96-31533. Roadway Worker Protection

[Federal Register Volume 61, Number 242 (Monday, December 16, 1996)]
[Rules and Regulations]
[Pages 65959-65983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31533]


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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration

49 CFR 214

[FRA Docket No. RSOR 13, Notice No. 9]
RIN 2130-AA86


Roadway Worker Protection

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

ACTION: Final rule.

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Summary: FRA is issuing rules for the protection of railroad employees 
working on or near railroad tracks. This regulation requires that each 
railroad devise and adopt a program of on-track safety to provide 
employees working along the railroad with protection from the hazards 
of being struck by a train or other on-track equipment. Elements of 
this on-track safety program include an on-track safety manual; a clear 
delineation of employers' responsibilities for providing on track 
safety, as well as employees' rights and responsibilities related 
thereto; well defined procedures for communication and protection; and 
annual on-track safety training. The program adopted by each railroad 
would be subject to review and approval by FRA.

Dates: Effective Dates: This rule is effective January 15, 1997.
    Compliance Dates: Each railroad must notify the FRA not less than 
30 days before their respective date for compliance. Each railroad must 
be in compliance with this rule no later than the date specified in the 
following schedule: For each Class I railroad (including National 
Railroad Passenger Corporation) and each railroad providing commuter 
service in a metropolitan or suburban area, March 15, 1997; For each 
Class II railroad, April 15, 1997; For each Class III railroad, 
switching and terminal railroad, and any railroad not otherwise 
classified, May 15, 1997; For each railroad commencing operations after 
the pertinent date specified in this paragraph, the date on which 
operations commence.

FOR FURTHER INFORMATION CONTACT: Gordon A. Davids, P.E., Bridge 
Engineer, Office of Safety, FRA, 400 Seventh Street SW., Washington, DC 
20590 (telephone: [phone]); Phil Olekszyk, Deputy Associate 
Administrator for Safety Compliance and Program Implementation, FRA, 
400 Seventh Street SW., Washington, DC 20590 (telephone: [phone]); 
or Cynthia Walters, Trial Attorney, Office of Chief Counsel, FRA, 400 
Seventh

[[Page 65960]]

Street SW., Washington, DC 20590 (telephone: [phone]).

Supplementary Information:

Introduction

Background

    Concern regarding hazards faced by roadway workers has existed for 
many years. The FRA received a petition to amend its track safety 
standards from the Brotherhood of Maintenance of Way Employees (BMWE) 
in 1990, which included issues pertaining to the hazards faced by 
roadway workers. This proceeding, however, formally originated with the 
Rail Safety Enforcement and Review Act, Public Law No. 102-365, 106 
Stat. 972, enacted September 3, 1992, which required FRA to review its 
track safety standards and revise them based on information derived 
from that review. FRA issued an Advanced Notice of Proposed Rulemaking 
(ANPRM) on November 16, 1992 (57 FR 54038) announcing the opening of a 
proceeding to amend the Federal Track Safety Standards.
    Workshops were held in conjunction with this effort, to solicit the 
views of the railroad industry and representatives of railroad 
employees on the need for substantive change in the track regulations. 
A workshop held on March 31, 1993 in Washington, D.C., specifically 
addressed the protection of employees from the hazards of moving trains 
and equipment. The subject of injury and death to roadway workers was 
of such great concern that FRA received petitions for emergency orders 
and requests for rulemaking from both the Brotherhood of Maintenance-
of-Way Employees and the Brotherhood of Railroad Signalmen. FRA did not 
grant the petitions for emergency orders, but instead initiated a 
separate proceeding to consider regulations to eliminate hazards faced 
by these employees. FRA removed this issue from the track standards 
docket, FRA Docket No. RST-90-1 and established a new docket, FRA 
Docket No. RSOR 13, specifically to address hazards to roadway workers 
to expedite the effective resolution of this issue.
    FRA also determined that standards addressing this issue would be 
more closely related to workplace safety than to standards addressing 
the condition of railroad track. Since Railroad Workplace Safety is 
addressed in 49 CFR Part 214, standards issued for the protection of 
roadway workers would be better categorized in this section, than Part 
213, Track Safety Standards. Accordingly, the minimum standards 
proposed in this notice would amend Part 214 of Title 49, Code of 
Federal Regulations by adding a new subpart, Subpart C, addressing 
hazards to roadway workers.
    FRA convened a Safety Summit Meeting on June 3, 1994 with affected 
railroad industry, contractor, and labor representatives. This meeting 
considered certain aspects of FRA accident data involving roadway 
workers. The meeting also facilitated a discussion of various short-
term and long-term actions that could be taken by FRA and the industry 
to prevent injuries and deaths among roadway workers. One long-range 
alternative suggested by FRA was to use the negotiated rulemaking 
process to allow input from both railroad management and labor to 
develop standards addressing this risk. The agency determined that this 
was an appropriate subject for a negotiated rulemaking, and initiated 
this process.
    FRA published its notice of intent to establish a Federal Advisory 
Committee for regulatory negotiation on August 17, 1994 (59 FR 42200). 
This notice stated the purpose for the Advisory Committee, solicited 
requests for representation on the Advisory Committee, and listed the 
key issues for negotiation. Additionally, the notice summarized the 
concept of negotiated rulemaking including an explanation of consensus 
decision making. The Advisory Committee would be responsible for 
submitting a report, including an NPRM, containing the Committee's 
consensus decisions. If consensus was not reached on certain issues, 
the report would identify those issues and explain the basic 
disagreement. Pursuant to negotiated rulemaking, FRA committed the 
agency to issue a proposed rule as recommended by the committee unless 
it was inconsistent with statutory authority, agency or legal 
requirements, or if in the agency's view the proposal did not 
adequately address the subject matter. FRA agreed to explain any 
deviations from the committee's recommendations in the NPRM.
    FRA established an Advisory Committee in accordance with the 
Federal Advisory Committee Act, 5 U.S.C. 581, based on the response to 
its notice. On December 27, 1994, the Office of Management and Budget 
approved the Charter to establish a Roadway Worker Safety Advisory 
Committee, enabling the committee to begin negotiations. FRA announced 
the establishment of this Advisory Committee, with the first 
negotiating session to be held on January 23-25, 1995 (60 FR 1761). FRA 
chose the Federal Mediation and Conciliation Service to mediate these 
sessions, and administrative support was acquired to carry out 
organizational and record keeping functions.
    The twenty-five member Advisory Committee was comprised of 
representatives from the following organizations:

American Public Transit Association (APTA)
The American Short Line Railroad Association (ASLRA)
Association of American Railroads (AAR)
Brotherhood of Locomotive Engineers (BLE)
Brotherhood of Locomotive Engineers, American Train Dispatchers 
Department (ATDD)
Brotherhood of Maintenance of Way Employees (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Burlington Northern Railroad (BN)
Consolidated Rail Corporation (Conrail)
CSX Transportation, Inc. (CSX)
Florida East Coast Railway Company (FEC)
Federal Railroad Administration (FRA)
Northeast Illinois Regional Railroad Corporation (METRA)
National Railroad Passenger Corporation (AMTRAK)
Norfolk Southern Corporation (NS)
Regional Railroads of America (RRA)
Transport Workers Union of America (TWU)
Union Pacific Railroad Company (UP)
United Transportation Union (UTU)

    The Advisory Committee held 7 multiple-day negotiating sessions 
that were open to the public, as prescribed by the Federal Advisory 
Committee Act, 5 U.S.C. 581. In an effort to assist this proceeding, 
information was presented at the first Advisory Committee meeting by 
committee members who had participated earlier in an independent task 
force. This task force, comprised of representatives of several 
railroads and labor organizations, had met during the preceding year to 
independently analyze the issue of on-track safety. The findings and 
recommendations of the task force were considered along with 
information presented by other Advisory Committee members.
    The Advisory Committee reached consensus on 11 specific 
recommendations and 9 general recommendations to serve as the basis for 
a regulation. These recommendations were incorporated into a report 
that was submitted to the Secretary of Transportation and the Federal 
Railroad Administrator on May 17, 1995. This report did not include an 
NPRM, as originally conceived, but established the basis for the 
proposed rule.
    The Advisory Committee held one additional two-day session, and 
reached consensus on a proposed rule that conformed to the 
recommendations submitted in its report. The Committee recommended that 
FRA publish that document as a proposed Federal regulation and continue 
the rulemaking

[[Page 65961]]

procedures necessary to adopt its principles in a final rule. FRA 
published a notice of proposed rulemaking on March 14, 1996 (61 FR 
10528). In that notice, FRA specifically solicited comment from 
contractors and tourist railroads, since these two groups were not 
represented on the Advisory Committee. (61 FR 10531, 10532) FRA 
received 15 comments, including a comment from the National Railroad 
Construction and Maintenance Association (NRC), representing railroad 
contractors. FRA also received a request for a public hearing in 
response to the NPRM. A public hearing was held July 11, 1996 where 
various parties made oral presentations. A final Advisory Committee 
meeting was held on July 12, 1996 where committee members considered 
comments submitted to the docket. An NRC representative was present and 
participated in the discussion.

Comments and Responses

Effective Dates

    Several commenters expressed concern that the effective dates 
listed in the NPRM were not feasible for adoption and implementation of 
the necessary on-track safety programs, in order to be in compliance 
with the expected Federal standards. The NPRM provided for staggered 
effective dates of June 1st, September 1st, and December 1st of 1996. 
These dates were published as part of the Advisory Committee's 
recommended language and were appropriate at the time the committee 
reached its consensus recommendation. The time required to complete 
this rulemaking necessitates an extended implementation schedule. The 
final dates included in this publication reflect the date on which FRA 
expects full compliance. Each railroad must notify FRA of their on-
track safety program at least 30 days prior to their respective 
compliance date. Contractors to railroads are expected to be in 
compliance with this rule, at the same time that their host railroads 
are to comply. A reference to section Sec. 214.305 Compliance Dates 
establishes the final dates for compliance.

Scope of the Rule

    Comments were submitted suggesting that FRA expand the scope of the 
rulemaking in several ways. One commenter expressed the need to include 
protection against the hazards of vehicular traffic at highway-rail 
grade crossings. Another commenter suggested that FRA include 
contractors who are granted access to a railroad's right of way for 
work not associated with the railroad, including duties such as fiber-
optic installation and utility installation. The same commenter also 
suggested that locomotive engineers and conductors be considered 
roadway workers in order to afford them an opportunity to challenge on-
track safety procedures.
    FRA identified major issues for negotiation and solicited comments 
regarding additional issues that would be appropriate for consideration 
regarding the potential scope of this rule, as early as August of 1994, 
when it issued its Notice of Proposal to Form a Negotiated Rulemaking 
Advisory Committee and Request for Representation (59 FR 42200). FRA 
received comments to this notice devoted solely to membership on the 
committee. No comments were submitted addressing the potential scope of 
this rule. Once negotiations began, the Advisory Committee deliberated 
at length regarding the appropriate scope of this rule, as well (61 FR 
at 10531). The Advisory Committee purposely chose not to address all 
conceivable hazards, but studied the available data regarding safety 
issues and selected those circumstances presenting the greatest risk to 
roadway workers. The issues presented by these commenters may be valid, 
but extend beyond the scope of the issues highlighted by the data 
reviewed.
    Neither FRA nor the Advisory Committee discussed or intended to 
address the hazards that vehicular traffic at grade crossings pose for 
roadway workers. The accident data studied does not provide information 
regarding this type of hazard. FRA's accident expertise has lead it to 
believe that roadway workers are, rarely, if ever, struck by vehicular 
traffic at grade crossings. In addition, consultation with persons 
currently working in the roadway work environment has not focused FRA's 
attention on the hazards of vehicular traffic as a significant issue. 
Although some risk may exist, FRA believes that the risk is not 
significant and that adequate voluntary measures are being taken to 
protect roadway workers at highway rail grade crossings.
    The issue of protecting contractors who are working on the right of 
way, but not conducting work associated with the railroad was at least 
contemplated by FRA. However, in most instances these contractors are 
instructed by each host railroad not to foul the track. In many 
instances, railroads provide watchmen to ensure that these workers 
adhere to this instruction. Additionally, if the work to be performed, 
potentially causes these workers to foul the track, railroads will 
often provide protection to make sure that these contractors are safe, 
while in foul of the track. Perhaps most important is the fact that 
these contractors are rarely out on the right of way, limiting the risk 
to which they subject themselves. This situation is clearly 
distinguishable from that of a roadway worker whose daily work 
environment requires him or her to perform duties on the right of way, 
under traffic, virtually the duration of the working day. FRA believes 
that the current situation, where contractors who are not conducting 
work associated with railroad operations, coordinate with railroads for 
safety procedures while working on the right of way is preferable to 
Federal mandate at this time.
    Finally, engineers and conductors are currently covered by this 
regulation and afforded the right to challenge on-track safety 
procedures when performing as roadway workers. In instances where 
engineers and conductors are not functioning as roadway workers, but 
functioning as train and engine crew members, the rationale for 
affording them the right to challenge on-track safety procedures that 
do not affect them is unclear. In addition, all railroad workers when 
confronted by hazardous conditions related to the performance of their 
duties are protected by Federal statute wholly independent of this 
regulation.

Jurisdiction

    Two comments were submitted essentially requesting clarification 
regarding FRA jurisdiction. Specifically, clarification was sought 
regarding whether these rules apply on track that is not subject to FRA 
jurisdiction and not on the general system of railroad transportation. 
As noted in Sec. 214.3, Application, FRA is concerned with track that 
is part of the general system of railroad transportation. For further 
information regarding FRA's exercise of jurisdiction, one should 
consult 49 CFR Part 209, Appendix A. This Federal regulation, as all 
other rules issued under FRA authority will only apply in instances 
were FRA exercises jurisdiction, on track that is part of the general 
system.

On Track Safety Programs

    One commenter inquired whether contractors would be in compliance 
with the rules by adopting the on-track safety programs of the host 
railroad. The committee understood the circumstances under which most 
contractors conduct their work and in an effort to promote uniformity 
and

[[Page 65962]]

safety, as well as minimize the burden on contractors to railroads, the 
committee concluded that contractors should not devise their own 
complete programs in most instances, but would be expected to comply 
with programs established by the railroads on which they are working 
(61 FR 10531). Contractors would be responsible for ensuring that their 
employees received the appropriate training and that their employees 
complied with the appropriate railroad's program, but would not 
necessarily need their own FRA approved program.

Definition of Roadway Worker

    Several commenters suggested the definition of roadway worker be 
reworded to refer to a worker ``whose duties include and who is engaged 
in'' to clarify that the rule applies to workers performing their 
roadway worker tasks. This suggestion essentially adds the qualifier 
``who is engaged in'' to the definition that appeared in the NPRM. FRA 
believes that this qualifier would severely limit application of the 
rule due to the difficulty in determining when a worker becomes engaged 
in a task. In addition, the Advisory Committee determined that the term 
roadway worker was intended to describe employees who are covered and 
not to describe when this coverage begins and ends. Other provisions of 
the regulation enumerate the instances in which a worker must have some 
form of on-track safety and which methods are permissible. Neither the 
committee nor FRA was persuaded that this addition to the definition 
would be useful.

