Railroad Workplace Safety; Adjacent-Track On-Track Safety for Roadway Workers, 74586-74620 [2011-30250]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

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



[[Page 74585]]

Vol. 76

Wednesday,

No. 230

November 30, 2011

Part III





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 214





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

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

[[Page 74586]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

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


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

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

ACTION: Final rule.

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SUMMARY: FRA is amending its regulations on railroad workplace safety 
to further reduce the risk of serious injury or death to roadway 
workers performing work with potentially distracting equipment near 
certain adjacent tracks. In particular, this final rule requires that 
roadway workers comply with specified on-track safety procedures that 
railroads must adopt to protect those workers from the movement of 
trains or other on-track equipment on ``adjacent controlled track.'' 
FRA defines ``adjacent controlled track'' to mean ``a controlled track 
whose track center is spaced 19 feet or less from the track center of 
the occupied track.'' These on-track safety procedures are required for 
each adjacent controlled track when a roadway work group with at least 
one of the roadway workers on the ground is engaged in a common task 
with on-track, self-propelled equipment or coupled equipment on an 
occupied track. In addition, FRA is removing the provision on 
preemptive effect.

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

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

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

Table of Contents

I. Executive Summary
II. Overview of the Existing Roadway Worker Protection (RWP) Rule
    A. Applicability and Basic Definitions
    B. Authorized Methods of Establishing On-Track Safety
    C. Existing On-Track Safety Requirements for Roadway Work Groups 
With Respect to Adjacent Tracks
III. Notice of Safety Advisory 2004-01
IV. Recent Roadway Worker Accidents (1997-2010)
V. Joint Petition to FRA for an Emergency Order
VI. Current Rulemaking To Revise the RWP Rule
    A. Overview of the RSAC [Railroad Safety Advisory Committee]
    B. Proceedings in This Rulemaking to Date Generally
    C. Proceedings Concerning On-Track Safety Procedures for 
Adjacent Tracks
    D. Response to Comments on the November 25, 2009 NPRM
    1. On-Ground Work Performed to the Clear Side
    2. Hi-Rail Vehicles and Clarification of ``Common Task''
    3. Rail-Bound Geometry or Detector Cars
    4. Continuous Barrier
    5. Requests for Additional Exceptions to, or Relief From, the 
Requirements of Proposed Sec.  214.336 or for a Narrowing of Its 
Scope
    a. Requested Exception Where There Is Only One Worker on the 
Ground
    b. Requested Revision of Proposed Sec.  214.336(c) To Permit 
Work by the Machine Operator Within the Areas 25 Feet in Front of 
and 25 Feet Behind Equipment During Low-Speed Movements on an 
Adjacent-Controlled-Track
    c. Requested Revision of Proposed Sec.  214.336(b)(2) to Permit 
a Roadway Work Group Component To Resume Work After the Head-End Has 
Passed the Component's Location
    d. Request To Raise the Threshold Speed in Sec.  214.336(b) and 
Sec.  214.336(c) From 25 MPH to 40 MPH for Passenger Trains
    6. Predetermined Place of Safety
    7. The Effect of the Proposed Rule on Dispatchers
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Order 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Trade Impact
    I. Privacy Act

