized users.
The authentication scheme shall utilize algorithms approved by the
National Institute of Standards and Technology (NIST), or any similarly
recognized and FRA approved standards body.
(e) The integrity of all data must be ensured during transmission/
reception, processing, and storage. All new electronic display systems
implemented on or after July 1, 2017 shall utilize a Message
Authentication Code (MAC) to ensure that all data is error free. The
MAC shall utilize algorithms approved by NIST, or any similarly
recognized and FRA approved standards body. Systems implemented prior
to July 1, 2017 may utilize a Cyclical Redundancy Code (CRC) to ensure
that all data is error free provided:
(1) The collision rate for the CRC check utilized shall be less
than or equal to 1 in 2\32\. Systems implemented prior to July 1, 2017
that do not utilize a CRC with a collision rate less than or equal to 1
in 2\32\ must be retired or updated to utilize a MAC no later than July
1, 2018.
(2) MAC and CRC checks shall only be used to verify the accuracy of
an electronic authority data message and shall not be used in an error
correction reconstruction of the data. An authority must fail if the
MAC or CRC checks do not match.
(f) Authorities transmitted to each electronic display device shall
be retained in the device's non-volatile memory for not less than 72
hours.
(g) If any electronic display device used to obtain an authority is
involved in an accident/incident that is required to be reported to FRA
under part 225 of this chapter, the railroad or employer that was using
the device at the time of the accident shall, to the extent possible,
and to the extent consistent with the safety of life and property,
preserve the data recorded by each such device for analysis by FRA.
This preservation requirement permits the railroad or employer to
extract and analyze such data, provided the original downloaded data
file, or an unanalyzed exact copy of it, shall be retained in secure
custody and shall not be utilized for analysis or any other purpose
except by direction of FRA or the National Transportation Safety Board.
This preservation requirement shall expire one (1) year after the date
of the accident unless FRA or the National Transportation Safety Board
notifies the railroad in writing that the data are desired for
analysis.
(h) New electronic display systems implemented on or after July 1,
2017 shall provide Level 3 assurance as defined by NIST Special
Publication 800-63-2, Electronic Authentication Guideline, ``Computer
Security,'' August 2013. Systems implemented prior to July 1, 2017
shall provide Level 2 assurance. Systems implemented prior to July 1,
2017 that do not provide Level 2 or higher assurance must be retired,
or updated to provide Level 2 assurance, no later than July 1, 2018.
The incorporation by reference of this NIST Special Publication was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the
incorporated document from the National Institute of Standards and
Technology, 100 Bureau Drive, Stop 8930, Gaithersburg, MD 20899-8930,
http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-2.pdf. You may inspect a copy of the document at the Federal Railroad
Administration, Docket Clerk, 1200 New Jersey Avenue SE., Washington,
DC, or at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call (202)
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
0
18. In Sec. 214.323, revise paragraphs (a), (b), and (c) and add
paragraph (d) to read as follows:
Sec. 214.323 Foul time.
* * * * *
(a) Foul time may be given orally or in writing by the train
dispatcher or control operator only after that employee has withheld
the authority of all trains or other on-track equipment to move into or
within the working limits during the foul time period.
(b) Each roadway worker in charge to whom foul time is transmitted
orally shall repeat the track number or identifier, track limits and
time limits of the foul time to the issuing employee for verification
before the foul time becomes effective.
(c) The train dispatcher or control operator shall not permit the
movement of trains or other on-track equipment into working limits
protected by foul time until the roadway worker in charge who obtained
the foul time has reported clear of the track.
(d) The roadway worker in charge shall not permit the movement of
trains or other on-track equipment into or within working limits
protected by foul time.
0
19. In Sec. 214.325, revise the introductory text to read as follows:
Sec. 214.325 Train coordination.
Working limits established on controlled track by a roadway worker
in charge through the use of train coordination shall comply with the
following requirements:
* * * * *
0
20. In Sec. 214.327, add paragraphs (a)(6), (7), and (8) to read as
follows:
Sec. 214.327 Inaccessible track.
(a) * * *
(6) A locomotive with or without cars placed to prevent access to
the working limits at one or more points of entry to the working
limits, provided the following conditions are met:
[[Page 37889]]
(i) The roadway worker in charge who is responsible for
establishing working limits communicates with a member of the crew
assigned to the locomotive and determines that:
(A) The locomotive is visible to the roadway worker in charge that
is establishing the working limits; and
(B) The locomotive is stopped.