Restricted Speed and Lone Workers

    Two commenters expressed their view that restricted speed should be 
considered a form of on- track safety protection. These commenters also 
expressed their intention to apply for waivers to the lone worker 
provisions and utilize restricted speed as an alternative method of 
protection. The committee determined after much deliberation that a 
blanket provision allowing restricted speed as an on-track safety 
measure for the protection of roadway workers would be ineffective (61 
FR 10537). The NPRM also noted that unusual circumstances at certain 
locations where this measure might be considered sufficient would have 
to be addressed by the waiver process. Nothing in the comments provides 
a basis for changing that initial assessment. Beyond acknowledging the 
waiver process as the appropriate avenue for such concerns, FRA cannot 
speculate regarding the outcome of waiver petitions the agency may 
receive at some future date. If such petitions arrive, FRA will, as 
with any other waiver petition, evaluate the operational facts 
presented by the petitioner and determine whether granting a waiver is 
appropriate.
    Two additional comments were made regarding the lone worker 
provisions. These commenters stated that the prohibition on using 
individual train detection within manual interlockings, controlled 
points, or remotely controlled hump yards is unduly restrictive. They 
said that roadway workers should be allowed to use individual train 
detection for inspection purposes at any location where sight distance, 
background noise, and adjacent track constraints are not present. These 
commenters expressed concern that this extreme limitation on the use of 
individual train detection may have a negative impact on safety. The 
commenters believe that when lone workers are required to seek methods 
other than individual train detection for on-track safety and are 
unable to obtain them, they will not inspect. Essentially, these 
commenters fear that a tendency to inspect these locations less 
frequently will emerge, if lone workers are forced to seek other 
methods of on-track safety. They also stated that the relevant accident 
data are not compelling since, they do not show even one death 
involving a lone worker inspecting at a controlled point, manual 
interlocking and/or remotely controlled hump yard. Most important, the 
rule itself gives lone workers using individual train detection the 
right to secure more restrictive on-track safety protection, whenever 
they deem it necessary. The commenter also stressed that a railroad 
that considers it appropriate can restrict the use of individual train 
detection at certain locations in its On-Track Safety Programs. Lastly, 
a suggestion was made during the final Advisory Committee meeting to at 
least allow the use of individual train detection for inspections at 
single siding, single track controlled points (usually a simple 
junction where there is only one switch, and three signals). Consensus 
was not reached to change the original recommendation.
    The Advisory Committee recommended that the NPRM restrict the use 
of individual train detection in interlockings and controlled points. 
This recommendation was adopted and incorporated into the proposed 
rule. The Advisory Committee reached a consensus on this issue after 
much debate. By reaching consensus, the Advisory Committee acknowledged 
the safety benefits of this provision.
    FRA is not persuaded that allowing the use of individual train 
detection at these locations would enhance safety, and in fact, 
believes that it would compromise safety. The use of individual train 
detection does not reduce or lower the risk of being struck by a train, 
since workers are not assured that a train will not operate over track 
on which they are working. This method of on-track safety should 
therefore be limited to locations where the risks associated with the 
roadway work environment are fairly minimal. FRA has provided 
statistical data indicating that controlled points, manual 
interlockings and remotely controlled hump yards are not areas of low 
roadway risk.
    The Advisory Committee was not willing to disturb its previous 
consensus to limit the use of individual train detection. FRA is of the 
independent belief that restricting individual train detection is based 
on sound safety principles and is not persuaded to change this 
provision. First, the appropriate safety data, indicates that several 
employees (admittedly not lone workers) who were working in 
interlockings and controlled points, and had relied on their ability to 
see and hear an approaching train in time to retreat from the track 
(essentially individual train detection) were killed. In many cases, 
these employees had the right to establish more restrictive protective 
measures, but failed to exercise that right. Although the comments 
accurately state that there is no record of fatalities to lone workers 
using individual train detection while working in controlled points in 
the accident data reviewed by the committee, this assertion is 
misleading. Eleven (11) fatalities occurred within interlockings or 
controlled points where workers were being afforded no more protection 
than that of a lone worker using individual train detection. The fact 
that these people were not lone workers is irrelevant. The important 
fact is that they were relying for safety solely on their own ability 
to see and hear an approaching train.
    Finally, FRA is not persuaded that inspections should be allowed 
using individual train detection at single siding, single track 
controlled points. The distinction between inspections and other work 
in the rail industry is imprecise. The term entails both the 
examination of systems and apparatus and the performance of minor 
repairs and adjustments to ensure conformance with prescribed 
standards. For example, a track worker performing a track inspection 
may examine track structure, take measurements, install bolts and

[[Page 65963]]

replace broken angle bars. A signal worker performing a switch 
inspection may measure tolerances, make adjustments to the switch 
machine and replace worn lock rods. In addition, this type of 
controlled point accounts for a significant portion of the affected 
locations in the U.S. FRA has decided that the reasoning for 
restricting the use of this on-track safety method was sound and does 
not merit modification.

Preemption

    Comments were submitted addressing the potential preemptive effect 
of this rule. One commenter wanted FRA to expressly state that the 
provision requiring an audible warning from trains preempts state and 
local whistle ban laws. FRA believes there is no need to include rule 
language indicating that state and local whistle bans are preempted. 
FRA could potentially include language in all provisions of this rule, 
and all others, stating that any state and local rules covering the 
same subject matter as the identified Federal regulatory provision are 
preempted. Instead, FRA has issued a general statement regarding the 
preemptive effect of all the provisions of the rule in Sec. 214.4. In 
addition, the section-by-section analysis corresponding to 
Sec. 214.339, Audible Warning from trains, expressly states FRA's 
intention to preempt state and local whistle ban ordinances. Although 
preemption decisions in any particular factual context are a matter for 
courts to resolve, courts generally afford great deference to the 
subject matter the appropriate regulatory agency intended to cover. In 
this instance, the rulemaking record establishes FRA's intent to cover 
the same subject matter as state and local whistle bans in the section-
by-section analysis and the Federalism Assessment which acknowledges 
potential Federalism implications that was prepared for the docket at 
the NPRM stage of this rulemaking. (61 FR at 10542). FRA notes that no 
comments were submitted to the docket substantively in opposition to 
this provision requiring audible warnings. States and local governments 
did not respond to the NPRM with concerns regarding this provision 
potentially in conflict with their whistle ban orders.
    Additional comments regarding preemption focused on this 
regulation's impact on state clearance requirements. The NPRM uses the 
term fouling a track to essentially specify the proximity to railroad 
track at which an individual or equipment could be struck by a moving 
train or on-track equipment. Conversely, state clearance requirements 
establish specifications to govern the minimum distance between track 
and fixed structures. Although the two concepts, proximity of humans 
and equipment to track and proximity of fixed structures to track, are 
distinguishable, the potential for misinterpretation of the Advisory 
Committee's intent persuaded the agency to address this issue. To 
clarify the situation, FRA wants to explicitly state that FRA and the 
Advisory Committee did not intend to affect state clearance 
requirements.

Use of Universal Marker for Exclusive Track Occupancy

    One commenter suggested that FRA establish a universal marker to 
denote exclusive track occupancy zones. Although this suggestion may 
promote industry-wide uniformity which has some measure of appeal, 
individual railroads are in the best position to assess the appropriate 
symbol to incorporate into their existing operating rules and new on-
track safety program. While analyzing this suggestion, FRA realized 
that the additional burden on the railroads of designing and securing 
uniform symbols or markers would render no substantial benefit above 
those symbols currently used by each railroad. FRA made a conscious 
decision to allow railroads to utilize the flags or signals that are 
prescribed in their current operating rules.

Inaccessible Track

    One commenter suggested changing the language of the provision 
regarding inaccessible track to read, ``Inaccessible track shall be 
defined by one or more of the following physical features.'' * * * This 
commenter was attempting to clarify that establishment of inaccessible 
track does not require use of the same physical feature at each entry 
point. The Advisory Committee reached consensus on this suggestion and 
recommended incorporation of this concept into the final rule. The 
suggested language is not adopted precisely as presented. Instead, FRA 
drafted language clarifying that inaccessible track can be established 
by using any of the features listed in the provision at any possible 
point of entry. Essentially, a flagman could be used at one entry 
point, while a secured switch could be used at another entry point.
    FRA has independently added another method to restrict entry to 
inaccessible track, in Sec. 214.327(a)(4). That method recognizes that 
where a roadway worker has established working limits on controlled 
track, the existence of those working limits can be used to restrict 
entry of trains or equipment onto non-controlled track that connects to 
the controlled track that is within the working limits. At its 
simplest, this provision would permit a roadway worker who has 
established exclusive track occupancy on a main track to occupy side 
tracks and yard tracks that connect exclusively with the main track, 
provided that no operable locomotives or other equipment are located on 
those non-controlled tracks. Without this provision, the roadway worker 
would most likely have been required to spike and tag all switches 
leading to the non-controlled tracks, even though assurance had been 
obtained that no trains would arrive at those two switches.
    Another legitimate use for this provision would exist in a remotely 
controlled hump facility, where switches at the hump end of the 
classification tracks can be remotely lined and secured away from the 
working limits, but the manual switches at the other end would have to 
be spiked and tagged. If a form of controlled track were established at 
the far end, requiring the authority of a control operator to enter a 
classification track, the requirements of this section could be met.

Flag protection

    FRA has independently revised the provisions for exclusive track 
occupancy to accommodate circumstances in which a roadway worker may 
use this method to establish working limits when unable to communicate 
with the train dispatcher or control operator. The provisions for use 
in these circumstances incorporate either flag protection, or the 
control of signals by the roadway worker.
    FRA understands that the Advisory Committee intended to permit the 
use of flag protection for immediate protection of unsafe track 
conditions and the roadway workers who are correcting those conditions. 
Flag protection has been used by railroads for many years to protect 
trains from other trains or unusual conditions, and is often the first 
means available to quickly establish protection. The operating rules 
under which this method is used are well established, and FRA has no 
evidence that they are not effective for this purpose, regardless of 
whether the train dispatcher or control operator is notified 
beforehand.
    In some locations, such as some automatic interlockings and 
moveable bridges, railroad employees are able to control the signals 
governing train movements and cause them to display an aspect that 
indicates ``Stop.'' For instance, a roadway worker who performs an 
inspection at an automatic

[[Page 65964]]

interlocking might be able to open a control that prevents any signals 
at that location from clearing for a train, and would thereby receive 
protection within the limits of the interlocking. This protection would 
not depend upon the authority of a train dispatcher or control 
operator, but would be obtained directly by the roadway worker through 
the signal system. In the same manner, a bridge tender on a moveable 
bridge might be able to obtain protection within the interlocking 
limits on the bridge by withdrawing the bridge locks, causing the 
signals to assume their most restrictive indication. In either case, 
the rules and instructions of the railroad might or might not require 
permission from the train dispatcher or control operator, but such 
permission would not be a regulatory requirement for the establishment 
of working limits through exclusive track occupancy under these 
circumstances.
    It must be carefully noted that the term, ``aspect that indicates 
`Stop' '' does not include aspects that permit a train to proceed at 
restricted speed, or to pass the signal under any other circumstances 
without flag protection. Railroad programs must provide adequate 
protection for roadway workers who have operated signals directly, 
without the knowledge of the train dispatcher or control operator. 
Particular concern arises in a case where a train dispatcher or control 
operator may authorize a train to pass a signal at restricted speed 
while a roadway worker is protected by that signal. FRA would consider 
that a rule which requires a member of the train crew to precede the 
train through the limits of the interlocking would adequately address 
that concern.

Training

    A comment was submitted suggesting that each roadway worker receive 
cross-training for all roadway work positions. The commenter envisioned 
potential misuse of the training and qualification provisions to 
circumvent collectively bargained seniority rights. It would be 
inappropriate for FRA to mandate training for potential promotions. FRA 
can and does require that employees have the requisite training and 
qualification for the duties of their current positions. During 
discussions involving this concern, the Advisory Committee agreed that 
railroads should employ as universal an approach to training as 
possible. However, it might be inefficient and costly to train roadway 
workers for duties which they never perform, in anticipation of a 
potential promotion at some future date. FRA also believes that the 
suggested cross-training would restrict a railroad's employment of new 
workers, especially entry-level employees. New employees would have to 
be trained and qualified for all functions, including the most complex 
and demanding, before performing any work near the track. FRA did not 
intend to require such a restriction.

Emergency Procedures/Train Coordination

    Commenters suggested that a provision be added to the rule 
permitting roadway workers to perform their duties on the track, in an 
emergency, without establishing one of the prescribed forms of on-track 
safety. For example, if an ice storm has caused trees to fall across 
the track and into the signal and communication wires, roadway workers 
would accompany trains to remove the trees and reestablish 
communications. Under the proposed rule, the roadway workers would be 
unable to establish working limits because of the presence of the train 
and the inability to immediately communicate with the dispatcher. The 
Advisory Committee discussed this question at the July 12 meeting. 
Various members clearly stated their need for such a provision, as well 
as their concerns regarding potential problems associated with it. The 
Advisory Committee did not reach consensus on the question.
    However, FRA has considered the concerns expressed by the Advisory 
Committee. FRA believes that a form of on-track safety can be arranged 
whereby a roadway worker or a roadway work group would be protected by 
the movement authority of a train. The method prescribed by FRA, termed 
Train Coordination, incorporates all the safeguards necessary to 
protect the roadway workers from train movements, and addresses the 
concerns of the commenters as well. FRA independently expanded the 
concept discussed in the comments and by the Advisory Committee. FRA 
believes that, rather than restricting this provision to emergency 
situations, it should be crafted for use in any situation, including 
cleaning snow out of switches for a specific train, handling materials 
with a work train, or repairing track at a derailment site. The 
underlying principle is that a roadway worker should be assured that a 
train will not arrive unexpectedly at a work location. The provision 
for Train coordination provides that assurance.

Regulatory Impact

    FRA received written and oral comments focusing on economic aspects 
of the NPRM and the regulatory impact analysis. All commenters were 
supportive of the safety initiatives required by the proposed 
regulation and acknowledge the requisite safety benefits derived from 
this rule. However, commenters were doubtful that an estimated $174 
million benefit derived from the estimated worker productivity 
increases would occur. In fact, some commenters felt that no 
productivity increase would result from the proposed rule. In addition, 
some commenters questioned the underlying assumptions and methodologies 
used to compile the regulatory impact analysis. One commenter suggested 
that FRA independently address the costs and benefits of this 
regulation for the commuter rail segment of the industry. In contrast 
to the skepticism communicated, one public hearing participant found 
the economic analysis to be valid.
    FRA appreciates the responses about the potential economic impact 
of the rule. FRA continues to believe that its underlying methodology 
and assumptions are valid. These methods are consistently used by the 
agency and provide the foundation for virtually all regulatory impact 
analyses. One commenter disagreed with FRA's expectation that only two 
(2) minutes will be added to job briefings and further contended that 
costs for the job briefing will be more than two times the amount 
calculated by FRA. FRA continues to support its estimate of two minutes 
because it is based on sound economic reasoning. Many railroads 
currently conduct job briefings and as noted in the NPRM, the 
requirements of this regulation will structure time that is presently 
already allotted for job briefings. Small railroads with simpler 
operations will not require significant time to provide the method of 
on-track safety, provide instructions to be followed and receive 
acknowledgment and understanding. FRA was not persuaded to change its 
estimate regarding the additional time necessary to conduct the 
required job briefing, based on the comments submitted.
    FRA did not find the concerns regarding potential productivity 
increases compelling. In particular, the argument that absolutely no 
productivity increases will occur was not extremely persuasive. 
However, FRA acknowledges the difficulty in quantifying these potential 
increases in productivity and believes that these benefits are more 
appropriately considered qualitative (non-quantified) benefits. FRA has 
modified the regulatory impact analysis so that the

[[Page 65965]]

analysis does not factor an estimate of the value of productivity 
increases into the total benefits numerical calculation. FRA remains 
confident that productivity increases will result from this rulemaking, 
but strongly believes in conjunction with labor and management that 
this rule is justified on the basis of safety benefits alone. Further 
detailed discussion of the Regulatory Impact Analysis can be found in 
the analysis itself and the Regulatory Impact section of the preamble.

Penalty Schedule and Enforcement

    Although notice and comment is not required for statements of 
policy, FRA invited submission of views on the revision of Appendix A 
to Part 214.--Schedule of Civil Penalties to include penalties for 
violations of Supart C (61 FR 10541). No comments were submitted on the 
subject of enforcement in general or appropriate penalty amounts. FRA 
established a penalty schedule for issuance with this final rule 
without specific public input. Since no comments were submitted on the 
subject of enforcement generally, FRA believes that regulated public 
understand and expect that this rule will be enforced upon contractors 
and contractor employees, as well as railroads and railroad employees, 
in accordance with its normal exercise of enforcement authority 
detailed in Appendix A, 49 CFR Part 209.
    In the interest of preserving the rationale for this rule in 
general, and the integrity of the negotiated rulemaking process in 
particular, FRA refers interested parties to the preamble of the NPRM 
for a complete understanding of the events resulting in this rule (61 
FR 10528). The relevant safety issues, statistical data, and a synopsis 
of the Advisory Committee's report, recommended NPRM and FRA's 
deviations from that recommendation are set forth in great detail in 
the NPRM. The Advisory Committee indicated that the preamble of the 
NPRM accurately represented their intent and provided a succinct 
document detailing the important issues related to this rulemaking from 
the inception of this proceeding to the publication of the NPRM.
    The final rule that follows reflects the culmination of FRA's first 
Negotiated Rulemaking. The rule incorporates the collective wisdom of 
various segments of the railroad industry, labor, including support and 
input from the NRC, FRA, State governmental entities, and the public. 
FRA received no overall opposition by any railroad or labor 
organization to the issuance of Roadway Worker protection rules. FRA 
has asserted its independent judgement to adopt the proposal 
recommended by the Advisory Committee where sufficient and as noted 
earlier, in a limited number of instances enhance certain provisions 
where necessary. FRA believes that the positive input received from the 
contractors organization completes the process and the final rule 
issued below represents the consensus of the entire railroad industry.

