94-20078. Roadway Worker Protection  

  • [Federal Register Volume 59, Number 158 (Wednesday, August 17, 1994)]
    [Unknown Section]
    [Page 0]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 94-20078]
    
    
    [[Page Unknown]]
    
    [Federal Register: August 17, 1994]
    
    
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    DEPARTMENT OF TRANSPORTATION
    
    Federal Railroad Administration
    
    49 CFR Part 214
    
    [FRA Docket No. RSOR 13, Notice No. 1]
    RIN 2130-AA86
    
     
    
    Roadway Worker Protection
    
    AGENCY: Federal Railroad Administration (FRA); DOT.
    
    ACTION: Notice of Proposal to Form a Negotiated Rulemaking Advisory 
    Committee and Request for Representation.
    
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    SUMMARY: FRA proposes to establish a Negotiated Rulemaking Advisory 
    Committee under the Negotiated Rulemaking Act of 1990 and the Federal 
    Advisory Committee Act to develop a recommended rule concerning the 
    protection of railroad roadway workers. The Committee would adopt its 
    recommendations through a negotiation process. The Committee would be 
    composed of persons who represent the interests affected by the rule, 
    such as labor organizations, railroads, railroad associations, 
    contractor associations, and the government. FRA invites interested 
    parties to submit nominations and applications for membership on the 
    Committee.
    
    DATES: FRA must receive written comments and requests for 
    representation or membership by September 16, 1994.
    
    ADDRESSES: All written comments should be submitted in triplicate to 
    the Docket Clerk, Office of Chief Counsel, FRA, 400 Seventh Street, 
    S.W., Room 8201, Washington, D. C. 20590.
    
    FOR FURTHER INFORMATION CONTACT: Christine Beyer, Trial Attorney, 
    Office of Chief Counsel, FRA, 400 Seventh Street, S.W., Room 8201, 
    Washington, D. C. 20590 (Telephone: 202-366-0621).
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background
    
    (A) History
    
        The Rail Safety Enforcement and Review Act, Pub.L. No. 102-365, 106 
    Stat. 972, enacted September 3, 1992, required FRA to review its track 
    safety standards and revise them based on data presented during that 
    review. Among the topics to be addressed was ``an evaluation of 
    employee safety.'' FRA issued an Advance Notice of Proposed Rulemaking 
    (ANPRM) on November 16, 1992 (57 FR 54038) to announce the opening of a 
    proceeding to amend the Federal Track Safety Standards (49 CFR Part 
    213). That ANPRM addressed the general topics to be considered, 
    including standards for railroad track itself, and protecting 
    maintenance-of-way and other non-operating railroad employees from the 
    hazards of moving railroad equipment.
        As part of that proceeding, FRA conducted a series of workshops to 
    obtain the industry's views on the need for and substance of any 
    changes to FRA's regulations. One such workshop session, announced in 
    Notice No. 4 of that ANPRM issued on February 18, 1993 (58 FR 8928), 
    and held in Washington, D.C. on March 31, 1993 addressed specifically 
    the issue of protection of roadway workers from being struck by moving 
    trains and equipment. Since that workshop, FRA has received petitions 
    for emergency orders and rulemaking on the topic from the Brotherhood 
    of Maintenance-of-Way Employees and the Brotherhood of Railroad 
    Signalmen.
        FRA originally planned to include protection from moving trains and 
    moving equipment into a new Subpart G of 49 CFR Part 213, but it will 
    now be considered as part of 49 CFR Part 214, Railroad Workplace 
    Safety. Given FRA's desire to address this issue on an expedited basis, 
    and because it relates more closely to workplace safety than to track 
    standards, this proceeding is now separated from FRA Docket No. RST-90-
    1 and has been placed in FRA Docket No. RSOR 13. Items related to this 
    subject which were submitted as part of Docket No. RST-90-1 will be 
    considered as part of this proceeding, as will the transcript of the 
    public workshop on March 31, 1993.
    
    (B) Purpose
    
        FRA is taking this action for the purpose of reducing the risk of 
    death or injury railroad roadway workers face when struck by moving 
    trains and railroad equipment. Since 1989, 21 roadway workers have been 
    fatally injured by moving trains and equipment. Eight workers were 
    struck by trains while performing work, three were struck by trains on 
    track adjacent to the work location, five stepped into a train's path, 
    and five were struck by maintenance-of-way equipment. These fatalities 
    are among the following crafts: signal maintainers, machine operators, 
    welders, track foremen, track inspectors, and track laborers.
        These figures reflect a serious problem that may require changes in 
    railroad operating rules, training and practices. In order to address 
    the problem in the short term, FRA Administrator Molitoris convened a 
    meeting on June 3, 1994 at which FRA distributed summaries of the 
    fatalities, and enlisted the support of the industry to address the 
    issue immediately on each railroad through local labor/management 
    committees. FRA also discussed the option of proceeding with a 
    negotiated rulemaking, and has since preliminarily concluded that this 
    issue is an appropriate subject for negotiated rulemaking.
    