(ii) Further movements of the locomotive shall be made only as
permitted by the roadway worker in charge controlling the working
limits;
(iii) The crew of the locomotive shall not leave the locomotive
unattended or go off duty unless communication occurs with the roadway
worker in charge and an alternate means of on-track safety protection
has been established by the roadway worker in charge; and
(iv) Cars coupled to the locomotive on the same end and on the same
track as the roadway workers shall be connected to the train line air
brake system and such system shall be charged with compressed air to
initiate an emergency brake application in case of unintended
uncoupling. Cars coupled to the locomotive on the same track on the
opposite end of the roadway workers shall have sufficient braking
capability to control their movement.
(7) A railroad's procedure governing block register territory that
prevents trains and other on-track equipment from occupying the track
when the territory is under the control of a lone worker or roadway
worker in charge. The roadway worker in charge or lone worker shall
have the absolute right to render block register territory inaccessible
under the other provisions of paragraph (a) of this section.
(8) Railroad operating rules that prohibit train or engine or other
on-track equipment movements on a main track within yard limits or
restricted limits until the train or engine or on-track equipment
receives notification of any working limits in effect and prohibit the
train or engine or on-track equipment from entering working limits
until permission is received by the roadway worker in charge. Such
working limits shall be delineated with stop signs (flags), and where
speeds are in excess of restricted speed and physical characteristics
permit, also with advance signs (flags).
* * * * *
0
21. Amend Sec. 214.329 by revising paragraph (a) to read as follows:
Sec. 214.329 Train approach warning provided by watchmen/lookouts.
* * * * *
(a) Train approach warning shall be given in sufficient time to
enable each roadway worker to move to and occupy a previously arranged
place of safety not less than 15 seconds before a train moving at the
maximum authorized speed on that track can pass the location of the
roadway worker. The place of safety to be occupied upon the approach of
a train may not be on a track, unless working limits are established on
that track.
* * * * *
0
22. In Sec. 214.331, add paragraph (e) to read as follows:
Sec. 214.331 Definite train location.
* * * * *
(e) Each on-track safety program that provides for the use of
definite train location shall discontinue such use by June 12, 2017.
0
23. Revise Sec. 214.333(c) to read as follows:
Sec. 214.333 Informational line-ups of trains.
* * * * *
(c) Each on-track safety program that provides for the use of
informational line-ups shall discontinue such use by June 12, 2017.
0
24. Revise Sec. 214.335 to read as follows:
Sec. 214.335 On-track safety procedures for roadway work groups,
general.
(a) No employer subject to the provisions of this part shall
require or permit a roadway worker who is a member of a roadway work
group to foul a track unless on-track safety is provided by either
working limits, train approach warning, or definite train location in
accordance with the applicable provisions of Sec. 214.319, Sec.
214.321, Sec. 214.323, Sec. 214.325, Sec. 214.327, Sec. 214.329,
Sec. 214.331, or Sec. 214.336.
(b) No roadway worker who is a member of a roadway work group shall
foul a track without having been informed by the roadway worker in
charge of the roadway work group that on-track safety is provided.
0
25. In Sec. 214.337, revise paragraph (c)(3) and add paragraph (g) to
read as follows:
Sec. 214.337 On-track safety procedures for lone workers.
* * * * *
(c) * * *
(3) On track outside the limits of a manual interlocking, a
controlled point (except those consisting of signals only), or a
remotely controlled hump yard facility;
* * * * *
(g) Individual train detection shall not be used to provide on-
track safety for a lone worker using a roadway maintenance machine,
equipment, or material that cannot be readily removed by hand.
0
26. Revise Sec. 214.339 to read as follows:
Sec. 214.339 Audible warning from trains.
(a) Each railroad shall have in effect and comply with written
procedures that prescribe effective requirements for audible warning by
horn and/or bell for trains and locomotives approaching any roadway
workers or roadway maintenance machines that are either on the track on
which the movement is occurring, or about the track if the roadway
workers or roadway maintenance machines are at risk of fouling the
track. At a minimum, such written procedures shall address:
(1) Initial horn warning;
(2) Subsequent warning(s); and
(3) Alternative warnings in areas where sounding the horn adversely
affects roadway workers (e.g., in tunnels and terminals).
(b) Such audible warning shall not substitute for on-track safety
procedures prescribed in this part.
0
27. Revise Sec. 214.343(c) to read as follows:
Sec. 214.343 Training and qualification, general.
* * * * *
(c) Except as provided for in Sec. 214.353, railroad employees
other than roadway workers, who are associated with on-track safety
procedures, and whose primary duties are concerned with the movement
and protection of trains, shall be trained to perform their functions
related to on-track safety through the training and qualification
procedures prescribed by the operating railroad for the primary
position of the employee, including maintenance of records and
frequency of training.