Section Analysis

    FRA amends Part 214 of Title 49, Code of Federal Regulations by 
adding a new subpart specifically devoted to the protection of 
employees from the hazards associated with working near moving trains 
and equipment.

1. Application: Sec. 214.3

    This subpart will apply to all railroads and contractors to 
railroads in the general system of railroad transportation, including 
commuter rail operations. Accordingly, existing section 214.3 will not 
change. This means that tourist and excursion railroads that are not 
part of the general system of railroad transportation will not be 
subject to these rules. The data illustrating the serious nature of the 
hazards addressed in this subpart did not include tourist and excursion 
railroads. FRA has not otherwise been notified that these hazards 
causing death and injury to roadway workers are a serious problem for 
tourist and excursion railroads or any other railroads not operating 
over the general system of railroad transportation. FRA extended an 
invitation for comments to the NPRM to tourist railroads, but received 
no comments to the docket. FRA therefore concludes that inclusion of 
tourist and excursion railroads that do not operate on the general 
system of railroad transportation is inappropriate at this time.

2. Preemptive Effect: Sec. 214.4

    Consistent with the mandate of 49 U.S.C. 20106 (formerly section 
205 of the Federal Railroad Safety Act of 1970), Section 214.4 is added 
to this rule to indicate that states cannot adopt or continue in force 
laws related to the subject matter covered in this rule except where 
there is a local safety hazard consistent with this part involved, and 
where no undue burden on interstate commerce is imposed. FRA realizes 
that preemption determinations regarding any particular factual context 
are a matter for courts to resolve, but also believes that inclusion of 
this section provides a statement of agency intent and promotes 
national uniformity of regulation in accordance with the statute.

3. Definitions: Sec. 214.7

    Section 214.7 will be amended to add new definitions. Several 
definitions are particularly important to the understanding of the 
rule, and are explained here. However, many other terms are defined and 
explained with the analysis of the rule text to which they apply.
    Effective securing device is defined in this part as one means of 
preventing a manually operated switch or derail from being operated so 
as to present a hazard to roadway workers present on certain non-
controlled tracks. This definition is specifically intended to include 
the use of special locks on switch and derail stands that will 
accommodate them, and switch point clamps that are properly secured. It 
also includes the use of a spike driven into the switch tie against the 
switch point firmly enough that it cannot be removed without proper 
tools, provided that the rules of the railroad prohibit the removal of 
the spike by employees not authorized to do so. Every effective 
securing device must be tagged. FRA will examine each railroad's on-
track safety program to determine that the rules governing the 
securement of switches will provide the necessary level of protection.
    Lone workers are defined in this part as roadway workers who are 
not being afforded on-track safety by another roadway worker, are not 
members of a roadway work group, and are not engaged in a common task 
with another roadway worker. Generally, a common task is one in which 
two or more roadway workers must coordinate and cooperate in order to 
accomplish the objective. Other considerations are whether the roadway 
workers are under one supervisor at the worksite; or whether the work 
of each roadway worker contributes to a single objective or result.
    For instance, a foreman and five trackmen engaged in replacing a 
turnout would be engaged in a common task. A signal maintainer assigned 
to adjust the switch and replace wire connections in the same turnout 
at the same time as the track workers would be considered a member of 
the work group for the purposes of on-track safety. On the other hand, 
a bridge inspector working on the deck of a bridge while a signal 
maintainer happens to be replacing a signal lens on a nearby signal 
would not constitute a roadway work group just by virtue of their 
proximity. FRA does not intend that a common task may be subdivided 
into individual tasks to avoid the use of on-track safety

[[Page 65966]]

procedures required for roadway work groups.
    On-track safety is defined as the state of freedom from the danger 
of being struck by a moving railroad train or other railroad equipment, 
provided by operating and safety rules that govern track occupancy by 
personnel, trains and on-track equipment. This term states the ultimate 
goal of this regulation, which is for workers to be safe from the 
hazards related to moving trains and equipment while working on or in 
close proximity to the track. The rule will require railroads to adopt 
comprehensive programs and rules to accomplish this objective. This 
rule, and required programs, will together produce a heightened 
awareness among railroad employees of these hazards and the methods 
necessary to reduce the related risks.
    Qualified as used in the rule with regard to roadway workers 
implies no provision or requirement for Federal certification of 
persons who perform those functions.
    Roadway worker is defined as any employee of a railroad, or of a 
contractor to a railroad, whose duties include inspection, 
construction, maintenance or repair of railroad track, bridges, 
roadway, signal and communication systems, electric traction systems, 
roadway facilities or roadway maintenance machinery on or near track or 
with the potential of fouling a track, and flagmen and watchmen/
lookouts as defined in this rule.
    Some railroad employees whose primary function is transportation, 
that is, the movement and protection of trains, will be directly 
involved with on-track safety as well. These employees would not 
necessarily be considered roadway workers in the rule. They must, of 
course, be capable of performing their functions correctly and safely.
    The rule requires that the training and qualification for their 
primary function, under the railroad's program related to that 
function, will also include the means by which they will fulfill their 
responsibilities to roadway workers for on-track safety. For instance, 
a train dispatcher would not be considered a roadway worker, but would 
have to be capable of applying the railroad's operating rules to the 
establishment of working limits for roadway workers. Likewise, a 
conductor who protects a roadway maintenance machine, or who protects a 
contractor working on railroad property, would not be considered a 
roadway worker, but would receive training on functions related to on-
track safety as part of the training and qualification of a conductor.
    Employees of contractors to railroads are included in the 
definition if they perform duties on or near the track. They should be 
protected as well as employees of the railroad. The responsibility for 
on-track safety of employees will follow the employment relationship. 
Contractors are responsible for the on-track safety of their employees 
and any required training for their employees. FRA expects that 
railroads will require their contractors to adopt the on-track safety 
rules of the railroad upon which the contractor is working. Where 
contractors require specialized on-track safety rules for particular 
types of work, those rules must, of course, be compatible with the 
rules of the railroad upon which the work is being performed.
    The rule does not include employers, or their employees, if they 
are not engaged by or under contract to a railroad. Personnel who might 
work near railroad tracks on projects for others, such as cable 
installation for a telephone company or bridge construction for a 
highway agency, come under the jurisdiction of other Federal agencies 
with regard to occupational safety.
    The terms explained here are not exhaustive of the new definitions 
that will be added to Section 214.7. This introduction merely provides 
a sampling of the most important concepts of this proposed regulation. 
A number of defined terms are explained in the section by section 
analysis when analyzing the actual rule text to which they apply.

4. Purpose and Scope: Sec. 214.301

    Section 214.301 states the purpose for the minimum standards 
required under this subpart to protect roadway workers. Railroads can 
adopt more stringent standards as long as they are consistent with this 
subpart.

5. Information Collection Requirements: Sec. 214.302

    Section 214.302 details the information collection requirements of 
the rule and their OMB approval number.

6. Railroad On-Track Safety Programs, Generally: Sec. 214.303

    Section 214.303 contains the general requirement that railroads 
shall adopt and implement their own program for on-track safety, which 
meets Federal minimum standards. Rather than implement a command and 
control rule, FRA decided to establish the parameters for such a 
program and defer to the expertise of each individual railroad to adopt 
a suitable on-track safety program for their railroad, in accordance 
with these parameters. FRA felt that establishing an internal 
monitoring process to determine compliance and effectiveness would be a 
necessary component of any On-Track Safety Program. Consequently, each 
railroad must incorporate an internal monitoring process as a component 
of its individual program. It should be noted that this internal 
monitoring will not replace FRA's inspection and monitoring efforts for 
compliance with this subpart.

7. Compliance Dates: Sec. 214.305

    Section 214.305 establishes the schedule for compliance with this 
rule. The dates vary by class of railroad. FRA believes that staggering 
effective dates allows the largest number of workers who are exposed to 
the highest level of risk to benefit from the On-Track Safety Program 
first. FRA hopes to be able to expedite the review process, as the 
smallest number of individual programs will be put in place by the 
major carriers. After this initial phase of reviews for Class I 
railroads, FRA will have established review policies and resolved many 
recurrent issues, making the larger number of reviews for smaller 
railroads more efficient. The experience gained through the initial 
phase of the review process will contribute to the next and larger 
phase of reviews. Although the rule formally establishes a later 
compliance date for smaller railroads, this would not prevent smaller 
railroads from implementing their programs sooner.

8. Review and Approval of Individual On-Track Safety Programs by FRA: 
Sec. 214.307

    Section 214.307 specifies the process for review and approval of 
each railroad's on-track safety program by FRA. The intent of the 
review and approval is to be constructive rather than restrictive. FRA 
prefers that a review of each program take place at the railroad 
because an open discussion of the program would be beneficial to all 
concerned. The effective date of a railroad's program will not be 
delayed by FRA's scheduling of a review, or granting approval. The 
railroad will be responsible for compliance with this rule regardless 
of the status of FRA review or approval of its program.
    Likewise, a railroad may amend its program following FRA's initial 
approval without prior approval of the amendment from FRA. Of course, 
should FRA later disapprove the amendment, the program would have to be 
changed to FRA's satisfaction. The railroad will still be responsible 
for compliance with this rule, and subject

[[Page 65967]]

to compliance monitoring and enforcement by FRA. FRA will make every 
effort, when requested, to provide a timely review of a program or 
amendment before its effective date, and to assist in any manner 
possible to enhance the on-track safety afforded to roadway workers.
    Contractors will be required to conform to the on-track safety 
programs on the railroads upon which they are working. Contractors 
whose employees are working under a railroad's approved on-track safety 
program need not submit a separate on-track safety program to FRA for 
review and approval.
    Some contractors operate highly specialized equipment on various 
railroads on a regular basis. That equipment might require special 
methods to provide on-track safety for railroad and contractor 
employees. Such a special method will require a clear and reasonable 
way to mesh with the on-track safety programs of the railroads upon 
which the equipment is operated.
    The rule does not specifically call for the involvement of 
employees or their representatives in the program design or review 
process, because the responsibility for the program's compliance with 
this rule lies with the employer. However, it should be noted that this 
rule itself is the product of a successful proceeding in which 
management, employee representatives and the Federal government were 
fully involved from the beginning. That fact should be an encouragement 
to all concerned to realize that the success of an on-track safety 
program will require the willing cooperation of all persons whose 
duties or personal safety are affected by the program.

9. On-Track Safety Program Documents: Sec. 214.309

    Section 214.309 specifies the type of on-track safety manual each 
railroad must have. Essentially, the railroad must have all on-track 
safety rules in one place, easily accessible to roadway workers. This 
provision is intended to provide the roadway worker with a single 
resource to consult for on-track safety, to avoid fragmentation of the 
rules and the ultimate dilution of their vital message.
    All on-track safety rules could be placed together as an on-track 
safety section of an already existent manual. FRA is aware that many 
railroads use a binder system for railroad manuals. Adding a section to 
such a binder might be less burdensome than creating a separate manual, 
and would clearly comply with this provision.
    An employer, such as a contractor, whose roadway workers work on 
another employer's railroad, will usually adopt and issue the on-track 
safety manual of that railroad for use by their employees. It will be 
the employer's responsibility to provide the manual to its employees 
who are required to have it and to know that each of its employees is 
knowledgeable about its contents.
    This section also sets forth the responsibility of the employer to 
provide this manual to all employees who are responsible for the on-
track safety of others, and those who are responsible for their own on-
track safety as lone workers. Workers who are responsible for the 
protection of others must have the manual at the work site for easy 
reference. Lone workers must also have this manual easily available to 
them. FRA does not intend that the individual must necessarily have 
this manual on his or her person while performing work, but to have it 
available and readily accessible at the work site.
    FRA also does not intend that all related operating rules, 
timetables or special instructions must be reproduced in this manual. 
Any related publications or documents should be cross-referenced in the 
On-Track Safety Manual and provided to employees whose duties require 
them.
    Lastly, the manual must be at the work site available for reference 
by all roadway workers. Many roadway workers will not be responsible 
for providing protection for themselves or others, but still must 
comply with the rules. All employees have a responsibility to remain at 
a safe distance from the track unless they are assured that adequate 
protection is provided. Although not responsible for providing 
protection for others, they must be familiar with the rules to 
determine whether adequate protection is provided and have the rules 
readily available if it is necessary to consult them.

10. Responsibility of Employers: Sec. 214.311

    Section 214.311 addresses the employer's responsibility in this 
rule. This section applies to all employers of roadway workers. 
Employers may be railroads, contractors to railroads, or railroads 
whose employees are working on other railroads. Although most on-track 
safety programs will be implemented by railroads rather than 
contractors, both are employers and as such each is responsible to its 
employees to provide them with the means of achieving on-track safety.
    Railroads are specifically required by Sec. 214.303 to implement 
their own on-track safety programs. Section 214.311 however, places 
responsibility with all employers (whether they are railroads or 
contractors) to see that employees are trained and supervised to work 
with the on-track safety rules in effect at the work site. The actual 
training and supervision of contractor employees might be undertaken by 
the operating railroad, but the responsibility to see that it is done 
rests with the employer.
    The guarantee required in paragraph (b) of an employee's absolute 
right to challenge on-track safety rules compliance will be a required 
part of each railroad's on-track safety program, as will be the process 
for resolution of such challenges. On-track safety depends upon the 
faithful and intelligent discharge of duty by all persons who protect 
or are protected by it. Any roadway worker who is in doubt concerning 
the on-track safety provisions being applied at the job location should 
resolve that uncertainty immediately.
    The term at the job location is not meant to restrict who can raise 
an issue or where an issue can be raised. Rather, the challenge must 
address the on-track safety procedures being applied at a particular 
job location.
    A fundamental principle of on-track safety is that a roadway worker 
who is not entirely certain that it is safe to be on the track should 
not be there. A discrepancy might be critical to the safety of others, 
and the first roadway worker who detects it should take the necessary 
action to provide for the safety of all.
    The Advisory Committee used the term No-Fault Right in its report 
to describe the absolute right of each employee to challenge, without 
censure, punishment, harm or loss, the on-track safety compliance 
expressed in paragraph (b) of this section. A challenge must be made in 
good faith in order to fall within the purview of this rule. A good 
faith challenge would trigger the resolution process called for in 
paragraph (c).
    The written process to resolve challenges found in paragraph (c) is 
intended to provide a prompt and equitable resolution of these 
concerns. This is necessary in order that any problems that arise 
regarding on-track safety should be resolved and that any possible 
lapses in safety be quickly corrected.
    The resolution process should include provisions to permit 
determination by all parties as to the safe, effective application of 
the on-track safety rule(s) being challenged at the lowest level 
possible, and for successive levels of review in the event of inability 
to

[[Page 65968]]

resolve a concern at lower levels. FRA believes it best for employers, 
consulting with employees and their representatives where applicable, 
to write effective processes to accomplish these objectives.
    A railroad's on-track safety program will be reviewed and approved 
in accordance with section 214.307(b). FRA will consider this written 
process during its review and approval of the overall on-track safety 
submission. FRA will consider whether the written processes afford a 
prompt and equitable resolution to concerns asserted in good faith and 
their effectiveness in promoting the intelligent, reasoned application 
of the on-track safety principles.

11. Responsibility of Individual Roadway Workers: Sec. 214.313

    Section 214.313 addresses the individual responsibility of each 
roadway worker. Each roadway worker has a responsibility to comply with 
this subpart which is enforceable under the provisions of individual 
liability. FRA has a statement of Enforcement Policy set forth in 
Appendix A to Part 209 that explains the way in which FRA employs its 
enforcement powers. FRA's concerns regarding individual liability are 
willful violations, which are intentional actions, or grossly negligent 
behavior. Paragraph (a) requires that each roadway worker follow the 
railroad's on-track safety rules. Paragraph (b) prohibits roadway 
workers from fouling a track unnecessarily. It is FRA's opinion, as 
well as that of the Advisory Committee, that roadway workers should 
under no circumstances foul a track unless it is necessary to 
accomplish their duties.
    A reference to the definition of fouling a track is useful to 
understand when protection is required. Fouling a track describes the 
circumstance in which a person is in danger of being struck by a moving 
train. Under paragraphs (c) and (d), each roadway worker has the 
responsibility to know that on-track safety is being provided before 
actually fouling a track, and to remain clear of the track and inform 
the employer when the required level of protection is not provided. If 
a roadway worker is not sure that sufficient on-track safety is being 
provided, he or she can satisfy paragraph (c) by simply not fouling the 
track.
    It is a roadway worker's responsibility to advise the employer of 
exceptions taken to the application of a railroad's rules, or 
provisions of this subpart, in accordance with paragraph (d). Employees 
must approach this responsibility in good faith. Essentially an 
employee must have honest concerns whether the on-track safety 
procedures being used provide the necessary level of safety in 
accordance with the rules of the operating railroad. Furthermore, 
employees must be able to articulate those concerns in order to invoke 
the resolution process of the railroad. Initiating an action under the 
resolution process, absent a good faith concern regarding the on-track 
safety procedures being applied, would not be in compliance with this 
subpart.