I. Executive Summary

    As will be detailed in this final rule, the recent increase in 
roadway worker fatalities that have occurred on an adjacent track 
(i.e., under the existing rule, any track within 25 feet of the 
centerline of the track to which the roadway work group was assigned to 
perform one or more roadway worker duties) has caused considerable 
concern at FRA and throughout the industry, even prompting the filing 
of a joint petition for emergency order under 49 U.S.C. 20104 on April 
11, 2008. See 49 CFR part 214, subpart C (``Roadway Worker Protection 
Rule'' or ``RWP Rule'').\1\ FRA had issued a notice of safety advisory 
to address this same issue in May of 2004; however, it appears that the 
salutary effects of the safety advisory, which produced a period of 16 
months with no fatalities on an adjacent track, were not long-lasting, 
as four fatalities have since occurred on an adjacent track where a 
roadway work group, with at least one of the roadway workers on the 
ground, was engaged in a common task with on-track, self-propelled 
equipment on an occupied track. These amendments to the Roadway Worker 
Protection Rule are based on the consensus language developed through 
the Roadway Worker Protection Working Group of FRA's Railroad Safety 
Advisory Committee (RSAC), which is comprised of various 
representatives of the groups that are affected by this rule (including 
railroad management, railroad labor organizations, and contractors). 
Because incidents involving adjacent controlled tracks appear to 
present clear evidence of significant risk that is not effectively 
addressed by the existing regulation, FRA has concluded that moving 
forward with this final rule in advance of the other proposals 
contained in the RSAC consensus \2\ is necessary and appropriate.
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    \1\ The RWP rule was published on December 16, 1996, and became 
effective on January 15, 1997. See 61 FR 65959.
    \2\ While the consensus language relating to adjacent track 
issues that was developed through the RSAC was originally intended 
to be published as part of a larger NPRM, FRA decided to propose the 
adjacent-track-related provisions in a separate NPRM (which led to 
the issuance of this final rule) so that an appropriate provision 
would be in effect in a more timely fashion than if the provision 
were one of many in the larger rulemaking that would need to undergo 
internal review and approval and public notice and comment. The 
remaining provisions not related to adjacent track will be proposed 
in a separate NPRM at a later date, as part of the larger RWP 
rulemaking.
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    As will be discussed in more detail in Section II.C, below, until 
this final rule's amendments to Sec.  214.335(c) become effective, the 
RWP Rule requires that roadway work groups engaged in ``large-scale 
maintenance or construction'' be provided with on-track safety in the 
form of ``train approach warning'' for

[[Page 74587]]

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

[[Page 74588]]

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

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

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

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

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

A. Applicability and Basic Definitions

    As background, since the RWP Rule \4\ became effective in 1997, it 
has imposed certain safety requirements. In particular, the RWP Rule 
requires each railroad that operates rolling equipment on track that is 
part of the general railroad system of transportation to ``adopt and 
implement a program that will afford on-track safety to all roadway 
workers whose duties are performed on that railroad.'' See 49 CFR 
214.3, 214.303(a).\5\ ``On-track safety'' is defined in the RWP Rule as 
``a state of freedom from the danger of being struck by a moving 
railroad train or other railroad equipment, provided by operating and 
safety rules that govern track occupancy by personnel, trains and on-
track equipment.'' See Sec.  214.7. The roadway workers that must be 
afforded on-track safety are any employees of a railroad, or of a 
contractor to a railroad, whose duties include ``inspection, 
construction, maintenance or repair of railroad track, bridges, 
roadway, signal and communication systems, electric traction systems, 
roadway facilities or roadway maintenance machinery on or near track or 
with the potential of fouling a track, and flagmen and watchmen/
lookouts * * *.'' See Sec.  214.7, ``Roadway worker.''
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    \4\ The RWP rule was published in the Federal Register on 
December 16, 1996 (61 FR 65959), and became effective on January 15, 
1997.
    \5\ All references in this preamble to a section or other 
provision of a regulation are to a section, part, or other provision 
in title 49, Code of Federal Regulations unless otherwise specified.
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B. Authorized Methods of Establishing On-Track Safety

    Several methods are authorized to be used to provide on-track 
safety for roadway workers, and many of those methods involve 
establishing ``working limits,'' which is defined in part as ``a 
segment of track with definite boundaries established in accordance 
with [part 214] upon which trains and engines may move only as 
authorized by the roadway worker having control over that defined 
segment of track.'' See Sec. Sec.  214.7 and 214.319. Working limits 
may be established on controlled track (i.e., ``track upon which the 
railroad's operating rules require that all movements of trains must be 
authorized by a train dispatcher or a control operator'') through 
exclusive track occupancy (Sec.  214.321), foul time (Sec.  214.323), 
or train coordination (Sec.  214.325). See Sec. Sec.  214.7 and 
214.319. Regardless of which method is chosen, the working limits are 
only permitted to be under the control of a qualified roadway worker in 
charge, and all affected roadway workers must be notified and either 
clear of the track or provided on-track safety through train approach 
warning (in accordance with Sec.  214.329) before the working limits 
are released to permit the operation of trains or other on-track 
equipment through the working limits. See id.
    Train approach warning is another common method of establishing on-
track safety in which a trained and qualified watchman/lookout provides 
warning to roadway worker(s) of the approach of a train or on-track 
equipment in sufficient time to enable each roadway worker to move to 
and occupy a previously arranged place of safety not less than 15 
seconds before a train moving at the maximum speed authorized on that 
track would arrive at the location of the roadway worker. See 
Sec. Sec.  214.329 and 214.7 ``Watchman/