* * * * *
0
28. In Sec. 214.345, revise the introductory text and add paragraph
(f) to read as follows:
Sec. 214.345 Training for all roadway workers.
Consistent with Sec. 214.343(b), the training of all roadway
workers shall include, as a minimum, the following:
* * * * *
(f) Instruction on railroad safety rules adopted to comply with
Sec. 214.317(b).
0
29. In Sec. 214.347, add paragraph (a)(5) and revise paragraph (b) to
read as follows:
Sec. 214.347 Training and qualification for lone workers.
* * * * *
[[Page 37890]]
(a) * * *
(5) Alternative means to access the information in a railroad's on-
track safety manual when a lone worker's duties make it impracticable
for the on-track safety manual to be readily available.
(b) Initial and periodic (as specified by Sec. 243.201 of this
chapter) qualification of a lone worker shall be evidenced by
demonstrated proficiency.
0
30. Revise Sec. 214.349(b) to read as follows:
Sec. 214.349 Training and qualification of watchmen/lookouts.
* * * * *
(b) Initial and periodic (as specified by Sec. 243.201 of this
chapter) qualification of a watchman/lookout shall be evidenced by
demonstrated proficiency.
0
31. Revise Sec. 214.351(b) to read as follows:
Sec. 214.351 Training and qualification of flagmen.
* * * * *
(b) Initial and periodic (as specified by Sec. 243.201 of this
chapter) qualification of a flagman shall be evidenced by demonstrated
proficiency.
0
32. In Sec. 214.353, revise the section heading and paragraphs (a)
introductory text, (a)(1), and (b) and add paragraph (a)(5) to read as
follows:
Sec. 214.353 Training and qualification of each roadway worker in
charge.
(a) The training and qualification of each roadway worker in
charge, or any other employee acting as a roadway worker in charge
(e.g., a conductor or a brakeman), who provides for the on-track safety
of roadway workers through establishment of working limits or the
assignment and supervision of watchmen/lookouts or flagmen shall
include, at a minimum:
(1) All the on-track safety training and qualification required of
the roadway workers to be supervised and protected, including the
railroad's procedures governing good faith challenges in Sec. Sec.
214.311(b) and (c) and 214.313(d).
* * * * *
(5) The procedures required to ensure that the roadway worker in
charge of the on-track safety of group(s) of roadway workers remains
immediately accessible and available to all roadway workers being
protected under the working limits or other provisions of on-track
safety established by the roadway worker in charge.
(b) Initial and periodic (as specified by Sec. 243.201 of this
chapter) qualification of a roadway worker in charge shall be evidenced
by demonstrated proficiency.
0
33. In Sec. 214.355, revise the section heading and paragraph (b) to
read as follows:
Sec. 214.355 Training and qualification of each roadway worker in on-
track safety for operators of roadway maintenance machines.
* * * * *
(b) Initial and periodic (as specified by Sec. 243.201 of this
chapter) qualification of a roadway worker to operate roadway
maintenance machines shall be evidenced by demonstrated proficiency.
0
34. In appendix A to part 214, add footnote number 2 to the table
heading ``Section'' and, under subpart C, revise the entries for
Sec. Sec. 214.303(b), 214.307, 214.309, 214.315(a), 214.317, 214.319,
214.329(a), 214,339, and 214.353 and add entries for Sec. Sec.
214.318, 214.320, 214.321(b)(4) and (e), 214.322, 214.323(c) and (d),
214.331(e), and 214.337(g) to read as follows:
Appendix A to Part 214--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Subpart C--Roadway Worker Protection Rule
------------------------------------------------------------------------
214.303 Railroad on-track safety programs,
generally:
* * * * * * *
(b) Failure of a railroad to include and 5,000 10,000
use internal monitoring procedure........
* * * * * * *
214.307 On-track safety programs:
(a)(i) Failure to adopt On-Track Safety 10,000 13,000
Program..................................
(ii) Failure to provide On-track Safety 1,000 5,000
Program to FRA upon request..............
(b) Failure to notify FRA of adoption or 1,000 5,000
change to On-Track Safety Program........
(c) Failure to amend or provide written 10,000 20,000
response after disapproval of On-track
Safety Program...........................
214.309 On-track safety manual:
(a) On-track Safety Manual not provided to 2,000 5,000
prescribed employees.....................
(b) Failure to establish provision for lone 5,000 10,000
worker to have alternative access to On-track
Safety Manual................................
(c) Failure to maintain entire set of on-track 2,000 5,000
safety rules and instructions, including
updates temporarily published in bulletins or
notices, in one On-Track Safety Manual.......