12. Supervision and Communication: Sec. 214.315

    Section 214.315 details supervision and communication of on-track 
safety methods prior to working. Employees must be notified and 
acknowledge understanding of the on-track safety methods they are to 
use, prior to commencing duties on or near the track. Paragraphs (a) 
and (b) establish the duty of notification by the employer and the 
reciprocal duty of communicating acknowledgment by the employee. These 
sections essentially require a job briefing to inform all concerned of 
on-track safety methods at the beginning of each work period. The 
acknowledgment is an indication by the employee of understanding, or 
the opportunity to request explanation of any issues that are not 
understood.
    Paragraph (c) requires that an employer designate at least one 
roadway worker to provide on-track safety while a group is working 
together. This designation can either be for a specific job or for a 
particular work situation. This section is vital to the success of any 
on-track safety program because the mere presence of two or more 
persons together can be distracting for all persons involved. FRA 
believes that awareness will be enhanced and confusion limited by 
requiring railroads to formally designate a responsible person. This 
designation must be clearly understood by all group members in order to 
be effective. An individual, such as a foreman, may generally be 
designated to be responsible for his or her group, but if two groups 
are working together or roadway workers of different crafts are 
assisting one another, it is imperative that this formal designation be 
communicated to and understood by all affected employees.
    Paragraph (d) explains the duties of the roadway worker designated 
to provide on-track safety for the work group. Before roadway workers 
foul a track, the designated person must inform each roadway worker in 
the group of the on-track safety methods to be used at that time and 
location, including all necessary details associated with the specific 
form of on-track safety that will be used. Essentially, the designated 
person must conduct an on-track safety briefing prior to the beginning 
of work on or near the track. This briefing might also fulfill the 
requirements of paragraph (a) of this section.
    Before changing on-track safety methods during a work period, the 
designated roadway worker must again inform the group of the new 
methods to be used for their safety. If, for example, roadway workers 
are working on a track within working limits when the on-track safety 
method changes to train approach warning, all roadway workers fouling 
the track must first be informed that trains might approach on that 
track, and that they will be warned of the approaching train by 
watchmen/lookouts. They must also know that they can no longer depend 
on that track as a place of safety when a train approaches.
    This provision also establishes methods to be used in the face of 
unforeseen circumstances. In these emergency situations, where 
notification of a change in methods cannot be accomplished, an 
immediate warning to leave the fouling space and not return until on-
track safety is reestablished is required.
    Paragraph (e) addresses the lone worker. The lone worker must also 
have a job briefing before fouling the track. This briefing will be 
slightly different, since the lone worker is not working under direct 
supervision. At the beginning of the duty period, and prior to fouling 
the track, the lone worker must communicate with a supervisor or 
another designated employee to advise of his itinerary and the means by 
which he or she plans to protect himself. This briefing should include 
his geographical location, approximate period of time he or she is 
expected to be in this general locality, different locations planned 
for the day, and the planned method of protection. This paragraph 
assumes that in accordance with other sections, the lone worker is 
capable of determining the proper means to achieve his or her own on-
track safety.
    This paragraph also provides for emergencies in which the channels 
of communication are disabled. In those cases, the briefing must be 
conducted as soon as possible after communication is restored. An 
interruption in communication does not prevent the lone worker from 
commencing work. However, since the lone worker will not have described 
his or her itinerary and the on-track safety methods to be used in this 
location to another qualified employee, he or she must do all that is

[[Page 65969]]

necessary to maintain the requisite awareness of his surroundings.

13. On-track Safety Procedures, Generally: Sec. 214.317

    Section 214.317 refers to the following sections 214.319 through 
214.337 that prescribe several different types of procedures that may 
be used to achieve on-track safety. It requires employers to adopt one 
or more of these types of procedures whenever employees foul a track.
    The definition of fouling a track includes a minimum distance limit 
of four feet from the field, or outer, side of the running rail nearest 
to the roadway worker. A person could be outside that distance and 
still be fouling the track under this rule if the person's expected or 
potential activities or surroundings could cause movement into the 
space that would be occupied by a train, or if components of a moving 
train could extend outside the four-foot zone.
    Railroad equipment is commonly 10 feet 8 inches wide. Standard 
track gauge is 4 feet 8\1/2\ inches but when adding the nominal width 
of the rail, the rail spacing can be taken as 5 feet 0 inches for the 
purposes of this rule. The fouling space would therefore be 13 feet 
wide (5+4+4 feet).
    One exception to the four-foot minimum distance is found in 
paragraph Sec. 214.339(c) (Roadway maintenance machines) and is 
discussed in the analysis of that section.
    The report of the Advisory Committee includes the statement that 
``The provisions of restricted speed do not solely provide protection 
for track equipment, or roadway workers, performing maintenance.'' The 
rule does not recognize restricted speed as a sole means of providing 
on-track safety.
    The Advisory Committee also found, and FRA agrees, that although 
the definitions of ``restricted speed'' found in this rule and in use 
throughout the railroad industry provide adequate separation between 
trains and on-track machines in a traveling mode, a blanket provision 
that would rely upon restricted speed to protect persons working while 
fouling the track would not be effective. Individual locations at which 
unusual circumstances could result in sufficient protection for roadway 
workers from trains moving at restricted speed would be addressed by 
FRA through the waiver process.

14. Working Limits, Generally: Sec. 214.319

    Section 214.319 prescribes the general requirements for the 
establishment of working limits. A reference to the definition of 
Working Limits is helpful to the understanding of this section.
    Working limits is an on-track safety measure which when established 
eliminates the risk of being struck by trains. Several methods of 
establishing working limits are found in this subpart. Those methods 
are distinguished by the method by which trains are authorized to move 
on a track segment, the physical characteristics of the track, and the 
operating rules of the railroad.
    Paragraphs (a) and (b) specifically refer to the roadway worker who 
is given control over working limits. These requirements assure that 
the roadway worker has the requisite knowledge and training, and 
prevent confusion by giving control to only one qualified roadway 
worker.
    Paragraph (c) addresses the procedure when working limits are 
released. It requires that all affected roadway workers be notified 
before trains will begin moving over the affected track. They must be 
either away from the track, or provided with another form of on-track 
safety.
    An example is a work group using a crane to replace rail. Rails are 
removed from the track, the crane is on the track, and on-track safety 
is provided by the establishment of working limits. When the rails have 
been replaced, the crane moves out of the working limits onto another 
track, the roadway worker in charge stations watchmen/lookouts to 
provide train approach warning and notifies all the roadway workers at 
the work site that train approach warning is now in effect and the 
working limits are to be released. The roadway worker in charge then 
releases the working limits to the train dispatcher to permit the 
movement of trains. The roadway workers at the work site continue to 
work with hand tools while on-track safety is provided by the watchmen/
lookouts.

15. Exclusive Track Occupancy: Sec. 214.321

    Section 214.321 prescribes working limits on controlled track as 
one form of on-track safety allowed in accordance with the provisions 
of this subpart. Reference to the definitions of Controlled Track and 
Exclusive Track Occupancy are helpful to the understanding of this 
section.
    Controlled track is track on which trains may not move without 
authorization from a train dispatcher or a control operator. On most 
railroads, trains move on main tracks outside of yard limits, and 
through interlockings, only when specifically authorized by a train 
dispatcher or control operator. This authorization might take the form 
of an indication conveyed by a fixed signal, or a movement authority 
transmitted in writing, orally, or by digital means. Such track would 
conform to the definition of controlled track.
    Some railroads extend the control of a train dispatcher to main 
tracks within yard limits. This control is exercised by requiring the 
crew of every train and engine to obtain a track warrant specifying the 
limits of the territory in which the crew may operate. The track 
warrant lists all restrictions that are in effect within the limits 
specified, including any working limits established to protect roadway 
workers or train movements. The working limits are delineated by flags 
as specified in section 214.321(c)(5). Track from which trains can be 
effectively withheld by such a procedure would conform to the 
definition of controlled track.
    Exclusive track occupancy is the means prescribed in this section 
to establish working limits on controlled track. The procedures 
associated in this section with exclusive track occupancy are intended 
to assure that unauthorized train movements will not occur within 
working limits established by exclusive track occupancy.
    This section addresses controlled track, as it is the type of track 
upon which exclusive track occupancy can be established by the 
dispatcher or control operator. By virtue of their authority to control 
train movements on a segment of controlled track, a dispatcher or 
control operator can also hold trains clear of that segment by 
withholding movement authority from all trains. The procedure depends 
upon communication of precise information between the train dispatcher 
or control operator, the roadway worker in charge of the working 
limits, and the crews of affected trains. This section is intended to 
prescribe that level of precision.
    Paragraph (a) requires that authority for exclusive track occupancy 
may only be granted by the train dispatcher or control operator who has 
control of that track to a roadway worker who has been trained and 
designated to hold such an authority. No other person may be in control 
of the same track at the same time.
    Paragraph (b) and corresponding subparagraphs prescribe the methods 
for transferring the authority for exclusive track occupancy to the 
roadway worker with the requisite level of accuracy.
    Paragraphs (c) and corresponding subparagraphs prescribe physical 
markers or features that may be used to indicate the extent of working 
limits established under this paragraph with the requisite level of 
precision. Flagmen are included as a valid means of establishing 
exclusive track occupancy

[[Page 65970]]

because they are effective, and they might be the only means available 
on short notice or at certain locations.

16. Foul Time: Sec. 214.323

    Section 214.323 prescribes another form of on-track safety 
involving the establishment of working limits through exclusive track 
occupancy. This method of protection is called foul time and is only 
authorized for use on controlled track. The definition of foul time 
should be referenced for a complete understanding of this concept. Foul 
time requires oral or written notification by the train dispatcher or 
control operator to the responsible roadway worker that no trains will 
be operating within a specific segment of track during a specific time 
period. The steps to obtain foul time are detailed in this section. 
Once foul time is given, a dispatcher or control operator may not 
permit the movement of trains onto the protected track segment until 
the responsible roadway worker reports clear.

17. Train Coordination: Sec. 214.325

    This section provides procedures for establishing working limits 
using the train itself and the exclusive authority the train holds on a 
segment of track as a method of on-track safety. This method could be 
used during an unforeseen circumstance or at any other time the 
railroad deems appropriate and authorizes its use in their respective 
program.

18. Inaccessible Track: Sec. 214.327

    Section 214.327 requires that working limits on non-controlled 
track be established by rendering the track physically inaccessible to 
trains and equipment. A reference to the definitions of non-controlled 
track and inaccessible track is useful to the understanding of this 
section. Trains and equipment can operate on non-controlled track 
without having first received specific authority to do so. Trains and 
equipment cannot be held clear of non-controlled track by simply 
withholding their movement authority. The roadway worker in charge of 
the working limits must therefore render non-controlled track within 
working limits physically inaccessible to trains and equipment, other 
than those operating under the authority of that roadway worker, by 
using one or more of the provisions of this section.
    Typical examples of non-controlled track to which this section 
would apply include main tracks within yard limits where trains are 
authorized by an operating rule to move without further specific 
authority, yard tracks, and industrial side tracks. Paragraph (a) and 
corresponding subparagraphs detail the physical features that may be 
used to block access to non-controlled track within working limits.
    Paragraph (b) provides the restrictions under which trains and 
roadway maintenance machines will be allowed to operate within working 
limits. The intent is that the roadway worker in charge will be able to 
communicate with a train while it is within the working limits, and to 
control its movement to prevent conflicts between trains, machines and 
roadway workers.
    The requirement that trains move at restricted speed in working 
limits unless otherwise authorized by the roadway worker in charge is 
intended as a fail-safe provision to afford the highest level of safety 
in the absence of authority for higher speed. FRA does not contemplate, 
nor would it condone, a situation in which a roadway worker could 
authorize a higher speed for a train than would be otherwise permitted 
by the operating rules and instructions of the railroad. Paragraph (c) 
merely prohibits other locomotives from being within these established 
working limits.

19. Train Approach Warning Provided by Watchmen/lookouts: Sec. 214.329

    Section 214.329 establishes the procedures for on track safety of 
groups that utilize train approach warning. A reference to the 
definition of train approach warning would be useful to the 
understanding of this section. Section 214.329 specifies the 
circumstances and the manner in which roadway work groups may use this 
method of on-track safety. Prescribed here is the minimum amount of 
time for roadway workers to retreat to a previously arranged place of 
safety (usually designated during job briefing), the duties of the 
watchman/lookout and the fundamental characteristics of train approach 
warning communication.
    This 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.
    The rule does not include a provision for train approach warning by 
any means other than the use of watchmen/lookouts. FRA is not aware of 
any other means of effectively performing this function with the 
requisite reliability, and will not place requirements for an untried 
system in this rule. However, the Advisory Committee report states that 
``FRA will incorporate a near-term time-specific requirement to utilize 
on-track personal warning systems for roadway workers working alone 
under any conditions not requiring positive protection.'' FRA realizes 
that the technological advancements incorporated in ATCS, PTC or PTS 
might in the future provide another method of establishing on-track 
safety in compliance with this subpart. Although such technology is not 
specifically provided for in the current rule, opportunities to employ 
advancements in this area will be handled pursuant to the waiver 
process. FRA will therefore be most interested in knowing when such 
systems are developed, tested, and proven reliable.

20. Definite Train Location: Sec. 214.331

    Section 214.331 describes a system of on-track safety which 
provides roadway workers with information as to the earliest times at 
which trains may leave certain stations, having been restricted at 
those stations by the train dispatcher or control operator. This form 
of on-track safety is called Definite Train Location. A reference to 
its definition is helpful to distinguish it from an informational 
lineup of trains, which is addressed in Sec. 214.333.
    Paragraph (a) limits the use of definite train location for on-
track safety by Class I railroads and Commuter railroads to track where 
such a system was already in use on the effective date of this rule.
    Paragraph (b) requires that a Class I railroad or commuter railroad 
using definite train location system must phase its use out according 
to a schedule submitted to FRA with that railroad's on-track safety 
program.
    Paragraph (c) establishes that definite train location can be used 
on certain subdivisions owned by railroads other than Class I and 
Commuter railroads under certain specified conditions. These conditions 
include whether the system was in use before the effective date of this 
rule, or whether the subdivision has railroad traffic density below 
certain levels specified in that section during periods when roadway 
workers are normally on and about the track. Advisory Committee members 
felt that the amount and frequency of the traffic on a particular track 
dictated whether this form of on-track safety was feasible. FRA 
therefore proposes to incorporate this factor into the rule to allow 
some short lines and regional railroads to utilize this system.
    Paragraph (d) and corresponding subparagraphs (1) through (7) set 
forth the requirements for a definite train location system and the 
qualifications

[[Page 65971]]

that a roadway worker must have before using this system as a form of 
on-track safety.

21. Informational Line-ups of Trains: Sec. 214.333

    Section 214.333 specifies conditions for the use of informational 
line-ups of trains. Some railroads have used a form of informational 
line-ups to provide on-track safety for roadway workers for many years. 
Such a procedure requires the roadway worker to have a full 
understanding of the particular procedure in use, and the physical 
characteristics of the territory in which they are working. The 
Advisory Committee addressed this issue with the following specific 
recommendation:

    The Committee realizes that line-ups are being used less as a 
form of protection in the industry and recommends that line-up use 
be further reduced, eventually discontinued and replaced with 
Positive Protection as quickly as feasible, grandfathering line-up 
systems presently in use. * * *

    Line-ups as used in this section differ from lists of trains in 
Sec. 214.331 in that line-ups need not include definite restriction as 
to the earliest times at which trains may depart stations. FRA 
therefore follows the Advisory Committee recommendation by allowing 
railroads presently using line-ups to continue doing so under 
conditions presently in effect, provided that their on-track safety 
programs that are reviewed and approved by FRA contain adequate 
provisions for safety, and a definite date for completion of phase-out.

