Revisions To The Roadway 

Worker On-Track Safety Regulation 

Federal Railroad Administration

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Federal Railroad Administration

RWP 2016

Moving America Forward

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This presentation is intended to provide guidance in broad terms.  It is not intended to serve as a complete explanation of the Revisions to the RWP regulations or as a substitute for application of the regulations to specific facts.

The Track Division Technical Bulletins and/or Compliance Manual provides additional guidance regarding the regulation.

 Each section/paragraph shown on a presentation slide is the regulatory text with appropriate modifications indicated.  User must consult the regulation & preamble in its entirety when applying the regulation.

This presentation does not provide any information about specific procedures on any railroad, nor may it be used to qualify any person.	 

Roadway workers are required to be trained on  the specific rules and procedures of each railroad upon which they are to perform RW duties as defined by this regulation.

Presentation Notes

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Federal Railroad Administration

Moving America Forward

It is important to note that this is a presentation and does not in all cases provide the complete regulation text.  Therefore, it is not a legally binding document and users must refer to the Federal Register text https://www.federalregister.gov/articles/2016/06/10/2016-13057/railroad-workplace-safety-roadway-worker-protection-miscellaneous-revisions-rrr  for complete documentation.

It is also important to recognize that this presentation provides the user with background of the regulation, which will assist with a generic understanding of the On-Track Safety concepts associated with the Revision to RWP Rule.  However, all roadway workers must obtain training on the unique On-Track Safety elements of each railroad they are working.

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Learning Objectives

Understand the new definitions and changes to Part 214, Subpart C.

Apply the new changes to Part 214, Subpart C in a practical real world environment.

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Federal Railroad Administration

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Upon completion of this class, you should be able to understand and demonstrate the above:

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Control Point - means a location where signals and/or other functions of a traffic control system are controlled from the control machine.

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§ 214.7 Definitions

Federal Railroad Administration

Moving America Forward

The definition of the term “controlled point” was a consensus recommendation agreed to by the Working Group, and FRA is adopting the definition as proposed.  This new definition is being adopted because existing § 214.337 prohibits the use of individual train detection by a lone worker inside the limits of a “controlled point.”  See § 214.337(c)(3).  However, that term was not defined in the existing RWP regulation and interpretive issues arose.  In response, FRA issued Technical Bulletin G-05-29.  The Working Group discussed this topic, and decided to recommend the incorporation of the existing definition for the same term found in FRA’s signal and train control regulations (§ 236.782).  FRA is defining a “controlled point” as a location where signals and/or other functions of a traffic control system are controlled from the control machine.  

FRA Technical Bulletin G-05-29, issued in 2005 for interpretation and enforcement purposes, adopted the definition for the term “controlled point” at existing 49 C.F.R. part 236.  The RSAC consensus definition recommended to FRA for adoption in this rulemaking proceeding replicates the existing part 236 definition for the term of “controlled point” that FRA referenced in this 2005 technical bulletin.  Thus, the unanimous consensus definition that FRA proposed in the NPRM changes nothing with regard to application of the existing regulation.  

Individual train detection can be utilized by lone workers at switch heaters, snow blowers, signal call lights, blue signal protection, and electric switch locks, and that these mechanisms are not commonly understood to constitute “controlled points”.  However, remote-controlled power switches and bridges that are moveable via a control machine (by train dispatcher or control operator) are considered to be controlled points. With regard to a moveable bridge that is a controlled point, a lone worker would always be required to establish working limits (under the existing regulation) because a lone worker using individual train detection as his/her form of on-track safety is not required to notify a train dispatcher or control operator of the work they are performing.  If a lone worker were permitted to use individual train detection on a moveable bridge “controlled point”, the dispatcher or control operator would be unaware of the roadway worker’s presence and could remotely move the bridge while the roadway worker was on the bridge, creating likely risk of injury or death to the roadway worker. 