[[Page 74589]]

lookout.'' Train approach warning is sometimes used as a temporary form 
of on-track safety when a roadway worker in charge needs to nullify the 
on-track safety previously established by working limits in order to 
permit a train or piece of on-track equipment to enter the roadway work 
group's working limits. Train approach warning permits the roadway 
workers to continue working for longer (than if working limits were the 
only form of on-track safety in effect) if the working limits span 
several miles and the train or equipment will not be passing by the 
work area for some time due to a speed restriction, the distance away, 
or the train or equipment halting its movement. It should be noted that 
switching temporarily to ``train approach warning'' is permissible only 
if the change was discussed in detail with the roadway work group, 
prior to the change occurring, in an updated on-track safety job 
briefing pursuant to Sec.  214.315(d).

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

    Until the amendments to Sec.  214.335(c) become effective, the 
provision of the 1996 RWP Rule requires that roadway work groups 
engaged in ``large-scale maintenance or construction'' be provided with 
on-track safety in the form of ``train approach warning'' for train or 
equipment movements on adjacent tracks if the adjacent tracks are not 
already included within the working limits. Under the current 
definition of ``adjacent tracks,'' on-track safety as discussed above 
is required for any tracks with track centers spaced less than 25 feet 
apart from the track center of the track to which a roadway work group 
is assigned to perform large-scale maintenance or construction. See 
Sec. Sec.  214.7 and 214.335(c). The track to which the roadway work 
group is assigned to perform the large-scale maintenance or 
construction is commonly referred to as the ``occupied track.'' Thus, 
in triple-main track territory, if a roadway work group is occupying 
the middle track (e.g., Main Track No. 2) in order to perform large-
scale maintenance or construction, and the track centers of the tracks 
on either side of the occupied track are within 25 feet of the track 
center of the occupied track, then on-track safety is required to be 
established on both adjacent tracks (e.g., Main Track Nos. 1 and 3). In 
some yards or territories, where track centers are spaced only 12 feet 
apart, an occupied track (e.g., Yard Track No. 3) may have up to four 
adjacent tracks (e.g., Yard Track Nos. 1, 2, 4, and 5). In such cases, 
the existing rule requires on-track safety to be established on all 
four adjacent tracks, in addition, of course, to the on-track safety 
required for the occupied track itself. See Sec.  214.335(c) (61 FR 
65976) and Sec.  214.337(a).
    Although the term ``large-scale maintenance or construction'' is 
not specifically defined in the 1996 regulation, FRA noted in the 
preamble to the 1996 final rule establishing the 1996 RWP Rule that the 
principle behind the reference to large-scale maintenance or 
construction was ``the potential for distraction, or the possibility 
that a roadway worker or roadway maintenance machine might foul the 
adjacent track and be struck by an approaching or passing train,'' and 
further stated that ``conditions in which the risk of distraction 
[were] significant'' required measures to provide on-track safety on 
adjacent tracks. See 61 FR 65971. To further clarify what is meant by 
the term ``large-scale maintenance or construction,'' FRA referenced 
the recommendation of the Roadway Worker Safety Advisory Committee, 
which described large-scale track maintenance and/or renovations, such 
as but not limited to, ``rail and tie gangs, production in-track 
welding, ballast distribution, and undercutting.'' See id. Under such 
guidance, many railroads were not providing on-track safety on adjacent 
tracks for surfacing operations, small tie renewal operations, or 
similar maintenance operations that, while smaller in scale (e.g., 
because these were often single-task operations, rather than the 
multiple-task operations typical of production units), still included 
one or more pieces of on-track, self-propelled equipment. Fatalities 
occurred on the adjacent track during such operations when on-track 
safety was not established on the adjacent track or had been 
temporarily or permanently nullified or suspended to permit the passage 
of a train or other on-track equipment.