22. On-track Safety Procedures for Roadway Work Groups: Sec. 214.335

    Section 214.335 specifies requirements for on-track safety to be 
provided for roadway work groups. Other sections of the regulation 
discuss matters affecting the group such as the different types of on-
track safety protection available to a group and the job briefing 
necessary for a group, but this section prescribes what procedures are 
required to fully comply with this subpart. The definition of roadway 
work group enables the distinction between general methods of providing 
on-track safety for groups and for individuals working alone. Examples 
of roadway work groups are a large or small track gang, a pair of 
signal maintainers, a welder and welder helper, and a survey party.
    Paragraph (a) indicates that employers shall not require or permit 
roadway work groups to foul a track unless they have established on-
track safety through working limits, train approach warning, or 
definite train location.
    The reciprocal responsibility for the roadway worker is expressed 
in Paragraph (b). He of she should not foul a track without having been 
informed by the roadway worker in charge that on-track safety is being 
provided.
    The concept of protecting roadway workers from the hazards of 
trains and other on-track equipment on adjacent tracks is also 
important in this rule. A reference to the definition of adjacent 
tracks will clarify the meaning of paragraph (c) which details the 
conditions under which train approach warning must be used on adjacent 
tracks that are not within working limits. These are conditions in 
which the risk of distraction is significant, and which require 
measures to provide on-track safety on adjacent tracks.
    The principle behind the reference to large scale maintenance or 
construction is the potential for distraction, or the possibility that 
a roadway worker or roadway maintenance machine might foul the adjacent 
track and be struck by an approaching or passing train. This issue was 
addressed in the report of the Advisory Committee with the 
recommendation:

    Before performing any work that requires Fouling the track or 
Adjacent Track(s) Positive Protection must be obtained and verified 
to be in effect by the roadway worker assigned responsibility for 
the work. Large scale track maintenance and/or renovations, such as 
but not limited to, rail and tie gangs, production in-track welding, 
ballast distribution, and undercutting, must have Positive 
Protection on Adjacent Tracks as well.

    FRA will consider the provisions made for this situation when 
reviewing each railroad's on-track safety program.
    The spacing of less than 25 feet between track centers, which 
defines adjacent tracks for the purpose of this rule, represents a 
consensus decision of the Advisory Committee. Several railroads have 
recently extended their lateral track spacing to 25 feet. Tracks spaced 
at that distance may not cause a hazard to employees in one track from 
trains and equipment moving on the other track. FRA believes that no 
purpose would be served by requiring these tracks to be again spaced at 
a slightly greater distance. Therefore, tracks spaced at 25 feet are 
not defined as adjacent tracks, but tracks spaced at a lesser distance 
will be so defined. Tracks that converge or cross will be considered as 
adjacent tracks in the zone through which their centers are less than 
25 feet apart.
    As a practical matter, FRA will apply a rule of reason to the 
precision used in measuring track centers, so that minor alignment 
deviations within the limits of the Federal Track Safety Standards (49 
CFR 213) would not themselves place such short segments of track within 
the definition of adjacent tracks.

23. On-track Safety Procedures for Lone Workers: Sec. 214.337

    Section 214.337 establishes specific on-track safety procedures for 
the lone worker. Paragraph (a) sets forth the general requirement that 
restricts the use of individual train detection to circumstances 
prescribed in this section and the corresponding on-track safety 
program of the railroad.
    Paragraph (b) represents the clear consensus of the Advisory 
Committee that a decision to not use individual train detection should 
rest solely with the lone worker, and may not be reversed by any other 
person. On the other hand, improper use of individual train detection 
where this rule or the on-track safety program of the railroad prohibit 
it would be subject to review. This provision was stated by the 
Advisory Committee as part of its Specific Recommendation 3, which part 
reads, ``All roadway workers have the absolute right to obtain positive 
protection at any time and under any circumstances if they deem it 
necessary, or to be clear of the track if adequate protection is not 
provided.''
    Paragraph (c) establishes a method of on-track safety for the lone 
worker, in which the roadway worker is capable of visually detecting 
the approach of a train and moving to a previously determined location 
of safety at least 15 seconds before the train arrives. A reference to 
the definition of individual train detection is useful to understand 
this concept.
    It is important to note that the Advisory Committee decided that 
the use of individual train detection is appropriate only in limited 
circumstances. FRA has therefore drafted this section to prescribe 
strictly limited circumstances in which an individual may foul a track 
outside of working limits while definitely able to detect the approach 
of a train or other on-track equipment in ample time to move to a place 
of safety. This safety method requires the lone worker to be in a state 
of heightened awareness, since no other protection system will be in 
place to prevent one from being struck by a train or other on-track 
equipment. The corresponding subparagraphs to paragraph (c) provide 
detailed requirements for the use of this form of on-track safety.
    Paragraph (f) prescribes the concept of a written Statement of On-
track safety, prepared by the lone roadway worker. The reasoning behind 
this requirement

[[Page 65972]]

is to assist the roadway worker in focusing on the nature of the task, 
the risks associated with the task, and the form of on-track safety 
necessary to safely carry out assigned duties.

24. Audible Warning from Trains: Sec. 214.339

    Section 214.339 requires audible warning from locomotives before 
trains approach roadway workers. The implementation of this requirement 
will necessitate railroad rules regarding notification to trains that 
roadway workers are on or about the track. This notification could take 
the form of portable whistle posts, train movement authorities, or 
highly visible clothing to identify roadway workers and increase their 
visibility. This section is not optional for a railroad, and FRA 
intends that this provision covers the same subject matter as that of 
any state or local restrictions on the sounding of locomotive whistles.

25. Roadway Maintenance Machines: Sec. 214.341

    Section 214.341 addresses specific issues concerning roadway 
maintenance machines that need to be included in individual railroad 
program submissions. FRA decided to address the hazards associated with 
these machines separately from those associated with trains, as the 
nature of the hazard is different. Referencing the definition of this 
term is a good place to start to understand this section. Roadway 
maintenance machines are devices, the characteristics or use of which 
are unique to the railroad environment. The term includes both on-track 
and off-track machines. A roadway maintenance machine need not have a 
position for the operator on the machine nor need it have an operator 
at all; it could operate automatically, or semi-automatically.
    This provision excludes hand-powered devices in order to 
distinguish between hand tools which are essentially portable, and 
devices which either are larger, move faster, or produce more noise 
than hand tools. Hand-held power tools are not included in the 
definition, but because of the noise they produce, and because of the 
attention that must be paid to their safe operation they are addressed 
specifically in Sec. 214.337, On-track safety for lone workers.
    Examples of devices covered by this section include, but are not 
limited to, crawler and wheel tractors operated near railroad tracks, 
track motor cars, ballast regulators, self-propelled tampers, hand-
carried tampers with remote power units, powered cranes of all types, 
highway-rail cars and trucks while on or near tracks, snow plows-self 
propelled and pushed by locomotives, spreader-ditcher cars, locomotive 
cranes, electric welders, electric generators, air compressors--on-
track and off-track.
    Roadway maintenance machines have a wide variety of configurations 
and characteristics, and new types are being developed regularly. Each 
type presents unique hazards and necessitates unique accident 
prevention measures. Despite the wide diversity of the subject matter, 
FRA attempted to provide some guidance for the establishment of on-
track safety when using roadway maintenance machines.
    FRA believes that it is most effective to promulgate a general 
requirement for on-track safety around roadway maintenance machines, 
and require that the details be provided by railroad management, 
conferring with their employees, and industry suppliers. Several 
railroads have adopted comprehensive rules that accommodate present and 
future machine types, as well as their own operating requirements. FRA 
has seen the text of such rules, as well as witnessed their application 
and believes that they can set examples for other railroads. The 
requirement for issuance of on-track safety procedures for various 
types of roadway maintenance machines may be met by general procedures 
that apply to a group of various machines, supplemented wherever 
necessary by any specific requirements associated with particular types 
or models of machines.

26. Training and Qualification, General: Sec. 214.343

    Section 214.343 requires that each roadway worker be given on-track 
safety training once every calendar year. Adequate training is integral 
to any safety program. Hazards exist along a railroad, not all of which 
are obvious through the application of common sense without experience 
or training. An employee who has not been trained to protect against 
those hazards presents a significant risk to both himself or herself 
and others.
    Roadway workers can be qualified to perform various duties, based 
on their training and demonstrated knowledge. Training will vary 
depending on the designation of a roadway worker. Furthermore, roadway 
workers should generally know the designations of others in their 
group, so that proper on-track safety protection arrangements can be 
made. Written or electronic records must be kept of these 
qualifications, available for inspection and photocopying by the 
Administrator.
    The term ``demonstrated proficiency'' is used in this and other 
sections relative to employee qualification in a broad sense to mean 
that the employee being qualified would show to the employer 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 in accordance with the requirements of this 
subpart.

27. Training for All Roadway Workers: Sec. 214.345

    Section 214.345 represents the basic level of training required of 
all roadway workers who work around moving railroad trains and on-track 
equipment. All persons subject to this rule must have this training. 
This basic level of training is required in addition to any specialized 
training required for particular functions called for in Secs. 214.347 
through 214.355. Any testing required to demonstrate qualification need 
not be written, because the requirements can be fulfilled by a 
practical demonstration of ability and understanding.

28. Training and Qualification for Lone Workers: Sec. 214.347

    Section 214.347 requires a higher degree of qualification, as the 
lone worker is fully responsible for his or her own protection.

29. Training and Qualification of Watchmen/Lookouts: Sec. 214.349

    Section 214.349 details the standards for qualification of a 
lookout, who by definition is responsible for the protection of others. 
The definition of watchman/lookout is useful to understand the 
functions of roadway workers discussed in this section. Watchmen/
lookouts must be able to perform the proper actions in the most timely 
manner without any chance of error in order to provide proper 
protection for those who are placed in their care.

30. Training and Qualification of Flagmen: Sec. 214.351

    Section 214.351 requires that flagmen be qualified on the operating 
rules of the railroad on which they are working. Referencing the 
definition of flagman would be useful to identify the class of

[[Page 65973]]

roadway workers discussed in this section. Generally, flagmen are 
already required to be qualified on the operating rules that apply to 
their work. Flagging is an exacting procedure, and a flagman must be 
ready to act properly at all times in order to provide proper 
protection for those under his care. The distinction between flagmen 
and watchmen/lookouts should be noted, in that flagmen function to 
restrict or stop the movement of trains, while watchmen/lookouts detect 
the approach of trains and provide warning thereof to other roadway 
workers.

31. Training and Qualification of Roadway Workers Who Provide On-Track 
Safety for Roadway Work Groups: Sec. 214.353

    Section 214.353 details training standards applicable to the 
roadway worker who is qualified to provide on-track safety for roadway 
work groups. This roadway worker has the most critical responsibilities 
under this subpart. This individual must be able to apply the proper 
on-track safety rules and procedures in various circumstances, to 
communicate with other railroad employees regarding on-track safety 
procedures, and to supervise other roadway workers in the performance 
of their on-track safety responsibilities.
    This section is unique in this subpart in requiring a recorded 
examination as part of the qualification process. This requirement 
reflects the additional responsibility of this position. The recorded 
examination might be written, or it might be, for example, a computer 
file with the results of an interactive training course.

32. Training and Qualification in On-Track Safety for Operators of 
Roadway Maintenance Machines: Sec. 214.355

    Section 214.355 requires training for those roadway workers 
operating roadway maintenance machines. As noted earlier, there is a 
wide variety of equipment requiring specific knowledge. However, FRA 
determined that establishing minimum qualifications closely associated 
with the type of machine to be operated, and the circumstances and 
conditions under which it is to be operated, was necessary.

33. Appendix A: Penalty Schedule

    The revision to Appendix A includes a penalty schedule which 
establishes civil penalty amounts that for assessment when specific 
provisions of this subpart are violated. This penalty schedule 
constitutes a statement of FRA enforcement policy.

Environmental Impact

    FRA has evaluated these regulations in accordance with its 
procedures for ensuring full consideration of the potential 
environmental impacts of FRA actions, as required by the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.) and related 
directives. These regulations meet the criteria that establish this as 
a non-major action for environmental purposes.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures. It is considered to be significant under both Executive 
Order 12866 and DOT policies an procedures (44 FR 11034; February 26, 
1979). FRA has prepared and placed in the docket a regulatory analysis 
addressing the economic impact of the rule. Document inspection and 
copying facilities are available at 1120 Vermont Avenue, 7th Floor, 
Washington, D.C. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Federal Railroad Administration, 400 Seventh Street, S.W., Room 8201, 
Washington, D.C. 20590.
    Consistent with the mandate of Executive Order 12866 for regulatory 
reform, FRA conducted a Negotiated Rulemaking which provided the basis 
for the proposed and final rules. This collaborative effort included 
representatives from the railroad industry and railroad labor, along 
with an agency representative as members on a Federal Advisory 
Committee. This Advisory Committee held several negotiation sessions 
throughout the past year to reach consensus on the concepts that this 
proposed rule would embody. As envisioned by regulatory reform, public 
participation was encouraged by holding open Advisory Committee 
meetings. This negotiated Rulemaking's success has clearly met many of 
the objectives highlighted in this Executive Order.
    As part of the regulatory impact analysis the FRA has assessed 
quantitative measurements of costs and benefits expected from the 
adoption of the final rule. Over a ten year period, the NPV of the 
estimated quantifiable societal benefits is $88.1 million, and the NPV 
of the estimated societal quantified costs is $228.63 million.
    The NPV of major benefits anticipated from adopting the final rule 
include:
     $11.9 million from averted roadway worker injuries; and
     $62 million from averted roadway workers fatalities (a 
statistical estimation of 32.6 lives saved).
    The NPV of major costs (including estimated paperwork burdens) over 
the ten year period expected to accrue from adopting the final rule 
include:
     $26 million for additional dispatching resources;
     $47 million for watchmen/lookouts;
     $22 million for other forms of positive protection;
     $63 million for job briefings; and
     $53 million for the various types of roadway training.
    Additionally, FRA anticipates other qualitative benefits accruing 
from the final rule which are not factored into the quantified cost 
analysis that could be significant. These non-quantified benefits 
include potential worker productivity increases, a possible increase in 
the capacity or volume of some rail lines, and an improved employee 
morale.
    FRA's quantified cost estimate includes time allotted for daily job 
briefings. Many railroads currently conduct job briefings and others 
have allotted the time for such briefings. FRA contends that the rule 
will structure time already allotted or spent in job briefings. 
Although FRA considered this 2 minute briefing a cost and included it 
within the quantified cost calculations, it is conceivable that 
structuring the existing job briefing time actually imposes very little 
additional cost. The job briefing requirement essentially mandates the 
specific information to be communicated during briefings that would be 
held, even in the absence of this rule.
    FRA's regulatory impact analysis finds the final rule to be cost 
justified based on the values associated with the safety benefits, and 
the additional qualitative benefits identified. The recommendation of 
the Roadway Worker Federal Advisory Committee that FRA adopt this rule 
reflects the consensus of the rail labor and management representatives 
on the committee that the final rule is beneficial.