* * * * * * *
214.315 Supervision and communication:
(a)(1)Complete failure of employer to 5,000 10,000
provide on-track safety job briefing.....
(2)-(5) Partial failure of employer to 2,000 4,000
provide on-track safety job briefing.....
* * * * * * *
214.317 On-track safety procedures, generally:
(a) On-track safety rules conflict with 5,000 10,000
this part................................
(b) Failure to adopt or comply with rules 2,000 5,000
governing safe crossing of track.........
(3) Failure to establish on-track 2,000 5,000
safety if required...................
(c)(1) Failure to adopt or comply with 3,000 5,000
operating procedure if this section is
utilized in lieu of establishing working
limits...................................
(2) Failure to grant absolute right to 3,000 5,000
establish working limits if requested by
RWIC or lone worker......................
[[Page 37891]]
(3) Except as permitted, roadway worker 3,000 5,000
fouling track without on-track safety....
(4) Roadway maintenance machine not 3,000 5,000
properly equipped or utilized............
(d)(1) Failure to inspect tunnel niche or 3,000 5,000
clearing bay.............................
(2) Lack of adequate sight distance....... 3,000 5,000
(3) Failure to grant absolute right to 5,000 10,000
establish other place of safety or to
establish working limits if requested by
RWIC or lone worker......................
214.318 Locomotive servicing and car shop
repair track areas:
(a)-(c)................................... 3,000 5,000
214.319 Working limits, generally:
(a)(1)Non-qualified RWIC of working limits 5,000 10,000
(a)(2) More than one RWIC of working 2,000 5,000
limits on the same track segment.........
(a)(3)(i) Working limits released without 5,000 10,000
notifying all affected roadway workers...
(a)(3)(ii) Working limits released before 5,000 10,000
all affected roadway workers are
otherwise protected......................
(b)(1) Failure to adopt redundant 5,000 10,000
protections in on-track safety program...
(b)(2) Failure to comply with redundant 5,000 10,000
protections identified in on-track safety
program when controlled track working
limits are established...................
214.320 Roadway maintenance machine movements 5,000 7,500
over signalized non-controlled track.........
214.321 Exclusive track occupancy:
* * * * * * *
(b) * * *.................................
(4) (i) Failure to specify unique roadway 3,000 5,000
work group number, employee name, or
unique identifier........................
(ii) Failure to adopt procedure requiring 3,000 5,000
precise communication between RWIC or
lone worker and trains or other on-track
equipment................................
* * * * * * *
(e)(1)-(4) Failure to comply with 5,000 10,000
occupancy behind requirements............
214.322 Exclusive track occupancy, electronic
display:
(a) Contents of authority electronically 3,000 5,000
displayed not readily viewable...........
(b) Failure to timely obtain written/ 3,000 5,000
printed authority or occupy place of
safety if electronic display fails while
authority is in effect...................
(c)-(h)................................... 2,000 4,000
214.323 Foul time:
* * * * * * *
(c) Train dispatcher or control operator 5,000 10,000
permitting movement of trains or other on-
track equipment into working limits prior
to RWIC reporting clear of track.........
(d) RWIC permitting movement of trains or 5,000 10,000
on-track equipment into or within working
limits...................................
* * * * * * *
214.329 Train approach warning provided by
watchmen/lookouts:
(a)(i) Failure to give timely warning of 5,000 10,000
approaching train........................
(ii) Failure to use maximum authorized 3,000 5,000
speed in formulating sight distance......
(iii) Use of another track as a place of 3,000 5,000
safety without establishing working
limits on that track.....................
* * * * * * *
214.331 Definite train location:
* * * * * * *
(e) Failure to discontinue use of definite 9,500 13,000
train location by required date..........
* * * * * * *
214.337 On-track safety procedures for lone
workers:
* * * * * * *
(g) Use of individual train detection 2,000 4,000
while using machine, equipment, or
material that cannot be readily removed
by hand..................................
214.339 Audible warning from trains:
(a)-(b) Failure to adopt or comply with 2,000 4,000
audible warning procedures...............
* * * * * * *
214.353 Training and qualification of roadway 2,000 4,000
workers in charge............................
* * * * * * *
------------------------------------------------------------------------
\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 $105,000 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 deprives the
railroad or contractor of the benefit of the exception and makes the
railroad or contractor, and any responsible individuals, liable for
penalty under the particular regulatory provision(s) from which the
exception would otherwise have granted relief.
[[Page 37892]]
\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 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 May 26, 2016.
Sarah E. Feinberg,
Administrator.
[FR Doc. 2016-13057 Filed 6-6-16; 8:45 am]
BILLING CODE 4910-06-P