III. Notice of Safety Advisory 2004-01

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

[[Page 74590]]

inadvertently depart the equipment onto a track where there may be 
trains and other on-track equipment passing;
     Provide additional training and monitoring to employees, 
emphasizing the need to cross tracks in a safe manner (i.e., single 
file and after looking in both directions);
     Reinforce to individual roadway workers that it is 
critical not to foul a track except in the performance of duty and only 
when on-track safety has been established. This training could be 
accomplished through training sessions, as well as daily job briefings; 
and
     Institute peer-intervention measures by which workers are 
encouraged to intervene when observing another roadway worker engaging 
in potentially non-compliant and unsafe activity. See id.

IV. Recent Roadway Worker Accidents (1997-2010)

    In the more than thirteen years since the RWP Rule went into effect 
on January 15, 1997, there have been nine roadway worker fatalities on 
an adjacent track. Seven of those fatalities have occurred on a 
controlled track that was adjacent to the track on which a roadway work 
group, with at least one of the roadway workers on the ground, was 
engaged in a common task with on-track, self-propelled equipment. FRA 
notes that there has been only one adjacent-track fatality where a 
roadway work group had been engaged in a common task with a lone hi-
rail vehicle, defined in Sec.  214.7 as ``a roadway maintenance machine 
that is manufactured to meet Federal Motor Vehicle Safety Standards and 
is equipped with retractable flanged wheels so that the vehicle may 
travel over the highway or on railroad tracks.'' \6\ In addition, there 
have been no adjacent-track fatalities where a roadway work group had 
been engaged in a common task with a catenary maintenance tower car on 
the occupied track. This is likely because the duties normally 
performed by an employee operating a hi-rail vehicle or a catenary 
maintenance tower car tend to be less distracting to on-ground roadway 
workers and produce less dust and noise than a typical on-track roadway 
maintenance machine. Given the above, FRA proposed that adjacent-track 
on-track safety not be required for roadway work groups engaged in a 
common task with a hi-rail vehicle or a catenary maintenance tower car, 
as discussed in the section-by-section analysis of paragraphs (b)(2) 
and (3), respectively, in new Sec.  214.336.
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    \6\ In that case (which occurred on March 28, 2002, in 
Langhorne, PA), the roadway workers were under the impression that 
adjacent-track on-track safety was in effect, but it was not, due to 
a miscommunication.
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    Of the seven fatalities that occurred under the circumstances 
described above and which this final rule is intended to address, three 
occurred during the period after the effective date of the 1996 RWP 
Rule and before the publication of the safety advisory on May 3, 2004, 
and four have occurred since that period. In the four-year period prior 
to May of 2004 (May 1, 2000-April 30, 2004), there has been one 
adjacent-track fatality known to have occurred under such 
circumstances, for a rate of .25 per year. In the four-year period 
since (May 1, 2004-April 30, 2008), there have been four adjacent-track 
fatalities, for a rate of one per year, which is four times the rate of 
the previous four-year period. While FRA recognizes that even one death 
can make rates change dramatically when the total number of deaths is 
small, the increase in the rate of these deaths despite the safety 
advisory continues to lead FRA to conclude that regulatory action is 
needed to avert an escalating number of deaths. Moreover, given the 
extensive participation in developing these consensus regulatory 
provisions by representatives of all of the key interests involved in 