    (C) Terminology
    
        FRA proposes that the term ``roadway worker'' rather than 
    ``maintenance of way employee'' be used in this proceeding to define 
    the subject persons. This term would encompass all employees of a 
    railroad or a contractor to a railroad who construct, maintain, inspect 
    or repair railroad tracks, structures, signal and train control 
    systems, communication systems, utility systems, or any other fixed 
    property of a railroad while in close or potentially close proximity to 
    tracks on which trains or equipment can be operated. The term would 
    apply regardless of the craft or class title of the employee, 
    affiliation with any labor organization, or rank within the railroad 
    organization. Examples of subject persons would be trackmen, signal 
    maintainers, bridge workers, communication technicians, electricians, 
    surveyors, roadmasters and chief engineers, while performing their 
    duties along the line of road.
        FRA believes that extensive input from all interested parties is 
    necessary to develop a rule that will address both the risk of injury 
    from moving railroad equipment and the operational concerns that this 
    issue presents. Therefore, this notice announces FRA's proposal to 
    address these issues through a negotiated rulemaking.
        Set forth below are the basic concepts of negotiated rulemaking, 
    suggested procedures to be followed, and criteria for participant 
    selection. In order to begin this process shortly, FRA asks that 
    parties representing interests affected by a roadway worker safety rule 
    request appointment or representation on the Committee within thirty 
    days of publication of this notice.
    
    II. Regulatory Negotiation
    
        Due to the increasing complexity and formalization of the written 
    rulemaking process, it can be difficult for an agency to craft 
    effective regulatory solutions to certain problems. In the typical 
    rulemaking process, the participants often develop adversarial 
    relationships that prevent effective communication and creative 
    solutions. The exchange of ideas that may lead to solutions acceptable 
    to all interested groups often does not occur in the traditional notice 
    and comment system. As the Administrative Conference of the United 
    States (ACUS) noted in its Recommendation 82-4:
    
        Experience indicates that if the parties in interest were to 
    work together to negotiate the text of a proposed rule, they might 
    be able in some circumstances to identify the major issues, gauge 
    their importance to the respective parties, identify the information 
    and data necessary to resolve the issues, and develop a rule that is 
    acceptable to the respective interests, all within the contours of 
    the substantive statute.
    
        ACUS adopted this recommendation in ``Procedures for Negotiating 
    Proposed Regulations,'' 47 FR 30708, June 18, 1982. The thrust of the 
    recommendation is that representatives of all interests should be 
    assembled to discuss the issue or hazard and all potential solutions, 
    reach consensus, and prepare a proposed rule for consideration by the 
    agency. After public comment on any proposal issued by the agency, the 
    group would reconvene to review the comments and make recommendations 
    for a final rule. This inclusive process is intended to make the rule 
    more acceptable to all affected interests and prevent the need for 
    petitions for reconsideration and litigation that often follow 
    promulgation of a final rule.
        The movement toward negotiated rulemaking gained impetus with 
    enactment of the Negotiated Rulemaking Act of 1990 (Reg-Neg), 5 U.S.C. 
    Sec. 561, et seq. More recently, President Clinton issued Executive 
    Order 12866 (EO) (58 FR 51735, October 4, 1993), which states the need 
    to reform the current regulatory process into one that is effective, 
    consistent, and understandable. The objectives of the EO are:
    
        To reaffirm the primacy of Federal agencies in the regulatory 
    decision-making process; to restore the integrity and legitimacy of 
    regulatory review and oversight; and to make the process more 
    accessible and open to the public.
    
    Id. Section 6(a) of the EO charges government agencies with providing 
    the public meaningful participation in the regulatory process:
    
        In particular, before issuing a notice of proposed rulemaking, 
    each agency should, where appropriate, seek the involvement of those 
    who are intended to benefit from and those expected to be burdened 
    by any regulation . . . Each agency is also directed to explore and, 
    where appropriate, use consensual mechanisms for developing 
    regulations, including negotiated rulemaking.
    
