Railroad Workplace Safety; Adjacent-Controlled-Track On-Track Safety for Roadway Workers, 61633-61654 [E9-27974]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

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


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

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


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

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

ACTION: Notice of proposed rulemaking (NPRM).

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July 17, 2008 (73 FR 41214), was withdrawn by ``Notice No. 2'' 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

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

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

[[Page 61634]]

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

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

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

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

I. Impetus for Rulemaking

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

A. Applicability and Basic Definitions

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

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

[[Page 61635]]

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

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

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

III. Notice of Safety Advisory 2004-01

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

[[Page 61636]]

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

See id.

IV. Recent Roadway Worker Accidents (1997-2008)

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

[[Page 61637]]

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

V. Joint Petition to FRA for an Emergency Order

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

VI. Current Rulemaking To Revise the RWP Rule

A. Overview of the RSAC

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

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

[[Page 61638]]

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

* Indicates associate, non-voting membership.

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

B. Proceedings in This Rulemaking to Date Generally

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

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

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

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

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

[[Page 61639]]

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

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

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

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

[[Page 61640]]

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

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

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

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

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

[[Page 61641]]

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

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

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