Federalism Implications

    This rule has been analyzed in accordance with the principles of 
Executive Order 12612 (``Federalism''). As noted previously, there are 
potential preemption issues resulting from a provision of this rule, 
requiring audible warning before entering work sites. Various States 
and local authorities have ``whistle bans'' preventing railroads from 
sounding whistles or ringing locomotive bells while operating through 
those communities. FRA

[[Page 65974]]

acknowledges an impact on scattered States and localities throughout 
the country, depending on the time of day and the frequency with which 
track maintenance occurs. However, these measures are necessary to 
protect roadway workers from possible death and injury. Sufficient 
Federalism implications have been identified to warrant the preparation 
of a Federalism Assessment and it has been placed in the docket. 
Document inspection and copying facilities are located at 1120 Vermont 
Avenue, 7th Floor, Washington, D.C. Photocopies may also be obtained by 
submitting written requests to the FRA Docket Clerk at Office of Chief 
Counsel, Federal Railroad Administration, 400 Seventh Street, S.W., 
Room 8201, Washington, D.C. 20590.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of final rules to assess their impact on small 
entities. FRA's assessment on small entities can be found in Appendix B 
of the final rule's Regulatory Impact Analysis, located in the docket. 
After consultation with the Office of Advocacy, Small Business 
Administration (SBA), FRA made the determination to use the Surface 
Transportation Board's (STB) classification of Class III railroads as 
representing small entities. This is a revenue based classification 
where Class III railroads earn less than $40 million per annum. Both 
FRA and the industry routinely use the STB classifications for data 
collection and regulation. By using the Class III classification, FRA 
is capturing most railroads that would be defined by the SBA as small 
businesses.
    FRA certifies this rule is not expected to have a significant 
economic impact on a substantial number of small entities. There are no 
small government jurisdictions affected by this regulation. 
Approximately 455 small entities will be impacted. However, the actual 
burden on most of these railroads is limited because of the slower and 
simpler operation of Class III railroads.
    Entities that are not subject to this rule include railroads that 
do not operate on the general system of railroad transportation, due to 
FRA's current exercise of its jurisdiction. 49 CFR Part 209, Appendix 
A. FRA's jurisdictional approach, greatly reduces the number of 
tourist, scenic, historic, and excursion railroads that are subject to 
this rule and its associated burdens. FRA estimates that approximately 
180 small entities will be exempted from this regulation, since they do 
not operate on the general system.
    In general, the requirements for this rule can be met with minimal 
effort by most small railroads. The requirements and burdens for this 
rule are focused around the performance of work on or near tracks that 
are live or adjacent to live tracks. The ability to perform track 
related maintenance on track(s) that are taken out of service is 
inversely related to the railroad's (or the line's) volume. Most small 
railroads have a traffic volume low enough to avoid the burdens that 
have higher costs.
    A majority of the burdens from this regulation occur only when 
roadway risks are present. For many of the small railroads this type of 
work is performed on track that has been rendered out of use, or during 
time periods where there is no traffic flow. Therefore, a small 
railroad that does not perform track related maintenance or inspections 
on tracks that are under traffic or adjacent to tracks under traffic, 
will have very little burden at all from this rule. Essentially, these 
railroads perform all or a majority of their track maintenance when the 
roadway hazards are not present.
    FRA has estimated that the average burden of this regulation per 
roadway worker is $630 Net Present Value (NPV) per year. However, 
forty-four percent of the total costs of this regulation are not likely 
to affect small railroads. In addition, the affected small entities 
represent less than 3 percent of the employment in the railroad 
industry. Therefore, FRA estimates that this regulation will burden a 
small railroad an average amount of $350 NPV per roadway worker, per 
year, almost half the burden estimated for the industry as a whole.

Small Business Regulatory Enforcement Fairness Act of 1996

    Pursuant to Section 312 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (P.L. 104-121), FRA will issue a Small 
Entity Compliance Guide to summarize the requirements of this rule. The 
Guide will be made available to all affected small entities to assist 
them in understanding the actions necessary to comply with the rule. 
The Guide will in no way alter the requirements of the rule, but will 
be a tool to assist small entities in the day-to-day application of 
those requirements.

Paperwork Reduction Act

    The Federal Railroad Administration may not conduct or sponsor, and 
the respondent is not required to comply with an information collection 
requirement that has been extended, revised, or implemented on or after 
October 1, 1995, unless it displays a currently valid Office of 
Management and Budget (OMB) control number. In accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.), the 
information collection requirements in 49 CFR 214, Subpart C 
established in this publication have been approved by OMB and assigned 
OMB approval number 2130-0539.
    The time needed to complete and file the information collection 
requirements will vary by size of the railroads involved and the number 
of accidents experienced by each railroad. The sections that contain 
the new and/or revised information collection requirements and the 
estimated average time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                      Respondent         Total annual      Average time per      Total annual   
           CFR section                 universe            responses           response          burden hours   
----------------------------------------------------------------------------------------------------------------
Railroad on-track safety          620 RRs...........  65--First Year....  2,000 hrs. Class I  69,750--First Year
 programs 214.303-214.309-                            1--Subsequent       1,400 hrs. Class    250--Subsequent   
 214.341-214.307-214.311-214.331.                      Years.              II.                 Years.           
                                                                          250 hrs. Class III                    
                                                                          3,500 hrs. Blanket                    
                                                                           Class II.                            
                                                                          3,000 hrs. Blanket                    
                                                                           Class III.                           
Responsibility of individual      20 RRs............  4 Challenges year   4 hrs.............  320.              
 roadway workers--214.313.                             per railroad.                                            
Supervision and communication--   51,500 employees..  327 job briefings   2 minutes each      561,350.          
 Job Briefings--214.315-214.335.                       per year per        briefing.                            
                                                       employee.                                                
Working limits--214.319-214.325.  N/A...............  N/A...............  Usual & customary   N/A.              
                                                                           procedure no new                     
                                                                           paperwork.                           

[[Page 65975]]

                                                                                                                
Exclusive track occupancy--       8,583 employees...  700,739             40 seconds per      7,786.            
 working limits--214.321.                              authorities.        authority.                           
Foul Time Working Limit           N/A...............  N/A...............  Usual & customary   N/A.              
 Procedures--214.323.                                                      procedure no new                     
                                                                           paperwork.                           
Inaccessible Track--214.327.....  620 RRs...........  50,000 occurrences  10 minutes per      8,333.            
                                                                           occurrence.                          
Train approach warning provided   620 RRs...........  51,500 occurrences  15 seconds per      215.              
 by watchman/lookouts--214.329.                                            occurrence.                          
On-track safety procedures for    10,300 employees    2,142,400           30 seconds per      17,853.           
 lone workers--214.337.            per year.           statements.         statement.                           
Training requirements--record of  51,500 employees..  51,500 records....  2 minutes per       1,717.            
 Qualification--214.343-214.347-                                           record.                              
 214.349-214.351-214.353-214.355.                                                                               
----------------------------------------------------------------------------------------------------------------

    These estimates include the time for reviewing instructions; 
searching existing data sources; gathering and maintaining the data 
needed; and completing and reviewing the collection of information.

List of Subjects in 49 CFR Part 214

    Bridges, Occupational safety and health, Penalties, Railroad 
safety, Reporting and recordkeeping requirements.

The Final Rule

    In consideration of the foregoing, FRA amends Part 214, Title 49, 
Code of Federal Regulations as follows:

PART 214--[AMENDED]

    1. Revise the authority citation for Part 214 to read as follows:

    Authority: 49 U.S.C. Chs. 210-213; 49 CFR 1.49.

    2. Add Sec. 214.4 to read as follows:


Sec. 214.4   Preemptive effect.

    Under 49 U.S.C. 20106 (formerly section 205 of the Federal Railroad 
Safety Act of 1970 (45 U.S.C. 434)), issuance of the regulations in 
this part preempts any State law, rule, regulation, order, or standard 
covering the same subject matter, except a provision directed at an 
essentially local safety hazard that is not incompatible with this part 
and that does not unreasonably burden on interstate commerce.
    3. Amend Sec. 214.7 by removing the paragraph designations for each 
definition, removing the definition for Railroad employee or employee, 
and adding new definitions in alphabetical order to read as follows:


Sec. 214.7   Definitions.

    Adjacent tracks mean two or more tracks with track centers spaced 
less than 25 feet apart.
    Class I, Class II, and Class III have the meaning assigned by, 
Title 49 Code of Federal Regulations part 1201, General Instructions 1-
1.
    Control operator means the railroad employee in charge of a 
remotely controlled switch or derail, an interlocking, or a controlled 
point, or a segment of controlled track.
    Controlled track means track upon which the railroad's operating 
rules require that all movements of trains must be authorized by a 
train dispatcher or a control operator.
    Definite train location means a system for establishing on-track 
safety by providing roadway workers with information about the earliest 
possible time that approaching trains may pass specific locations as 
prescribed in Sec. 214.331 of this part.
    Effective securing device when used in relation to a manually 
operated switch or derail means one which is:
    (a) Vandal resistant;
    (b) Tamper resistant; and
    (c) Designed to be applied, secured, uniquely tagged and removed 
only by the class, craft or group of employees for whom the protection 
is being provided.
    Employee means an individual who is engaged or compensated by a 
railroad or by a contractor to a railroad to perform any of the duties 
defined in this part.
    Employer means a railroad, or a contractor to a railroad, that 
directly engages or compensates individuals to perform any of the 
duties defined in this part.
    Exclusive track occupancy means a method of establishing working 
limits on controlled track in which movement authority of trains and 
other equipment is withheld by the train dispatcher or control 
operator, or restricted by flagmen, as prescribed in Sec. 214.321 of 
this part.
    Flagman when used in relation to roadway worker safety means an 
employee designated by the railroad to direct or restrict the movement 
of trains past a point on a track to provide on-track safety for 
roadway workers, while engaged solely in performing that function.
    Foul time is a method of establishing working limits on controlled 
track in which a roadway worker is notified by the train dispatcher or 
control operator that no trains will operate within a specific segment 
of controlled track until the roadway worker reports clear of the 
track, as prescribed in Sec. 214.323 of this part.
    Fouling a track means the placement of an individual or an item of 
equipment in such proximity to a track that the individual or equipment 
could be struck by a moving train or on-track equipment, or in any case 
is within four feet of the field side of the near running rail.
    Inaccessible track means a method of establishing working limits on 
non-controlled track by physically preventing entry and movement of 
trains and equipment.
    Individual train detection means a procedure by which a lone worker 
acquires on-track safety by seeing approaching trains and leaving the 
track before they arrive and which may be used only under circumstances 
strictly defined in this part.
    Informational line-up of trains means information provided in a 
prescribed format to a roadway worker by the train dispatcher regarding 
movements of trains authorized or expected on a specific segment of 
track during a specific period of time.
    Lone worker means an individual roadway worker who is not being 
afforded on-track safety by another roadway worker, who is not a member 
of a roadway work group, and who is not engaged in a common task with 
another roadway worker.
    Non-controlled track means track upon which trains are permitted by 
railroad rule or special instruction to move without receiving 
authorization from a train dispatcher or control operator.

[[Page 65976]]

    On-track safety means a state of freedom from the danger of being 
struck by a moving railroad train or other railroad equipment, provided 
by operating and safety rules that govern track occupancy by personnel, 
trains and on-track equipment.
    Qualified means a status attained by an employee who has 
successfully completed any required training for, has demonstrated 
proficiency in, and has been authorized by the employer to perform the 
duties of a particular position or function.
    Railroad bridge worker or bridge worker means any employee of, or 
employee of a contractor of, a railroad owning or responsible for the 
construction, inspection, testing, or maintenance of a bridge whose 
assigned duties, if performed on the bridge, include inspection, 
testing, maintenance, repair, construction, or reconstruction of the 
track, bridge structural members, operating mechanisms and water 
traffic control systems, or signal, communication, or train control 
systems integral to that bridge.
    Restricted speed means 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.
    Roadway maintenance machine means a device powered by any means of 
energy other than hand power which is being used on or near railroad 
track for maintenance, repair, construction or inspection of track, 
bridges, roadway, signal, communications, or electric traction systems. 
Roadway maintenance machines may have road or rail wheels or may be 
stationary.
    Roadway work group means two or more roadway workers organized to 
work together on a common task.
    Roadway worker means any employee of a railroad, or of a contractor 
to a railroad, whose duties include inspection, construction, 
maintenance or repair of railroad track, bridges, roadway, signal and 
communication systems, electric traction systems, roadway facilities or 
roadway maintenance machinery on or near track or with the potential of 
fouling a track, and flagmen and watchmen/lookouts as defined in this 
section.
    Train approach warning means a method of establishing on-track 
safety by warning roadway workers of the approach of trains in ample 
time for them to move to or remain in a place of safety in accordance 
with the requirements of this part.
    Train coordination means a method of establishing working limits on 
track upon which a train holds exclusive authority to move whereby the 
crew of that train yields that authority to a roadway worker.
    Train dispatcher means the railroad employee assigned to control 
and issue orders governing the movement of trains on a specific segment 
of railroad track in accordance with the operating rules of the 
railroad that apply to that segment of track.
    Watchman/lookout means an employee who has been annually 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, fusee. 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.
    Working limits means a segment of track with definite boundaries 
established in accordance with this part upon which trains and engines 
may move only as authorized by the roadway worker having control over 
that defined segment of track. Working limits may be established 
through ``exclusive track occupancy,'' ``inaccessible track,'' ``foul 
time'' or ``train coordination'' as defined herein.
    4. Add subpart C to read as follows:

Subpart C--Roadway Worker Protection

Sec.
214.301  Purpose and scope.
214.302  Information and collection requirements.
214.303  Railroad on-track safety programs, generally.
214.305  Compliance dates.
214.307  Review and approval of individual on-track safety programs 
by FRA.
214.309  On-track safety program documents.
214.311  Responsibility of employers.
214.313  Responsibility of individual roadway workers.
214.315  Supervision and communication.
214.317  On-track safety procedures, generally.
214.319  Working limits, generally.
214.321  Exclusive track occupancy.
214.323  Foul time.
214.325  Train coordination.
214.327  Inaccessible track.
214.329  Train approach warning provided by watchmen/lookouts.
214.331  Definite train location.
214.333  Information line-ups of trains.
214.335  On-track safety procedures for roadway work groups.
214.337  On-track safety procedures for lone workers.
214.339  Audible warning from trains.
214.341  Roadway maintenance machines.
214.343  Training and qualification, general.
214.345  Training for all roadway workers.
214.347  Training and qualification for lone workers.
214.349  Training and qualification of watchmen/lookouts.
214.351  Training and qualification of flagmen.
214.353  Training and qualification of roadway workers who provide 
on-track safety for roadway work groups.
214.355  Training and qualification in on-track safety for operators 
of roadway maintenance machines.

Subpart C--Roadway Worker Protection


Sec. 214.301  Purpose and scope.

    (a) The purpose of this subpart is to prevent accidents and 
casualties caused by moving railroad cars, locomotives or roadway 
maintenance machines striking roadway workers or roadway maintenance 
machines.
    (b) This subpart prescribes minimum safety standards for roadway 
workers. Each railroad and railroad contractor may prescribe additional 
or more stringent operating rules, safety rules, and other special 
instructions that are consistent with this subpart.
    (c) This subpart prescribes safety standards related to the 
movement of roadway maintenance machines where such movements affect 
the safety of roadway workers. 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  Information and collection requirements.

    (a) The information collection requirements of this part were 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1995, Public Law 104-13, Sec. 2, 109 
Stat.163 (1995) (codified as revised at 44 U.S.C. Secs. 3501-3520), and 
are assigned OMB control number 2130-0539. FRA may not conduct or 
sponsor and a respondent is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.
    (b) The information collection requirements are found in the 
following sections: Secs. 214.303, 214.307, 214.309, 214.311, 214.313, 
214.315, 214.319, 214.321, 214.323, 214.325, 214.327, 214.329, 214.331, 
214.335, 214.341.


Sec. 214.303  Railroad on-track safety programs, generally.

    (a) Each railroad to which this part applies shall adopt and 
implement a

[[Page 65977]]

program that will afford on-track safety to all roadway workers whose 
duties are performed on that railroad. Each such program shall provide 
for the levels of protection specified in this subpart.
    (b) Each on-track safety program adopted to comply with this part 
shall include procedures to be used by each railroad for monitoring 
effectiveness of and compliance with the program.


Sec. 214.305  Compliance dates.

    Each program adopted by a railroad shall comply not later than the 
date specified in the following schedule:
    (a) For each Class I railroad (including National Railroad 
Passenger Corporation) and each railroad providing commuter service in 
a metropolitan or suburban area, March 15, 1997.
    (b) For each Class II railroad, April 15, 1997.
    (c) For each Class III railroad, switching and terminal railroad, 
and any railroad not otherwise classified, May 15, 1997.
    (d) For each railroad commencing operations after the pertinent 
date specified in this section, the date on which operations commence.


Sec. 214.307  Review and approval of individual on-track safety 
programs by FRA.

    (a) Each railroad shall notify, in writing, the Associate 
Administrator for Safety, Federal Railroad Administration, RRS-15, 400 
Seventh Street SW, 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, the address of the office at 
which the program documents are available for review and photocopying 
by representatives of the Federal Railroad Administrator, 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.
    (b) After receipt of the notification from the railroad, the 
Federal Railroad Administration will conduct a formal review of the on-
track safety program. The Federal Railroad Administration will notify 
the primary railroad contact person of the results of the review, in 
writing, whether the on-track safety program or changes to the program 
have been approved by the Administrator, and if not approved, the 
specific points in which the program or changes are deficient.
    (c) A railroad's on-track safety program will take effect by the 
established compliance dates in Sec. 214.305, without regard to the 
date of review or approval by the Federal Railroad Administration. 
Changes to a railroad's program will take effect on dates established 
by each railroad without regard to the date of review and approval by 
the Federal Railroad Administration.


Sec. 214.309  On-track safety program documents.

    Rules and operating procedures governing track occupancy and 
protection shall be maintained together in one manual and be readily 
available to all roadway workers. Each roadway worker responsible for 
the on-track safety of others, and each lone worker, shall be provided 
with and shall maintain a copy of the program document.