With regard to remote-controlled power switches, if a power-operated switch installation can be remotely operated by a control operator or dispatcher remotely, it is considered a “controlled point”.   The RSAC’s RWP Working Group specifically contemplated whether to expand the allowable use of individual train detection in certain instances in the otherwise prohibited “controlled point” locations.  However, the RSAC was not able to reach consensus to add additional locations where the use of individual train detection would be permissible, largely for safety reasons.  FRA does not believe it prudent to expand (or interpret) the use of individual train detection to be permitted at “controlled points” consisting of remote-controlled power switches.  As explained in the original 1996 final rule implementing the RWP regulation, the use of individual train detection is appropriate only in very limited circumstances, and § 214.337(b) expressly states lone workers have the absolute right to use a form of on-track safety other than individual train detection if he or she believes it necessary.  61 FR 65959, 65971.   

The use of individual train detection by a lone worker at power-operated switch installation locations is permitted if:

The signals at these installations do not convey train movement authority. 

The switch installation is not controlled by a train dispatcher or control operator, and is not part of a manual interlocking or controlled point. 

FRA does not believe it prudent to expand the definition of “controlled point” to include all power-operated switches, but rather the guidance above regarding which power-operated switches are understood to constitute “controlled points” will control.  FRA is not expanding the definition to address power-operated switches for two reasons.   First, lone workers performing work at these installations, or at any other location where the use of individual train detection is permitted, always have the absolute right to use a form of on-track safety other than individual train detection.  See § 214.337(b).  Thus, a blanket expansion of the definition to address all power-operated switches is unnecessary from a safety perspective.  Next, the RSAC contemplated variations to the definition as first interpreted by Technical Bulletin G-05-29 in 2005, but declined to do so after deliberation.  The adoption of this definition and the definition of “interlocking, manual” supplant FRA Technical Bulletin G-05-29 upon the effective date of this final rule.  

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§ 214.7 Definitions

Effective Securing Device - means a vandal and tamper resistant lock, keyed for application and removal only by the roadway worker(s) for whom the protection is provided.  In the absence of a lock, it is acceptable to use a spike driven firmly into a switch tie or a switch point clamp to prevent the use of a manually operated switch.  It is also acceptable to use portable derails secured with specifically designed metal wedges.  Securing devices without a specially keyed lock shall be designed in such a manner that they require railroad track tools for installation and removal and the operating rules of the railroad must prohibit removal by employees other than the class, craft, or group of employees for whom the protection is being provided.  Regardless of the type of securing device, the throwing handle or hasp of the switch or derail shall be uniquely tagged.  If there is no throwing handle, the securing device shall be tagged.

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Federal Railroad Administration

Moving America Forward

Next, the existing term “effective securing device” in § 214.7 describes an appurtenance preventing the operation of mechanisms that make non-controlled track inaccessible under § 214.327.  FRA amended the existing term as recommended by the Working Group.  

The amendments to the definition of “effective securing device” in this final rule require that locks used to lock switches or derails for the purpose of providing on-track safety for roadway workers must be keyed to allow for removal by only roadway workers for whom protection is being provided.  In the absence of a lock, the definition would allow a spike to be driven into a switch tie to secure a switch, so long as the spike cannot be removed without the use of railroad track tools.  Clamps and metal wedges (solidly driven on a derail securing it to the rail) without a lock would also be acceptable if they cannot be removed without the use of railroad track tools.  This is to ensure that other employees, such as transportation employees who may attempt to access a track with rolling equipment, could not readily remove such on-track safety protections applied by roadway workers to establish on-track safety. 

To clearly identify effective securing devices, and thus, to prevent railroad employees from being injured by attempts to operate a secured device, the throwing handle, hasp, or keeper of the switch or derail shall have a unique tag which is clearly displayed.  The unique tag must clearly indicate to other railroad employees, such as trainmen, who may attempt to operate a switch that such switch is secured.  If there is no throwing handle, the securing device itself shall be tagged.  Regardless of the type of securing device used, each tag must identify that it is securing an entrance into inaccessible track.  The tag does not have to be “unique” to a specific person or work gang.  Rather, a tag that is craft-specific is considered to be unique.