this issue, it is contrary to the public interest to wait for all of 
the other issues in the larger RWP rulemaking to be resolved or to 
engage in lengthy periods for notice and public comment before acting 
to prevent more deaths.
    The following is a brief summary of the results of FRA's 
investigations of the four most recent incidents that resulted in these 
unfortunate fatalities:
     October 5, 2005: A roadway surfacing gang tamper operator, 
with 28 years of service, was walking up to the front of the tamper to 
put away the light buggies as his surfacing gang, having just completed 
its work, was getting ready to travel to clear the number two main 
track. The operator was walking east on the side of the tamper between 
the two main tracks when he was struck by a westbound train on the 
adjacent track. The track centers were spaced approximately 13 feet 
apart, and the train was traveling at an estimated speed of 40 miles 
per hour (mph).
     March 12, 2007: A surfacing gang was occupying the number 
one main track in a double-main territory. The surfacing gang foreman 
(the roadway worker in charge), who earlier had notified the other 
members of the gang of pending movement on the adjacent track, was 
standing in the gage of the same adjacent track when he was struck by a 
train. It remains unclear why he was fouling the adjacent track at the 
time of the incident. The track centers were spaced approximately 13 
feet, 6 inches apart, and the maximum authorized speed on the adjacent 
track was 50 mph. The foreman was the only roadway worker on the ground 
at the time of the incident.
     February 10, 2008: A train struck a roadway worker inside 
an interlocking on a triple-main track territory. The worker was part 
of a gang that consisted of approximately 10 workers that were engaged 
in the repair of a crossover on the middle main track with a tamper. 
Foul time was being used as adjacent-track on-track safety, but this 
on-track safety was removed by the roadway worker in charge, who gave 
permission to the dispatcher to permit a train to operate on the 
adjacent track through the roadway work group working limits. As the 
train entered the interlocking on a limited clear signal indication for 
a crossover move past the work area, one of the roadway workers 
attempted to cross the track in front of the train and was struck. The 
track centers were spaced approximately 13 feet apart, and the maximum 
authorized speed for the train on the adjacent track was 45 mph.
     March 27, 2008: A surfacing gang was working on double-
main track territory. The surfacing gang foreman was standing in the 
foul of the adjacent track while his surfacing crew worked on the 
number two main track (the occupied track). A train operating on the 
adjacent track struck the foreman. No on-track safety was in effect on 
the adjacent track involved at the time of the incident. The track 
centers were spaced approximately 14 feet, 7 inches apart, and the 
maximum authorized speed on the adjacent track was 70 mph. The foreman 
was the only roadway worker on the ground at the time of the incident.
    While the above discussion focuses on those fatalities that have 
occurred on an adjacent track where a roadway work group, with at least 
one of the roadway workers on the ground, was engaged in a common task 
with on-track, self-propelled equipment on an occupied track, it is 
important to discuss some of the common circumstances in all nine of 
the fatalities that have occurred on an adjacent track since the rule 
went into effect, as these circumstances were considered by FRA in its 
decision to issue the NPRM and this final rule. The first common 
circumstance is the type of track. All nine of the fatalities occurred 
on ``controlled'' track, rather than ``non-controlled'' track. This was 
taken into consideration in writing FRA's proposed and final definition 
of ``adjacent controlled track,'' which has