Sec. 214.311  Responsibility of employers.

    (a) Each employer is responsible for the understanding and 
compliance by its employees with its rules and the requirements of this 
part.
    (b) Each employer shall guarantee each employee the absolute right 
to challenge in good faith whether the on-track safety procedures to be 
applied at the job location comply with the rules of the operating 
railroad, and to remain clear of the track until the challenge is 
resolved.
    (c) Each employer shall have in place a written procedure to 
achieve prompt and equitable resolution of challenges made in 
accordance with Secs. 214.311(b) and 214.313(d).


Sec. 214.313  Responsibility of individual roadway workers.

    (a) Each roadway worker is responsible for following the on-track 
safety rules of the railroad upon which the roadway worker is located.
    (b) A roadway worker shall not foul a track except when necessary 
for the performance of duty.
    (c) Each roadway worker is responsible to ascertain that on-track 
safety is being provided before fouling a track.
    (d) Each roadway worker may refuse any directive to violate an on-
track safety rule, and shall inform the employer in accordance with 
Sec. 214.311 whenever the roadway worker makes a good faith 
determination that on-track safety provisions to be applied at the job 
location do not comply with the rules of the operating railroad.


Sec. 214.315  Supervision and communication.

    (a) When an employer assigns duties to a roadway worker that call 
for that employee to foul a track, the employer shall provide the 
employee with a job briefing that includes information on the means by 
which on-track safety is to be provided, and instruction on the on-
track safety procedures to be followed.
    (b) A job briefing for on-track safety shall be deemed complete 
only after the roadway worker 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 designated by the employer to provide on-
track safety for all members of the group. The designated person shall 
be qualified under the rules of the railroad that conducts train 
operations on those tracks to provide the protection necessary for on-
track safety of each individual in the group. The responsible person 
may be designated generally, or specifically for a particular work 
situation.
    (d) Before any member of a roadway work group fouls a track, the 
designated person providing on-track safety for the group 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. Each roadway worker 
shall again be so informed at any time the on-track safety procedures 
change during the work period. Such information shall be given to all 
roadway workers affected before the change is effective, except in 
cases of emergency. Any roadway workers who, because of an emergency, 
cannot be notified in advance shall be immediately warned to leave the 
fouling space and shall not return to the fouling space until on-track 
safety is re-established.
    (e) Each lone worker shall communicate at the beginning of each 
duty period with a supervisor or another designated employee to receive 
a 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. When 
communication channels are disabled, the job briefing shall be 
conducted as soon as possible after the beginning of the work period 
when communications are restored.


Sec. 214.317  On-track safety procedures, generally.

    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 Secs. 214.319 through 214.337 of this part.

[[Page 65978]]

Sec. 214.319  Working limits, generally.

    Working limits established on controlled track shall conform to the 
provisions of Sec. 214.321 Exclusive track occupancy, or 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. Working limits established under any 
procedure shall, in addition, conform to the following provisions:
    (a) Only a roadway worker who is qualified in accordance with 
Sec. 214.353 of this part shall establish or have control over working 
limits for the purpose of establishing on-track safety.
    (b) Only one roadway worker shall have control over working limits 
on any one segment of track.
    (c) 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 of this subpart.


Sec. 214.321  Exclusive track occupancy.

    Working limits established on controlled track through the use of 
exclusive track occupancy procedures shall comply with the following 
requirements:
    (a) The track within working limits shall be placed under the 
control of one roadway worker by either:
    (1) Authority issued to the roadway worker in charge by the train 
dispatcher or control operator who controls train movements on that 
track,
    (2) Flagmen stationed at each entrance to the track within working 
limits and instructed by the roadway worker in charge to permit the 
movement of trains and equipment into the working limits only as 
permitted by the roadway worker in charge, or
    (3) The roadway worker in charge causing fixed signals at each 
entrance to the working limits to display an aspect indicating 
``Stop.''
    (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 by the train dispatcher or control operator in charge of 
the track.
    (1) Where authority for exclusive track occupancy is transmitted 
orally, the authority shall be written as received by the roadway 
worker in charge and repeated to the issuing employee for verification.
    (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.
    (3) The train dispatcher or control operator in charge of the track 
shall make a written or electronic record of all authorities issued to 
establish exclusive track occupancy.
    (c) The extent of working limits established through exclusive 
track occupancy shall be defined by one of the following physical 
features clearly identifiable to a locomotive engineer or other person 
operating a train or railroad equipment:
    (1) A flagman with instructions and capability to hold all trains 
and equipment clear of the working limits;
    (2) A fixed signal that displays an aspect indicating ``Stop'';
    (3) A station shown in the time-table, and identified by name with 
a sign, beyond which train movement is prohibited by train movement 
authority or the provisions of a direct train control system.
    (4) A clearly identifiable milepost sign beyond which train 
movement is prohibited by train movement authority or the provisions of 
a direct train control system; or
    (5) A clearly identifiable physical location prescribed by the 
operating rules of the railroad that trains may not pass without proper 
authority.
    (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 having control over 
the working limits. Such movements shall be restricted speed unless a 
higher speed has been specifically authorized by the roadway worker in 
charge of the working limits.


Sec. 214.323  Foul time.

    Working limits established on controlled track through the use of 
foul time procedures shall comply with the following requirements:
    (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 to move into or within the working limits 
during the foul time period.
    (b) Each roadway worker to whom foul time is transmitted orally 
shall repeat the track number, 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 onto the working limits 
protected by foul time until the roadway worker who obtained the foul 
time has reported clear of the track.


Sec. 214.325  Train coordination.

    Working limits established by a roadway worker through the use of 
train coordination shall comply with the following requirements:
    (a) Working limits established by train coordination shall be 
within the segments of track or tracks upon which only one train holds 
exclusive authority to move.
    (b) The roadway worker who establishes working limits by train 
coordination shall communicate with a member of the crew of the train 
holding the exclusive authority to move, and shall determine that:
    (1) The train is visible to the roadway worker who is establishing 
the working limits,
    (2) The train is stopped,
    (3) Further movements of the train will be made only as permitted 
by the roadway worker in charge of the working limits while the working 
limits remain in effect, and
    (4) The crew of the train will not give up its exclusive authority 
to move until the working limits have been released to the train crew 
by the roadway worker in charge of the working limits.


Sec. 214.327  Inaccessible track.

    (a) Working limits on non-controlled track shall be established by 
rendering the track within working limits physically inaccessible to 
trains at each possible point of entry by one of the following 
features:
    (1) A flagman with instructions and capability to hold all trains 
and equipment clear of the working limits;
    (2) A switch or derail aligned to prevent access to the working 
limits and secured with an effective securing device by the roadway 
worker in charge of the working limits;
    (3) A discontinuity in the rail that precludes passage of trains or 
engines into the working limits;
    (4) Working limits on controlled track that connects directly with 
the inaccessible track, established by the roadway worker in charge of 
the working limits on the inaccessible track; or
    (5) A remotely controlled switch aligned to prevent access to the 
working limits and secured by the control operator of such remotely 
controlled

[[Page 65979]]

switch by application of a locking or blocking device to the control of 
that switch, when:
    (i) The control operator has secured the remotely controlled switch 
by applying a locking or blocking device to the control of the switch, 
and
    (ii) The control operator has notified the roadway worker who has 
established the working limits that the requested protection has been 
provided, and
    (iii) The control operator is not permitted to remove the locking 
or blocking device from the control of the switch until receiving 
permission to do so from the roadway worker who established the working 
limits.
    (b) Trains and roadway maintenance machines within working limits 
established by means of inaccessible track shall move only under the 
direction of the roadway worker in charge of the working limits, and 
shall move at restricted speed.
    (c) No operable locomotives or other items of on-track equipment, 
except those present or moving under the direction of the roadway 
worker in charge of the working limits, shall be located within working 
limits established by means of inaccessible track.


Sec. 214.329  Train approach warning provided by watchmen/lookouts.

    Roadway workers in a roadway work group who foul any track outside 
of working limits shall be given warning of approaching trains by one 
or more watchmen/lookouts in accordance with the following provisions:
    (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 speed authorized on that track can pass the location of the 
roadway worker.
    (b) Watchmen/lookouts assigned to provide train approach warning 
shall devote full attention to detecting the approach of trains and 
communicating a warning thereof, and shall not be assigned any other 
duties while functioning as watchmen/lookouts.
    (c) The means used by a watchman/lookout to communicate a train 
approach warning shall be distinctive and shall clearly signify to all 
recipients of the warning that a train or other on-track equipment is 
approaching.
    (d) Every roadway worker who depends upon train approach warning 
for on-track safety shall maintain a position that will enable him or 
her to receive a train approach warning communicated by a watchman/
lookout at any time while on-track safety is provided by train approach 
warning.
    (e) Watchmen/lookouts shall communicate train approach warnings by 
a means that does not require a warned employee to be looking in any 
particular direction at the time of the warning, and that can be 
detected by the warned employee regardless of noise or distraction of 
work.
    (f) Every roadway worker who is assigned the duties of a watchman/
lookout shall first be trained, qualified and designated in writing by 
the employer to do so in accordance with the provisions of 
Sec. 214.349.
    (g) Every watchman/lookout shall be provided by the employer with 
the equipment necessary for compliance with the on-track safety duties 
which the watchman/lookout will perform.


Sec. 214.331  Definite train location.

    A roadway worker may establish on-track safety by using definite 
train location only where permitted by and in accordance with the 
following provisions:
    (a) A Class I railroad or a commuter railroad may only use definite 
train location to establish on-track safety at points where such 
procedures were in use on January 15, 1997.
    (b) Each Class I or commuter railroad shall include in its on-track 
safety program for approval by FRA in accordance with Sec. 214.307 of 
this part a schedule for phase-out of the use of definite train 
location to establish on-track safety.
    (c) A railroad other than a Class I or commuter railroad may use 
definite train location to establish on-track safety on subdivisions 
only where:
    (1) Such procedures were in use on January 15, 1997, or
    (2) The number of trains operated on the subdivision does not 
exceed:
    (i) Three during any nine-hour period in which roadway workers are 
on duty, and
    (ii) Four during any twelve-hour period in which roadway workers 
are on duty.
    (d) Definite train location shall only be used to establish on-
track safety according to the following provisions:
    (1) Definite train location information shall be issued only by the 
one train dispatcher who is designated to authorize train movements 
over the track for which the information is provided.
    (2) A definite train location list shall indicate all trains to be 
operated on the track for which the list is provided, during the time 
for which the list is effective.
    (3) Trains not shown on the definite train location list shall not 
be operated on the track for which the list is provided, during the 
time for which the list is effective, until each roadway worker to whom 
the list has been issued has been notified of the train movement, has 
acknowledged the notification to the train dispatcher, and has canceled 
the list. A list thus canceled shall then be invalid for on-track 
safety.
    (4) Definite train location shall not be used to establish on-track 
safety within the limits of a manual interlocking, or on track over 
which train movements are governed by a Traffic Control System or by a 
Manual Block System.
    (5) Roadway workers using definite train location for on-track 
safety shall not foul a track within ten minutes before the earliest 
time that a train is due to depart the last station at which time is 
shown in approach to the roadway worker's location nor until that train 
has passed the location of the roadway worker.
    (6) A railroad shall not permit a train to depart a location 
designated in a definite train location list before the time shown 
therein.
    (7) Each roadway worker who uses definite train location to 
establish on-track safety must be qualified on the relevant physical 
characteristics of the territory for which the train location 
information is provided.


Sec. 214.333  Informational line-ups of trains.

    (a) A railroad is permitted to include informational line-ups of 
trains in its on-track safety program for use only on subdivisions of 
that railroad upon which such procedure was in effect on March 14, 
1996.
    (b) Each procedure for the use of informational line-ups of trains 
found in an on-track safety program shall include all provisions 
necessary to protect roadway workers using the procedure against being 
struck by trains or other on-track equipment.
    (c) Each on-track safety program that provides for the use of 
informational line-ups shall include a schedule for discontinuance of 
the procedure by a definite date.


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

    (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 Secs. 214.319, 214.321, 
213.323, 214.325, 214.327, 214.329 and 214.331 of this part.
    (b) No roadway worker who is a member of a roadway work group shall

[[Page 65980]]

foul a track without having been informed by the roadway worker 
responsible for the on-track safety of the roadway work group that on-
track safety is provided.
    (c) Roadway work groups engaged in large-scale maintenance or 
construction shall be provided with train approach warning in 
accordance with Sec. 214.327 for movements on adjacent tracks that are 
not included within working limits.


Sec. 214.337  On-track safety procedures for lone workers.

    (a) A lone worker who fouls a track while performing routine 
inspection or minor correction may use individual train detection to 
establish on-track safety only where permitted by this section and the 
on-track safety program of the railroad.
    (b) A lone worker retains an absolute right to use on-track safety 
procedures other than individual train detection if he or she deems it 
necessary, and to occupy a place of safety until such other form of on-
track safety can be established.
    (c) Individual train detection may be used to establish on-track 
safety only:
    (1) By a lone worker who has been trained, qualified, and 
designated to do so by the employer in accordance with Sec. 214.347 of 
this subpart;
    (2) While performing routine inspection and minor correction work;
    (3) On track outside the limits of a manual interlocking, a 
controlled point, or a remotely controlled hump yard facility;
    (4) Where the lone worker is able to visually detect the approach 
of a train moving at the maximum speed authorized on that track, and 
move to a previously determined place of safety, not less than 15 
seconds before the train would arrive at the location of the lone 
worker;
    (5) Where no power-operated tools or roadway maintenance machines 
are in use within the hearing of the lone worker; and
    (6) Where the ability of the lone worker to hear and see 
approaching trains and other on-track equipment is not impaired by 
background noise, lights, precipitation, fog, passing trains, or any 
other physical conditions.
    (d) The place of safety to be occupied by a lone worker upon the 
approach of a train may not be on a track, unless working limits are 
established on that track.
    (e) A lone worker using individual train detection for on-track 
safety while fouling a track may not occupy a position or engage in any 
activity that would interfere with that worker's ability to maintain a 
vigilant lookout for, and detect the approach of, a train moving in 
either direction as prescribed in this section.
    (f) A lone worker who uses individual train detection to establish 
on-track safety shall first complete a written Statement of On-track 
Safety. The Statement shall designate the limits of the track for which 
it is prepared and the date and time for which it is valid. The 
statement shall show the maximum authorized speed of trains within the 
limits for which it is prepared, and the sight distance that provides 
the required warning of approaching trains. The lone worker using 
individual train detection to establish on-track safety shall produce 
the Statement of On-track Safety when requested by a representative of 
the Federal Railroad Administrator.


Sec. 214.339  Audible warning from trains.

    Each railroad shall require that the locomotive whistle be sounded, 
and the locomotive bell be rung, by trains approaching roadway workers 
on or about the track. Such audible warning shall not substitute for 
on-track safety procedures prescribed in this part.


Sec. 214.341  Roadway maintenance machines.

    (a) Each employer shall include in its on-track safety program 
specific provisions for the safety of roadway workers who operate or 
work near roadway maintenance machines. Those provisions shall address:
    (1) Training and qualification of operators of roadway maintenance 
machines.
    (2) Establishment and issuance of safety procedures both for 
general application and for specific types of machines.
    (3) Communication between machine operators and roadway workers 
assigned to work near or on roadway maintenance machines.
    (4) Spacing between machines to prevent collisions.
    (5) Space between machines and roadway workers to prevent personal 
injury.
    (6) Maximum working and travel speeds for machines dependent upon 
weather, visibility, and stopping capabilities.
    (b) Instructions for the safe operation of each roadway machine 
shall be provided and maintained with each machine large enough to 
carry the instruction document.
    (1) No roadway worker shall operate a roadway maintenance machine 
without having been trained in accordance with Sec. 214.355.
    (2) No roadway worker shall operate a roadway maintenance machine 
without having complete knowledge of the safety instructions applicable 
to that machine.
    (3) No employer shall assign roadway workers to work near roadway 
machines unless the roadway worker has been informed of the safety 
procedures applicable to persons working near the roadway machines and 
has acknowledged full understanding.
    (c) Components of roadway maintenance machines shall be kept clear 
of trains passing on adjacent tracks. Where operating conditions permit 
roadway maintenance machines to be less than four feet from the rail of 
an adjacent track, the on-track safety program of the railroad shall 
include the procedural instructions necessary to provide adequate 
clearance between the machine and passing trains.


Sec. 214.343  Training and qualification, general.