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Interlocking, Manual - means an arrangement of signals and signal appliances operated from an interlocking machine and so interconnected by means of mechanical and/or electric locking that their movements must succeed each other in proper sequence, train movements over all routes being governed by signal indication. 

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§ 214.7 Definitions

Federal Railroad Administration

Moving America Forward

FRA is also adopting the Working Group’s recommended definition for the new term “interlocking, manual” in this final rule.  As recommended by the Working Group, this definition mirrors the existing definition for the same term in FRA’s signal and train control regulation (§ 236.751), and which was proposed in the NPRM.  The following table incorporates the substance of Technical Bulletins G-05-11 and G-05-29, and summarizes the applicability of individual train detection on various types of track arrangements:

FRA notes again that lone workers performing work at these installations, or any other locations where the use of individual train detection is permitted, have the absolute right to use a form of on-track safety other than individual train detection.  See § 214.337(b).  In addition, FRA wishes to note that aside from power-operated switches, switches that can be manipulated by hand as well as by a train dispatcher or control operator are considered "dual-control switches."  Because these switches can be manipulated by a train dispatcher or control operator and these switches are located within manual interlockings and controlled points , the use of ITD within these installations is prohibited.  Upon the final rule’s effective date, Technical Bulletins G-05-11 and G-05-29 will be supplanted due to the adoption of the definitions of “controlled point” and “interlocking, manual” and the accompanying preamble discussions.

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| Track Arrangement                                                                             | Individual Train Detection permitted |
|-----------------------------------------------------------------------------------------------|--------------------------------------|
| Controlled point/manual interlocking with switches, crossings (diamonds), or moveable bridges | No                                   |
| Controlled point with signals only – see §214.337(c)(3)                                       | Yes                                  |
| Manual interlocking                                                                           | No                                   |
| Automatic interlocking                                                                        | Yes                                  |
| Power-operated switch installations                                                           | See discussion above                 |

Maximum Authorized Speed - means the highest speed permitted for the movement of trains permanently established by timetable/special instructions, general order, or track bulletin.

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§ 214.7 Definitions

Federal Railroad Administration

Moving America Forward

Next, FRA is adopting a new definition for the term “maximum authorized speed” in this final rule.  Existing § 214.329(a) requires that train approach warning be given in sufficient time for a roadway worker to “occupy a previously arranged place of safety not less than 15 seconds before a train moving at the maximum speed authorized on that track can pass the location of the roadway worker.”  Existing § 214.337(c) contains a similar requirement for lone workers.  However, no definition for maximum speed authorized exists in the current RWP regulation.   Accordingly, the Working Group addressed this issue and reached consensus on a definition of the term “maximum authorized speed.”  FRA largely adopted the Working Group’s consensus definition, which, for purposes of part 214, is the permanent speed designated for a track in a railroad’s timetable, special instructions, or bulletin.  The Working Group agreed that using a temporary speed restriction as the basis for determining the appropriate train approach warning distance could pose inherent dangers.  That danger occurs in situations where a party might remove a temporary restriction from a particular segment of track without notifying the roadway work group or lone worker using that temporary speed restriction to determine the appropriate train approach warning distance.  

FRA notes that this new definition also applies in the context of certain new RWP requirements promulgated in the adjacent track rulemaking. 

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On-Track Safety Manual - means the entire set of on-track safety rules and instructions maintained together in one manual designed to prevent roadway workers from being struck by trains or other on-track equipment.  These instructions include operating rules and other procedures concerning on-track safety protection and on-track safety measures. 

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§ 214.7 Definitions

Federal Railroad Administration

Moving America Forward

In the final rule, FRA added a definition for the term “on-track safety manual.”  Existing § 214.309 requires each roadway worker in charge and lone worker to have with them a manual containing the rules and operating procedures governing track occupancy and protection.  The Working Group agreed to recommend consensus amendments to that existing section, where such manual is referred to as an “on-track safety manual.”  As such, the Working Group also came to consensus on a recommended definition for this new term.  FRA largely proposed that consensus definition, which was intended to provide clarity regarding the materials that must be included in the on-track safety manual, as the manual is a critical element of any on-track safety program.  