[[Page 74591]]

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

V. Joint Petition to FRA for an Emergency Order

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

VI. Current Rulemaking To Revise the RWP Rule

A. Overview of the RSAC

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to FRA's Administrator on 
rulemakings and other safety program issues. The Committee includes 
representation from all of the agency's major stakeholder groups, 
including railroads, labor organizations, suppliers and manufacturers, 
and other interested parties. A list of member groups follows:
     American Association of Private Railroad Car Owners 
(AARPCO);
     American Association of State Highway and Transportation 
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association 
(ASLRRA);
     ATDA;
     Association of American Railroads (AAR);
     Association of Railway Museums;
     Association of State Rail Safety Managers (ASRSM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     BMWED;
     BRS;
     The Chlorine Institute, Inc.;
     Federal Transit Administration (FTA);*
     Fertilizer Institute;
     High Speed Ground Transportation Association (HSGTA);
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace 
Workers;
     International Brotherhood of Electrical Workers (IBEW);
     Labor Council for Latin American Advancement;*
     League of Railway Industry Women;*
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women;*
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association 
(NRC);
     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB);*
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte;*

[[Page 74592]]

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

B. Proceedings in This Rulemaking to Date Generally

    On January 26, 2005, the RSAC formed the RWP Working Group 
(``Working Group'') to consider specific actions to advance the on-
track safety of employees of covered railroads and their contractors 
engaged in maintenance-of-way activities throughout the general system 
of railroad transportation, including clarification of existing 
requirements. The assigned task was to review the existing rule, 
technical bulletins, and a safety advisory dealing with on-track 
safety. The Working Group was to consider implications and, as 
appropriate, consider enhancements to the existing rule. The Working 
Group would report to the RSAC any specific actions identified as 
appropriate, and would report planned activity to the full Committee at 
each scheduled Committee meeting, including milestones for completion 
of projects and progress toward completion.
    The Working Group is comprised of members from the following 
organizations:
     Amtrak;
     APTA;
     ASLRRA;
     ATDA;
     AAR, including members from BNSF Railway Company (BNSF), 
Canadian National Railway Company (CN), Canadian Pacific Railway, 
Limited (CP), Consolidated Rail Corporation (Conrail), CSX 
Transportation, Inc. (CSXT), The Kansas City Southern Railway Company 
(KCS), Norfolk Southern Corporation railroads (NS), and Union Pacific 
Railroad Company (UP);
     Belt Railroad of Chicago;
     BLET;
     BMWED;
     BRS;
     FRA;
     Indiana Harbor Belt Railroad (IHB);
     Long Island Rail Road (LIRR);
     Metro-North Commuter Railroad Company (Metro-North);
     Montana Rail Link;
     NRC;
     Northeast Illinois Regional Commuter Railroad Corporation 
(Metra);
     RailAmerica, Inc.;
     Southeastern Pennsylvania Transportation Authority 
(SEPTA);
     UTU; and
     Western New York and Pennsylvania Railroad (WNY&P).
    The Working Group held 12 multi-day meetings. The group worked 
diligently and was able to reach consensus on 32 separate items.

C. Proceedings Concerning On-Track Safety Procedures for Adjacent 
Tracks

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

[[Page 74593]]

``A hi-rail vehicle as defined in Sec.  214.7, provided such hi-rail 
vehicle is not coupled to railroad cars. Where multiple hi-rail 
vehicles are engaged in a common task, the on-track safety briefing 
shall include discussion of the nature of the work to be performed to 
determine if adjacent controlled track protection is necessary. Nothing 
in this subpart prohibits the roadway worker in charge of the hi-rail 
vehicle from establishing adjacent controlled track protection, as he/
she deems necessary.
     ``On-ground roadway workers exclusively performing work on 
the field side of the occupied track.
     ``Catenary maintenance tower cars with roadway workers 
positioned on the ground within the gage of the occupied track for the 
sole purpose of applying or removing grounds. Nothing in this subpart 
prohibits the roadway worker in charge of the catenary maintenance 
tower car from establishing adjacent track protection, as he/she deems 
necessary.''
    Upon reviewing the joint petition of the BRS and BMWED for an 
emergency order, the consensus language of the Working Group quoted 
above, and the relevant accident data concerning roadway workers 
fouling adjacent tracks, FRA decided to issue a separate NPRM \7\ to 
lower the safety risk associated with roadway workers fouling adjacent 
tracks. Although FRA's safety advisory may have had an initial effect 
and have raised awareness enough to help keep the number of all 
categories of roadway worker fatalities in 2004 and through almost six 
months in 2005 at zero, the effect was not sustained enough to combat 
the rise of roadway worker fatality incidents since late June of 2005, 
when the first roadway worker fatality occurred after the issuance of 
the safety advisory, or since October of 2005, when the first adjacent 
track roadway worker fatality occurred.
---------------------------------------------------------------------------

    \7\ As noted in Section I of this preamble, the provisions 
related to on-track safety for certain adjacent tracks were 
originally intended to be published as part of a larger NPRM 
concerning part 214, but were proposed as a separate NPRM (which led 
to the issuance of this final rule) to expedite the effective date 
of such provisions.
---------------------------------------------------------------------------