    Id. at 51740.
        Although relatively new, negotiated rulemakings have been used 
    successfully by many regulatory agencies, including the Federal 
    Aviation Administration, the United States Coast Guard, the 
    Environmental Protection Agency, and the Occupational Safety and Health 
    Administration. FRA now intends to begin this process in a formalized 
    manner for the first time, and does so with enthusiasm and high 
    expectations. FRA welcomes the opportunity to work with those who will 
    be affected directly by a roadway worker safety rule, and is confident 
    that the agency and the industry will benefit from the process by 
    creating an effective and reasonable regulation.
        Pursuant to section 563(a) of Reg-Neg, an agency considering 
    rulemaking by negotiation should consider whether:
    
        (1) There is a need for the rule;
        (2) There is a limited number of identifiable interests;
        (3) These interests can be adequately represented by persons 
    willing to negotiate in good faith to reach a consensus;
        (4) There is a reasonable likelihood that the committee will 
    reach consensus within a fixed period of time;
        (5) The negotiated rulemaking procedure will not unreasonably 
    delay the notice of proposed rulemaking;
        (6) the agency has adequate resources and is willing to commit 
    such resources to the process; and
        (7) The agency is committed to use the result of the negotiation 
    in formulating a proposed rule if at all possible.
        For the reasons stated in this Notice, FRA believes that these 
    criteria have been met with respect to railroad roadway safety issues.
        The regulatory negotiation FRA proposes would be carried out by an 
    advisory committee (Committee) created under the Federal Advisory 
    Committee Act (FACA), as amended, 5 U.S.C. App., and in a manner that 
    reflects appropriate rulemaking objectives, including pertinent 
    Executive Orders. FRA will be represented on the Committee and will 
    take an active part in the negotiations as a Committee member. However, 
    pursuant to section 566(c) of Reg-Neg, the person(s) designated to 
    represent FRA would not facilitate or otherwise chair the proceedings. 
    The agency is committed to this process and is quite optimistic that it 
    will result in the issuance of an NPRM and final rule that will be 
    acceptable to the members of the Committee. Because of the need to 
    issue a rule on this subject, FRA is prepared to go forward with an 
    NPRM that is not the product of the negotiations in the unlikely event 
    the negotiation fails or if the Committee's recommendation is not 
    acceptable.
    