The on-track safety rules and instructions must be maintained together in one manual, the preamble from the 1996 RWP final rule discussed the need for the manual to be easily accessible from a single source.  It is not acceptable for the required on-track safety materials to be contained in distinct manuals rather than in a single source.  The existing regulation, and the final rule, both require that the on-track safety rules be contained in a single manual.  The 1996 final rule preamble stated, that the single manual may be divided into binders (separate sections) where appropriate, rather than requiring railroads to issue new manuals each time a railroad rule amendment or new section was created.  For example, the manual could be broken into separate binders addressing on-track safety rules, good faith challenge procedures, roadway maintenance machine procedures, etc.  In order to eliminate any confusion on that point, FRA adopted language, expressly stating that a single manual is required.  

FRA further recognized the need that the definition refer to “the entire set of on-track safety rules and instructions” as being required to be contained in the manual.  This language more accurately captures what is required to be contained in the manual, e.g., all rules and instructions relevant to providing on-track safety protections for a roadway work group. 

FRA Technical Bulletins G-05-12 and G-05-25 both addressed concerns regarding the requirement regarding on-track safety manuals.  FRA Technical Bulletin G-05-12 explained that the on-track safety manual could take the form of: 1) one document containing on-track safety procedures, good faith challenge procedures, and on-track safety operating rules of a railroad (absent operating rules not pertaining on-track safety); or 2) a binder system holding together separate documents such as the on-track safety procedures, on-track safety operating rules, and all operating rules/procedures, with the on-track safety procedures and good faith challenge procedures composing tabs or sections of that binder.  

Technical Bulletin G-05-25 explained that all changes to a railroad’s procedures governing on-track safety must be made a part of the on-track safety manual and readily available to roadway workers, as soon as those changes are effective. These changes may be temporarily incorporated into the manual, perhaps through incorporation of bulletins and general orders into the manual.  Changes to the on-track safety manual made via bulletin or general orders must be permanently included when new printings of the on-track safety manual are undertaken.  This final rule’s adoption of the new definition of the term “on-track safety manual”, and the accompanying preamble discussions, have alleviated the need for Technical Bulletins G-05-12 and G-05-25, both of which are supplanted upon the effective date of this final rule.  

For purposes of further discussion regarding the on-track safety manual, FRA again notes that if a railroad chooses not to use certain methods of establishing working limits or on-track safety, it is not necessary to include procedures for establishing those types of on-track safety in its on-track safety manual.  For example, if a railroad chooses not to use “foul time” via § 214.323 as a method of establishing working limits, “foul time” procedures do not need to be included in that railroad’s on-track safety manual.  Likewise, a short line railroad that does not have any controlled track would only utilize § 214.327 (inaccessible track) as a form of working limits, and would not need to include procedures governing the establishment of other forms of working limits.

If a railroad uses electronic display of authorities to establish working limits, as is further contemplated in new § 214.322 below, the use of such display also needs to be addressed in the on-track safety manual.  Part 214 does not prohibit the use of an electronic device that can display the contents of an on-track safety manual as an alternative to a written copy (hard copy) of an on-track safety manual.  So long as all of the contents of the on-track safety manual are readily viewable via an electronic device, FRA does not take exception to the use of such device.  However, if a device malfunctions such that the contents of the on-track safety manual could not be retrieved and viewed, a printed copy of the on-track safety manual must be readily available for a roadway work group to continue its work.  If no alternative on-track safety manual is available, the roadway work group must cease its work and occupy a place of safety.   

FRA also notes that the general procedures applicable to all machines and roadway workers must be included in the on-track safety manual (e.g., machine-to-machine spacing and space between roadway workers and machines as established by existing § 214.341).  However, § 214.341 requires that unique instructions for the safe operation of roadway maintenance machines must be provided and maintained with each machine if such machine is large enough to carry the instruction document.  If feasible, FRA recommends that these machine-specific instructions be incorporated into the on-track safety manual as well.