    In light of recent roadway worker fatality trends, FRA determined 
that the agency must propose a more prescriptive approach to prevent 
further fatalities. The need to mandate adjacent-track on-track safety 
was recognized by FRA, members of the Working Group, and members of the 
full RSAC. The consensus language developed by the Working Group and 
recommended by the full RSAC was expected to reduce the risk of roadway 
worker fatalities due to fouling an adjacent track while working in 
conjunction with on-track, self-propelled equipment or coupled 
equipment on an occupied track. As part of the process in drafting the 
NPRM in the larger RWP rulemaking, FRA circulated the consensus rule 
text concerning adjacent track and other items to the Working Group for 
errata review. Both AAR and BMWED submitted comments on this provision. 
To address these issues, and other potential ambiguities discovered 
upon a closer review of the rule text, FRA reorganized and modified the 
consensus text in issuing an NPRM.
    FRA published an NPRM addressing adjacent-track on-track safety on 
July 17, 2008 (73 FR 41214), but formally withdrew the notice on August 
13, 2008 (73 FR 47124). The withdrawal stated, in part--

    [i]n crafting the NPRM, FRA presented the RSAC consensus 
language in the preamble verbatim and transparently explained its 
rationale for all changes it made to the consensus language. As this 
was an NPRM, FRA sought comment on the entire proposal, including 
those portions that FRA sought to clarify.
    FRA recognizes that inadvertent errors do sometimes occur in 
formulating a proposal and expects that interested parties would 
provide comments to both FRA and all other interested parties 
through the established comment process detailed in the NPRM. Given 
the alleged discrepancies between the consensus language and the 
proposed rule, the need to clarify the essential issues and move 
toward resolution of the safety concern at hand, and the ex parte 
communications regarding this proposed rule, FRA has decided to 
withdraw this rulemaking and will take such further regulatory steps 
as safety requires.

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

[[Page 74594]]

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

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

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

FRA has responded to some of the smaller concerns within the Section-
by-Section Analysis at Section VII of this preamble.
1. On-Ground Work Performed to the Clear Side
    BMWED and BRS raised several issues in their joint comments on the 
NPRM. First and foremost, however, was their concern with the concept 
and definition of the term ``clear side,'' which they believed was an 
``unproven and novel concept'' that had not been discussed in the RSAC 
and the Working Group, and that was a ``dangerous surrogate for the 
consensus language defining `Field Side' within the body of the text 
adopted by the Working Group in 214.335(c)(3).'' In the NPRM, FRA had 
proposed the term ``clear side'' as a shorthand to describe the side on 
which there should essentially be no danger posed by any other adjacent 
track, for purposes of the exception in paragraph (e)(1) of proposed 
Sec.  214.336 for ``[o]ne or more on-ground roadway workers performing 
work while exclusively positioned on the clear side of the occupied 
track.'' In particular, FRA noted that, assuming compliance with the 
proposed rule, there would be no danger posed by any other adjacent 
track either because there is no adjacent track on that particular side 
of the occupied track or, even though there is an adjacent track on 
that side of the occupied track, working limits have been established 
in accordance with this subpart on the closest adjacent track on that 
side and, therefore, there are no movements authorized through the 
working limits on that adjacent track.
    This proposed exception was based on paragraph (e)(2) of the 
consensus language, which read ``[o]n-ground roadway workers 
exclusively performing work on the field side of the occupied track.'' 
As discussed at length in the preamble of the NPRM (see 74 FR 61640), 
FRA believed that this language was broader than the consensus language 
in consensus paragraph (c)(3), which would have permitted work to 
continue ``to the field side of the occupied track with no adjacent 
track'' during a low-speed movement on an adjacent controlled track on 
the opposite side of the occupied track. Additionally, FRA noted that 
there were two field sides to each occupied track, beginning at each 
rail and continuing outward and away from the track center of the 
occupied track. However, in their joint comments on the NPRM, BMWED and 
BRS expressed their beliefs that the term ``field side'' was clear, and 
that each right-of-way (rather than each track) has only two field 
sides (i.e., the outermost extremes of the right-of-way). It was their 
opinion that FRA was mistaken in its conclusion that there was a 
co