    III. Procedures and Guidelines
    
        The following proposed procedures and guidelines would apply to 
    this process, subject to appropriate changes made as a result of 
    comments received on this Notice or as are determined to be necessary 
    during the negotiating process.
        (A) Facilitator: FRA is seeking the services of a facilitator for 
    the negotiating group. The facilitator will not be involved with 
    substantive development of this regulation. This individual will chair 
    the negotiations, may offer alternative suggestions toward the desired 
    consensus, will help participants define and reach consensus, and will 
    determine the feasibility of negotiating particular issues. The 
    facilitator may ask members to submit additional information or to 
    reconsider their position. FRA will contact mediation organizations for 
    potential candidates, and will consider nominations made in comments 
    received in response to this Notice.
        (B) Feasibility: FRA has examined the issues and interests involved 
    and has made a preliminary inquiry among representatives of those 
    interests to determine whether it is possible to reach agreement on: 
    (a) individuals to represent those interests; (b) the preliminary scope 
    of the issues to be addressed; and (c) a schedule for developing a 
    notice of proposed rulemaking. On the basis of the history of this 
    issue and our preliminary inquiry, we believe that regulatory 
    negotiation could be successful in developing a workable proposal for a 
    notice of proposed rulemaking and a final rule, and that the potential 
    participants listed below would adequately represent the affected 
    interests.
        (C) Participants and Interests: The number of committee 
    participants generally should not exceed 25.
        Please note that each individual or organization affected by a 
    final rule need not have its own representative on the Committee. 
    Rather, each interest must be adequately represented, and the Committee 
    should be fairly balanced. Individuals who are not part of the 
    Committee may attend sessions and confer with or provide their views to 
    Committee members.
        The following interests have been tentatively identified as those 
    that are likely to be significantly affected by the rule:
        (1) Railroad labor organizations;
        (2) Railroads, including classes 1 through 3, the short lines, 
    public transit operations, and their associations;
        (3) Contractors to railroads who perform roadway work; and
        (4) The Federal government.
        FRA proposes that persons selected by the various interests be 
    named to the Committee. The following interests have been tentatively 
    identified as those that would supply Committee members:
        (1) The Brotherhood of Maintenance-of-Way Employes;
        (2) The Brotherhood of Railroad Signalmen;
        (3) The American Train Dispatchers Association;
        (4) The Association of American Railroads;
        (5) The American Short Line Railroad Association;
        (6) American Public Transit Association; and
        (7) FRA.
        As indicated in paragraph F of this notice, FRA invites 
    applications for representation from any interests that will be 
    affected by a rule, but are not named in this list. FRA is committed to 
    an open and comprehensive negotiation, and therefore strongly 
    encourages any such party to file an application for membership. These 
    applications may come from railroads, labor organizations, 
    associations, or other interests, must be filed within thirty days, and 
    must meet the requirements set forth in this notice. Also, the 
    interests listed above and those who apply for representation on the 
    Committee should provide the name(s) of the individual(s) they propose 
    to represent their interests. The Committee should not exceed twenty-
    five members.
        (D) Good Faith: Participants must be committed to negotiate in good 
    faith. It is therefore important that senior individuals within each 
    interest group be designated to represent that interest. No individual 
    will be required to ``bind'' the interests he or she represents, but 
    the individual should be at a high enough level to represent the 
    interest with confidence. For this process to be successful, the 
    interests represented should be willing to accept the final Committee 
    product.
        (E) Notice of Intent to Establish Advisory Committee and Request 
    for Comment: In accordance with the requirements of FACA, an agency of 
    the Federal government cannot establish or utilize a group of people in 
    the interest of obtaining consensus advice or recommendations unless 
    that group is chartered as a Federal advisory committee. It is the 
    purpose of this Notice to indicate our intent to create a Federal 
    advisory committee, to identify the issues involved in the rulemaking, 
    to identify the interests affected by the rulemaking, to identify 
    potential participants who will adequately represent those interests, 
    and to ask for comment on the use of regulatory negotiation and on the 
    identification of the issues, interests, procedures, and participants.
        (F) Requests for Representation: One purpose of this Notice is to 
    determine whether interests exist that may be substantially affected by 
    a rule, but have not been represented in the list of prospective 
    Committee members. Please identify such interests if they exist. Each 
    application for membership or nomination to the Committee should 
    include: (i) the name of the applicant or nominee and the interests 
    such person would represent; (ii) evidence that the applicant or 
    nominee is authorized to represent parties related to the interests the 
    person proposes to represent; (iii) a written commitment that the 
    applicant or nominee would participate in good faith; and (iv) the 
    reasons any representative identified in the Notice does not represent 
    the interests the nominee is alleged to represent. If an additional 
    person or interest requests membership or representation on the 
    Committee, FRA shall determine (i) whether that interest will be 
    substantially affected by the rule, (ii) if such interest would be 
    adequately represented by an individual already on the Committee, and 
    (iii) whether the requester should be added to the group or whether 
    interests can be consolidated to provide adequate representation.
        (G) Final Notice: After evaluating comments received as a result of 
    this notice, FRA will issue a final notice announcing the establishment 
    of the Federal advisory committee, unless it determines that such 
    action is inappropriate in light of comments received, and the 
    composition of the Committee. After the Committee is chartered the 
    negotiations would begin.
        (H) Administrative Support and Meetings: Staff support would be 
    provided by FRA and meetings would take place in Washington, D.C., 
    unless agreed otherwise by the Committee.
        (I) Tentative Schedule: If the Committee is established and 
    selected, FRA will publish a schedule for the first meeting in the 