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Roadway Worker In Charge - means a roadway worker who is qualified under § 214.353 to establish on-track safety for roadway work groups, and lone workers qualified under § 214.347 to establish on-track safety for themselves. 

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§ 214.7 Definitions

Federal Railroad Administration

Moving America Forward

Next, FRA added a definition for the term “roadway worker in charge” in the final rule.  The term is used in existing § 214.321, and is also described interchangeably throughout the existing regulation as the “roadway worker responsible for the on-track safety of others”, the “roadway worker designated by the employer to provide for on-track safety for all members of the group”, the “roadway workers in charge of the working limits”, as well as by other similarly descriptive terms.  The Working Group recommended consensus language for this rulemaking which also uses the term “roadway worker in charge” in several places.  However, that term is not defined in the existing regulation, and the Working Group did not reach agreement on a recommended definition of the term.  

This added definition mirrors the existing definition for the term found in FRA’s Railroad Operating Practices Regulation (see § 218.93).  FRA is also amending numerous sections of part 214 to substitute the term “roadway worker in charge” for the wide variety of different terms listed above which are currently used to describe the roadway worker who is in charge of a roadway work group and establishes on-track safety for that group.

FRA wished to ensure that the amendment not have the unintended consequence of removing lone workers from the application of the affected provisions (e.g, existing reference to “roadway worker” in § 214.319(a) will be “roadway worker in charge” upon the effective date of this final rule). Lone workers are able to establish on-track safety for their own protection, either via individual train detection or by establishing working limits.  It was clearly not FRA’s intent in the final rule to amend subpart C so as to not permit lone worker to establish on-track safety as they are permitted to do currently under the existing RWP regulation.  FRA wishes to emphasize that under this definition a lone worker who is qualified in accordance with § 214.347 may establish the appropriate form of on-track safety for his or herself.  However, if a lone worker is establishing on-track safety for any other roadway workers, he or she must be qualified in accordance with the requirements of § 214.353, which requires, among other items, that qualification be evidenced via a recorded examination.   

Finally, to reiterate certain points made in the preamble discussion due to their safety-critical nature, a roadway worker in charge may only perform watchman/lookout duties so long as the requirements of § 214.329 are met.  Section 214.329(b) requires that watchmen/lookouts “shall devote full attention to detecting the approach of trains and communicating warning thereof, and shall not be assigned any other duties while functioning as watchmen/lookouts.”  Thus, a roadway worker in charge could not perform any other duties, such as providing direction to a roadway work group, while simultaneously serving as a watchmen/lookout.  The limitation on performing other tasks while simultaneously serving as a watchman/lookout severely limits the instances in which a roadway worker in charge may permissibly fill both roles.

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Roadway Maintenance Machines Equipped With A Crane - means any roadway maintenance machine equipped with a crane or boom that can hoist, lower, and horizontally move a suspended load. 

Note: This definition (noted in red above) is reflective of Part 243 effective January 1, 2015 and not contained in the Revision to RWP Rule.

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§ 214.7 Definitions

Federal Railroad Administration

Moving America Forward

The final rule adds a definition for roadway maintenance machines equipped with a crane in order to address the term's use in § 214.357. The definition of this term would mean any roadway maintenance machine equipped with a crane or boom that can hoist, lower, and horizontally move a suspended load.

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Watchman/lookout  - means an employee who has been annually trained and qualified to provide warning to roadway workers of approaching trains or on-track equipment.  Watchmen/lookouts shall be properly equipped to provide visual and auditory warning such as whistle, air horn, white disk, red flag, lantern, fusee.  A watchman/lookout’s sole duty is to look out for approaching trains/on-track equipment and provide at least fifteen seconds advanced warning to employees before arrival of trains/on-track equipment. 