    (a) No employer shall assign an employee to perform the duties of a 
roadway worker, and no employee shall accept such assignment, unless 
that employee has received training in the on-track safety procedures 
associated with the assignment to be performed, and that employee has 
demonstrated the ability to fulfill the responsibilities for on-track 
safety that are required of an individual roadway worker performing 
that assignment.
    (b) Each employer shall provide to all roadway workers in its 
employ initial or recurrent training once every calendar year on the 
on-track safety rules and procedures that they are required to follow.
    (c) 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.
    (d) Each employer of roadway workers shall maintain written or 
electronic records of each roadway worker qualification in effect. Each 
record shall include the name of the employee, the type of 
qualification made, and the most recent date of qualification. These 
records shall be kept available for inspection and photocopying by the 
Federal Railroad Administrator during regular business hours.

[[Page 65981]]

Sec. 214.345  Training for all roadway workers.

    The training of all roadway workers shall include, as a minimum, 
the following:
    (a) Recognition of railroad tracks and understanding of the space 
around them within which on-track safety is required.
    (b) The functions and responsibilities of various persons involved 
with on-track safety procedures.
    (c) Proper compliance with on-track safety instructions given by 
persons performing or responsible for on-track safety functions.
    (d) Signals given by watchmen/lookouts, and the proper procedures 
upon receiving a train approach warning from a lookout.
    (e) The hazards associated with working on or near railroad tracks, 
including review of on-track safety rules and procedures.


Sec. 214.347  Training and qualification for lone workers.

    Each lone worker shall be trained and qualified by the employer to 
establish on-track safety in accordance with the requirements of this 
section, and must be authorized to do so by the railroad that conducts 
train operations on those tracks.
    (a) The training and qualification for lone workers shall include, 
as a minimum, consideration of the following factors:
    (1) Detection of approaching trains and prompt movement to a place 
of safety upon their approach.
    (2) Determination of the distance along the track at which trains 
must be visible in order to provide the prescribed warning time.
    (3) Rules and procedures prescribed by the railroad for individual 
train detection, establishment of working limits, and definite train 
location.
    (4) On-track safety procedures to be used in the territory on which 
the employee is to be qualified and permitted to work alone.
    (b) Initial and periodic qualification of a lone worker shall be 
evidenced by demonstrated proficiency.


Sec. 214.349  Training and qualification of watchmen/lookouts.

    (a) The training and qualification for roadway workers assigned the 
duties of watchmen/lookouts shall include, as a minimum, consideration 
of the following factors:
    (1) Detection and recognition of approaching trains.
    (2) Effective warning of roadway workers of the approach of trains.
    (3) Determination of the distance along the track at which trains 
must be visible in order to provide the prescribed warning time.
    (4) Rules and procedures of the railroad to be used for train 
approach warning.
    (b) Initial and periodic qualification of a watchman/lookout shall 
be evidenced by demonstrated proficiency.


Sec. 214.351  Training and qualification of flagmen.

    (a) The training and qualification for roadway workers assigned the 
duties of flagmen shall include, as a minimum, the content and 
application of the operating rules of the railroad pertaining to giving 
proper stop signals to trains and holding trains clear of working 
limits.
    (b) Initial and periodic qualification of a flagman shall be 
evidenced by demonstrated proficiency.


Sec. 214.353  Training and qualification of roadway workers who provide 
on-track safety for roadway work groups.

    (a) The training and qualification of roadway workers who provide 
for the on-track safety of groups of roadway workers through 
establishment of working limits or the assignment and supervision of 
watchmen/lookouts or flagmen shall include, as a minimum:
    (1) All the on-track safety training and qualification required of 
the roadway workers to be supervised and protected.
    (2) The content and application of the operating rules of the 
railroad pertaining to the establishment of working limits.
    (3) The content and application of the rules of the railroad 
pertaining to the establishment or train approach warning.
    (4) The relevant physical characteristics of the territory of the 
railroad upon which the roadway worker is qualified.
    (b) Initial and periodic qualification of a roadway worker to 
provide on track safety for groups shall be evidenced by a recorded 
examination.


Sec. 214.355  Training and qualification in on-track safety for 
operators of roadway maintenance machines.

    (a) The training and qualification of roadway workers who operate 
roadway maintenance machines shall include, as a minimum:
    (1) Procedures to prevent a person from being struck by the machine 
when the machine is in motion or operation.
    (2) Procedures to prevent any part of the machine from being struck 
by a train or other equipment on another track.
    (3) Procedures to provide for stopping the machine short of other 
machines or obstructions on the track.
    (4) Methods to determine safe operating procedures for each machine 
that the operator is expected to operate.
    (b) Initial and periodic qualification of a roadway worker to 
operate roadway maintenance machines shall be evidenced by demonstrated 
proficiency.

Appendix A to Part 214 [Amended]

    5. Amend Appendix A to Part 214 by adding the provisions of this 
subpart C into the table as set forth below.

           Appendix A to Part 214--Schedule of Civil Penalties          
------------------------------------------------------------------------
                    Section                      Violation      Wilful  
------------------------------------------------------------------------
                                                                        
*                  *                  *                  *              
  Subpart C-- Roadway Worker Protection Rule                            
                                                                        
214.303  Railroad on-track safety programs,                             
 generally:                                                             
    (a)  Failure of a railroad to implement an                          
     On-track Safety Program..................       10,000       20,000
    (b)  On-track Safety Program of a railroad                          
     includes no internal monitoring procedure        5,000       10,000
214.305  Compliance Dates:                                              
    Failure of a railroad to comply by the                              
     specified dates..........................        5,000       10,000
214.307  Review and approval of individual on-                          
 track safety programs by FRA:                                          
    (a)(i)  Failure to notify FRA of adoption                           
     of On-track Safety Program...............        1,000        5,000
    (ii)  Failure to designate primary person                           
     to contact for program review............        1,000        2,000
214.309  On-track safety program documents:                             
    (1)  On-track Safety Manual not provided                            
     to prescribed employees..................        2,000        5,000
    (2)  On-track Safety Program documents                              
     issued in fragments......................        2,000        5,000
214.311  Responsibility of employers:                                   
    (b)  Roadway worker required by employer                            
     to foul a track during an unresolved                               
     challenge................................        5,000       10,000
    (c)  Roadway workers not provided with                              
     written procedure to resolve challenges                            
     of on-track safety procedures............        5,000       10,000

[[Page 65982]]

                                                                        
214.313  Responsibility of individual roadway                           
 workers:                                                               
    (b)  Roadway worker fouling a track when                            
     not necessary in the performance of duty.  ...........        1,000
    (c)  Roadway worker fouling a track                                 
     without ascertaining that provision is                             
     made for on-track safety.................  ...........        1,500
    (d)  Roadway worker failing to notify                               
     employer of determination of improper on-                          
     track safety provisions..................  ...........        3,000
214.315  Supervision and communication:                                 
    (a)  Failure of employer to provide job                             
     briefing.................................        2,000       10,000
    (b)  Incomplete job briefing..............        2,000        5,000
    (c)(i)  Failure to designate roadway                                
     worker in charge of roadway work group...        2,000        5,000
    (c)(ii)  Designation of more than one                               
     roadway worker in charge of one roadway                            
     work group...............................        1,000        2,000
    (c)(iii)  Designation of non-qualified                              
     roadway worker in charge of roadway work                           
     group....................................        3,000        6,000
    (d)(i)  Failure to notify roadway workers                           
     of on-track safety procedures in effect..        3,000        6,000
    (d)(ii)  Incorrect information provided to                          
     roadway workers regarding on-track safety                          
     procedures in effect.....................        3,000        6,000
    (d)(iii)  Failure to notify roadway                                 
     workers of change in on-track safety                               
     procedures...............................        3,000        6,000
    (e)(i)  Failure of lone worker to                                   
     communicate with designated employee for                           
     daily job briefing.......................  ...........        1,500
    (e)(ii)  Failure of employer to provide                             
     means for lone worker to receive daily                             
     job briefing.............................        3,000        6,000
214.317  On-track safety procedures,                                    
 generally:                                                             
    On-track safety rules conflict with this                            
     part.....................................        5,000       10,000
214.319  Working limits, generally:                                     
    (a)  Non-qualified roadway worker in                                
     charge of working limits.................        5,000       10,000
    (b)  More than one roadway worker in                                
     charge of working limits on the same                               
     track segment............................        2,000        5,000
    (c)(1)  Working limits released without                             
     notifying all affected roadway workers...        5,000       10,000
    (c)(2)  Working limits released before all                          
     affected roadway workers are otherwise                             
     protected................................        5,000       10,000
214.321  Exclusive track occupancy:                                     
    (b)  Improper transmission of authority                             
     for exclusive track occupancy............        2,000        5,000
    (b)(1)  Failure to repeat authority for                             
     exclusive track occupancy to issuing                               
     employee.................................  ...........        1,500
    (b)(2)  Failure to retain possession of                             
     written authority for exclusive track                              
     occupancy................................  ...........        1,000
    (b)(3)  Failure to record authority for                             
     exclusive track occupancy when issued....  ...........        2,000
    (c)  Limits of exclusive track occupancy                            
     not identified by proper physical                                  
     features.................................        2,000        4,000
    (d)(1)  Movement authorized into limits of                          
     exclusive track occupancy without                                  
     authority of roadway worker in charge....        5,000       10,000
    (d)(2)  Movement authorized within limits                           
     of exclusive track occupancy without                               
     authority of roadway worker in charge....        5,000       10,000
    (d)(3)  Movement within limits of                                   
     exclusive track occupancy exceeding                                
     restricted speed without authority of                              
     roadway worker in charge.................        5,000       10,000
214.323  Foul time:                                                     
    (a)  Foul time authority overlapping                                
     movement authority of train or equipment.        5,000       10,000
    (b)  Failure to repeat foul time authority                          
     to issuing employee......................  ...........        1,500
214.325  Train coordination:                                            
    (a)  Train coordination limits established                          
     where more than one train is authorized                            
     to operate...............................        1,500        4,000
    (b)(1)  Train coordination established                              
     with train not visible to roadway worker                           
     at the time..............................  ...........        1,500
    (b)(2)  Train coordination established                              
     with moving train........................  ...........        1,500
    (b)(3)  Coordinated train moving without                            
     authority of roadway worker in charge....        2,000        5,000
    (b)(4)  Coordinated train releasing                                 
     movement authority while working limits                            
     are in effect............................        3,000        6,000
214.327  Inaccessible track:                                            
    (a)  Improper control of entry to                                   
     inaccessible track.......................        3,000        6,000
    (a)(5)  Remotely controlled switch not                              
     properly secured by control operator.....        3,000        6,000
    (b)  Train or equipment moving within                               
     inaccessible track limits without                                  
     permission of roadway worker in charge...        3,000        6,000
    (c)  Unauthorized train or equipment                                
     located within inaccessible track limits.        2,000        5,000
214.329  Train approach warning provided by                             
 watchmen/lookouts:                                                     
    (a)  Failure to give timely warning of                              
     approaching train........................  ...........        5,000
    (b)(1)  Failure of watchman/lookout to                              
     give full attention to detecting approach                          
     of train.................................  ...........        3,000
    (b)(2)  Assignment of other duties to                               
     watchman/lookout.........................        3,000        5,000
    (c)  Failure to provide proper warning                              
     signal devices...........................        2,000        5,000
    (d)  Failure to maintain position to                                
     receive train approach warning signal....  ...........        2,000
    (e)  Failure to communicate proper warning                          
     signal...................................        1,500        3,000
    (f)(1)  Assignment of non-qualified person                          
     as watchman/lookout......................        3,000        5,000
    (f)(2)  Non-qualified person accepting                              
     assignment as watchman/lookout...........  ...........        1,500
    (g)  Failure to properly equip a watchman/                          
     lookout..................................        2,000        4,000
214.331  Definite train location:                                       
    (a)  Definite train location established                            
     where prohibited.........................        3,000        5,000
    (b)  Failure to phase out definite train                            
     location by required date................        3,000        5,000
    (d)(1)  Train location information issued                           
     by unauthorized person...................        2,000        5,000
    (d)(2)  Failure to include all trains                               
     operated on train location list..........        3,000        5,000
    (d)(5)  Failure to clear a by ten minutes                           
     at the last station at which time is                               
     shown....................................  ...........        2,000
    (d)(6)  Train passing station before time                           
     shown in train location list.............        3,000        5,000
    (d)(7)  Non-qualified person using                                  
     definite train location to establish on-                           
     track safety.............................        2,000        3,000
214.333  Informational line-ups of trains:                              
    (a)  Informational line-ups of trains used                          
     for on-track safety where prohibited.....        3,000        5,000
    (b)  Informational line-up procedures                               
     inadequate to protect roadway workers....        5,000       10,000
    (c)  Failure to discontinue informational                           
     line-ups by required date................        5,000       10,000
214.335  On-track safety procedures for                                 
 roadway work groups :                                                  
    (a)  Failure to provide on-track safety                             
     for a member of a roadway work group.....        3,000        5,000

[[Page 65983]]

                                                                        
    (b)  Member of roadway work group fouling                           
     a track without authority of employee in                           
     charge...................................  ...........        2,000
    (c)  Failure to provide train approach                              
     warning or working limits on adjacent                              
     track where required.....................        3,000        5,000
214.337  On-track safety procedures for lone                            
 workers:                                                               
    (b)  Failure by employer to permit                                  
     individual discretion in use of                                    
     individual train detection...............        5,000       10,000
    (c)(1)  Individual train detection used by                          
     non-qualified employee...................        2,000        4,000
    (c)(2)  Use of individual train detection                           
     while engaged in heavy or distracting                              
     work.....................................  ...........        2,000
    (c)(3)  Use of individual train detection                           
     in controlled point or manual                                      
     interlocking.............................  ...........        2,000
    (c)(4)  Use of individual train detection                           
     with insufficient visibility.............  ...........        2,000
    (c)(5)  Use of individual train detection                           
     with interfering noise...................  ...........        2,000
    (c)(6)  Use of individual train detection                           
     while a train is passing.................  ...........        3,000
    (d)  Failure to maintain access to place                            
     of safety clear of live tracks...........  ...........        2,000
    (e)  Lone worker unable to maintain                                 
     vigilant lookout.........................  ...........        2,000
    (f)(1)  Failure to prepare written                                  
     statement of on-track safety.............  ...........        1,500
    (f)(2)  Incomplete written statement of on-                         
     track safety.............................  ...........        1,000
    (f)(3)  Failure to produce written                                  
     statement of on-track safety to FRA......  ...........        1,500
214.339  Audible warning from trains:                                   
    (a)  Failure to require audible warning                             
     from trains..............................        2,000        4,000
    (b)  Failure of train to give audible                               
     warning where required...................        1,000        3,000
214.341  Roadway maintenance machines:                                  
    (a)  Failure of on-track safety program to                          
     include provisions for safety near                                 
     roadway maintenance machines.............        3,000        5,000
    (b)  Failure to provide operating                                   
     instructions.............................        2,000        4,000
    (b)(1)  Assignment of non-qualified                                 
     employee to operate machine..............        2,000        5,000
    (b)(2)  Operator unfamiliar with safety                             
     instructions for machine.................        2,000        5,000
    (b)(3)  Roadway worker working with                                 
     unfamiliar machine.......................        2,000        5,000
    (c)  Roadway maintenance machine not clear                          
     of passing trains........................        3,000        6,000
214.343  Training and qualification, general:                           
    (a)(1)  Failure of railroad program to                              
     include training provisions..............        5,000       10,000
    (a)(2)  Failure to provide initial                                  
     training.................................        3,000        6,000
    (b)  Failure to provide annual training...        2,500        5,000
    (c)  Assignment of non-qualified railroad                           
     employees to provide on-track safety.....        4,000        8,000
    (d)(1)  Failure to maintain records of                              
     qualifications...........................        2,000        4,000
    (d)(2)  Incomplete records of                                       
     qualifications...........................        1,000        3,000
    (d)(3)  Failure to provide records of                               
     qualifications to FRA....................        2,000        4,000
214.345  Training for all roadway workers                               
214.347  Training and qualification for lone                            
 workers                                                                
214.349  Training and qualification of                                  
 watchmen/lookouts                                                      
214.351  Training and qualification of flagmen                          
214.353  Training and qualification of roadway                          
 workers who provide on-track safety for                                
 roadway work groups                                                    
214.355  Training and qualification in on-                              
 track safety for operators of roadway                                  
 maintenance machines                                                   
------------------------------------------------------------------------

    Issued this 6th day of December, 1996
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
[FR Doc. 96-31533 Filed 12-13-96; 8:45 am]
BILLING CODE 4910-06-P