    Federal Register. The first meeting will focus on procedural matters, 
    including dates, times, and locations of future meetings. Notice of 
    subsequent meetings would also be published in the Federal Register 
    before being held.
        FRA expects that the Committee would reach consensus and prepare a 
    report recommending a proposed rule within six months of the first 
    meeting. However, if unforeseen delays occur, the Administrator may 
    agree to an extension of that time if a consensus of the Committee 
    believes that additional time will result in agreement. The process may 
    end earlier if the facilitator so recommends.
        (J) Committee Procedures: Under the general guidance of the 
    facilitator, and subject to legal requirements, the Committee would 
    establish the detailed procedures for meetings which it considers 
    appropriate.
        (K) Record of Meetings: In accordance with FACA's requirements, FRA 
    would keep a record of all Committee meetings. This record would be 
    placed in the public docket for this rulemaking. Meetings of the 
    Committee would generally be open to the public.
        (L) Consensus: The goal of the negotiating process is consensus. 
    FRA proposes that the Committee would develop its own definition of 
    consensus, which may include unanimity, a simple majority, or 
    substantial agreement such that no member will disapprove the final 
    recommendation of the Committee. However, if the Committee does not 
    develop its own definition, consensus shall be unanimous concurrence.
        (M) Notice of Proposed Rulemaking and Final Rule: The Committee's 
    first objective is to prepare a report containing a notice of proposed 
    rulemaking, preamble, and economic evalutation. If consensus is not 
    obtained on some issues, the report should identify the areas of 
    agreement and disagreement, and explanations for any disagreement. It 
    is expected that participants will address cost/benefit, paperwork 
    reduction, and regulatory flexibility requirements. FRA would prepare 
    an economic assessment if appropriate.
        FRA would issue the proposed rule as prepared by the Committee 
    unless it is inconsistent with statutory authority of the agency or 
    other legal requirements or does not, in the agency's view, adequately 
    address the subject matter. If that occurs, FRA would explain the 
    reasons for its decision, or would modify the proposal in a way that 
    allows the public to distinguish modifications from the original 
    proposal.
        The Committee would reconvene to review comments received in 
    response to publication of the proposed rule and would negotiate to 
    produce a recommended final rule. FRA would issue the recommended final 
    rule as prepared by the Committee unless it is inconsistent with 
    statutory authority of the agency or other legal requirements or does 
    not, in the agency's view, adequately address the subject matter. If 
    that occurs, FRA would explain the reasons for its decision, or would 
    modify the recommended final rule in a way that allows the public to 
    distinguish modifications from the recommended final rule.
        (N) Key Issues for Negotiation: FRA has reviewed correspondence, 
    petitions, injury data, existing railroad operating practices, and has 
    engaged in extensive dialogue concerning the protection of roadway 
    workers. Based on this information and rulemaking requirements, FRA has 
    tentatively identified major issues that should be considered in this 
    negotiated rulemaking. Other issues related to roadway protection not 
    specifically listed in this Notice may be addressed as they arise in 
    the course of the negotiation. Comments are invited concerning the 
    appropriateness of these issues for consideration and whether other 
    issues should be added.
        1. Are devices available that may be used to reduce the risk of 
    danger to roadway workers? If so, how do these devices work and what 
    are the costs associated with them?
        2. Are there appropriate procedures or operating practices that may 
    be instituted effectively to reduce the risk of danger to roadway 
    workers? If so, what are the costs that will be associated with 
    implementing these practices and procedures?
        3. Are there appropriate training programs that may be given to 
    reduce the risk of danger to roadway workers? If so, at what intervals 
    should they be taught? Also, what are the costs and the time associated 
    with such a program?
        4. Are there peculiar topographical, environmental, and operational 
    conditions that must be considered in developing a program to reduce 
    the risk of harm to roadway workers? What are the specific conditions, 
    and how do they vary from one region to another, and from one railroad 
    to another? What would the cost for this program be?
        5. Should any program developed vary according to the size of a 
    railroad? If so, explain why such variations are necessary and how the 
    programs should differ.
        6. What recordkeeping and reporting requirements, if any, should be 
    instituted to advance the safety of roadway workers? What is the amount 
    of time and cost involved with these requirements?
        7. What enforcement procedures should FRA utilize to ensure 
    compliance with any rule developed?
        8. Aside from the obvious benefit of providing safer working 
    conditions and so reducing the risk of injury and death for roadway 
    workers, are there additional benefits (both monetary and non-monetary) 
    that will result from the implementation of a rule concerning roadway 
    workers?
        9. Do any railroads currently have internal operating practices 
    that address the intended purposes of this negotiated rulemaking? If 
    so, please provide the background for implementation of these 
    practices, and a description of their effectiveness. Also, what were 
    the costs and benefits associated with implementing these practices?
    
    IV. Public Participation
    
        FRA invites comments on all issues, procedures, guidelines, 
    interests, and suggested participants embodied in this Notice. All 
    comments and requests for participation should be submitted to the 
    Docket Clerk, Office of Chief Counsel, FRA, 400 Seventh Street, SW., 
    Room 8201, Washington, DC 20590.
    
        Issued this 11th day of August 1994.
    Jolene M. Molitoris,
    Administrator.
    [FR Doc. 94-20078 Filed 8-16-94; 8:45 am]
    BILLING CODE 4910-06-P
    
    
    

Document Information

Published:
08/17/1994
Department:
Federal Railroad Administration
Entry Type:
Uncategorized Document
Action:
Notice of Proposal to Form a Negotiated Rulemaking Advisory Committee and Request for Representation.
Document Number:
94-20078
Dates:
FRA must receive written comments and requests for representation or membership by September 16, 1994.
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: August 17, 1994, FRA Docket No. RSOR 13, Notice No. 1
RINs:
2130-AA86: Roadway Worker Protection
RIN Links:
https://www.federalregister.gov/regulations/2130-AA86/roadway-worker-protection
CFR: (1)
49 CFR 561