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§ 214.7 Definitions

Federal Railroad Administration

Moving America Forward

The existing definition of a watchman/lookout states, in part, that a watchman/lookout “means an employee who has been annually trained and qualified to provide train approach warning to roadway workers of approaching trains or on-track equipment.”  However, the frequency of “periodic” qualification requirements for additional roadway worker qualifications (e.g., for a lone worker, watchman/lookout, flagman, or roadway worker in charge qualification) is not currently specified.  Existing § 214.349(b) only currently states that “[i]nitial and periodic qualification of a watchman/lookout shall be evidence by demonstrated proficiency,” mirroring the other existing additional roadway worker qualification sections.  FRA considered whether the word “annually” should be removed from existing definition of “watchman/lookout” in order that the definition more accurately reflect both the current and any future RWP refresher qualification and training requirements, and also for purposes of consistency with the other existing additional roadway worker qualification definitions. 

Further, FRA is concerned that some railroads are not providing watchmen/lookouts with any audible or visual warning devices to provide appropriate train approach warning.  The existing definition of the term “watchman/lookout” states, in part, that roadway workers acting as watchmen/lookouts “. . . shall be properly equipped to provide visual and auditory warning, such as whistle, air horn, white disk, red flag, lantern, fusee.”  FRA wishes to clarify in this final rule that the use of such audible and/or visible warning devices are mandatory in order to provide train approach warning under § 214.329.  

In this final rule, FRA is striking the word “annually” from the definition of “watchman/lookout”.  This is for consistency purposes with the definitions of the other additional roadway worker qualifications, and because the “periodic” qualification requirement has never been required to be an “annual” requirement under the RWP regulation.  Only training has been required to be performed on an annual basis since the RWP regulation’s 1997 implementation.  The RSAC consensus recommendation was for a 24-month “periodic” re-qualification requirement, and the training standards rulemaking at 49 CFR part 243 has adopted a three-year (as a minimum) qualification interval.  FRA is not amending the annual training requirement for watchmen/lookouts, or for roadway workers generally.  However, as discussed in the section-by-section analysis for § 214.347, FRA is adopting a definite interval for periodic re-qualification in this final rule. 

Regarding the proper equipment for watchman/lookouts, both the definition of watchman/lookout, and the operative train approach warning regulation at §§ 214.329(c) & (g), already provide that watchmen/lookouts must be properly equipped to provide train approach warning.  As explained in the 1996 final rule implementing subpart C, “[t]his section further imposes a duty upon the employer to provide the watchman/lookout employee with the requisite equipment necessary to carry out his on-track safety duties. It is intended that a railroad’s on-track safety program would specify the means to be used by watchmen/lookouts to communicate a warning, and that they be equipped according to that provision.”  61 FR 65970.  Thus, FRA emphasizes that under the existing RWP regulation that a watchman/lookout must be equipped with the means specified by a railroad’s on-track safety program to properly communicate a warning.  Except in limited circumstances (e.g., a watchman/lookout assigned to provide train approach warning for a single welder and who is located immediately next to the welder to provide a warning), if a railroad does not provide equipment to provide the specified auditory or visual warning to the roadway workers being protected by a watchman/lookout, a violation has occurred.  If an on-track safety program fails to specify the “requisite equipment necessary” for a watchman/lookout to provide on-track safety for a roadway work group, FRA would object to that railroad’s program via the procedures specified in § 214.307 of this part. 

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Railroad bridge workers working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be provided and shall wear protective helmets. 

Helmets required by this section shall conform to the requirements of 29 CFR 1910.135(b), as established by the U.S. Department of Labor, Occupational Safety and Health Administration.

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§ 214.113 Head Protection

Federal Railroad Administration

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In the final rule, FRA amended three existing sections in subpart B (Bridge Worker Protection) to delete the existing incorporations by reference to certain outdated industry standards for personal protective equipment (PPE).  Specifically, §§ 214.113, 214.115, and 214.117, contain incorporations by reference to certain standards governing head, foot, eye, and face protection, respectively.  Those sections were originally promulgated in 1992 when an FRA final rule establishing subpart B was published and referenced standards dating back to 1986.  57 FR 28116 (June 24, 1992).  Although the regulatory requirements have not been substantively updated in some time, the standards themselves have been updated.  Employers and employees might likely not be able to obtain PPE manufactured in accordance with the standards currently incorporated by reference.  As such, FRA proposed to amend these existing sections to reflect that the standards incorporated by reference have been updated.  In doing so, FRA wished to allow for the continued use of any existing equipment which meets the standards currently incorporated by reference in part 214, as well as for the use of equipment meeting updated versions of those standards. 

FRA’s incorporations by reference of PPE standards in subpart B were initially patterned after certain OSHA general industry PPE standards located in Title 29 of the Code of Federal regulations.  OSHA faced a situation similar to that FRA currently faces with regard to updating its PPE incorporations by reference.  As such, OSHA updated those standards in a 2009 final rule (74 FR 46350), and again in a direct final rule in 2012 (77 FR 37587).  OSHA’s updates to the PPE regulations that correspond to FRA’s subpart B PPE regulations (29 CFR 1910.133(b), 1910.135(b), and 1910.136(b)) allow for the continued use of PPE meeting older standards which had previously been incorporated by reference, as well as the use of PPE meeting updated versions of those same standards.  OSHA’s corresponding regulation also permits “employers to use subsequent national consensus standards that they can demonstrate provide the requisite level of employee protection.”  74 FR 46353.  OSHA has indicated that that agency will update the standards referenced in its PPE regulations via direct final rulemaking as new editions of those standards become available.  Id.  

FRA is deleting its existing subpart B incorporations by reference, and is replacing those incorporations by reference by requiring that PPE comply with OSHA’s corresponding general industry regulations.  The setting of PPE standards falls more appropriately within OSHA’s area of expertise, and that agency is better suited to update these standards as appropriate.  As explained in the preamble to the 1992 FRA final rule, in its place, § 214.113 will now reference the requirements of 29 CFR 1910.135(b), OSHA’s general industry head protection PPE regulation.  Section 1910.135(b) incorporates the updated versions of that ANSI national standard.  In a direct final rule published in 2012 (77 FR 37587), OSHA deleted reference to ANSI standard Z89.1-1986, but explained that this deletion would have “. . .no affect on employers because, in view of the limited useful life of protective helmets, the Agency assumes that no protective helmets currently are available or in use that manufacturers tested in accordance . . .” with that outdated 1986 standard.  77 FR 37597.  FRA notes that in the unlikely event that head protection meeting only the 1986 standard is still in use, that the amendment to this section does not require employers to update or replace their head-protection equipment.  Any updated head protection that is acquired must meet one of the three updated versions of that standard that are incorporated by reference at § 1910.135.  

Thus, via the amendments to this section, equipment meeting the standard currently incorporated by reference in existing § 214.113 would be permitted to be used indefinitely, and equipment meeting more updated versions of that standard would also be permitted to be used.  This amendment helps facilitate compliance with Federal regulation, and also eliminate any economic concerns associated with updating PPE standards.  Further, as mentioned above, 29 CFR 1910.135(b)(2) provides that head protection that an employer demonstrates is “at least as effective as head protection devices that are constructed in accordance with ” the consensus standards “will be deemed to be in compliance with the requirements of [1910.135(b)].”  Therefore, in interim time periods between when updated versions of the standards incorporated by reference are introduced and OSHA decides to adopt those standards in a direct final rulemaking, PPE acquired by railroads or employers that conforms to an updated version of the standards incorporated by reference may still comply with the requirements of OSHA’s regulation. 

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The railroad or railroad contractor shall require railroad bridge workers to wear foot protection equipment when potential foot injury may result from impact, falling or flying objects, electrical shock or burns, or other hazardous condition. 

Foot protection equipment required by this section shall conform to the requirements of 29 CFR 1910.136(b), as established by the U.S. Department of Labor, Occupational Safety and Health Administration.

.

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§ 214.115 Foot Protection

Federal Railroad Administration

Moving America Forward

Section 214.115, governs foot protection for bridge workers.  Similar to the amendment to § 214.113 discussed above, FRA is updating this section by deleting the existing incorporation by reference to ANSI American National Standard Z41-1991, Standard for Personal Protective Equipment Footwear.  In its place is reference to OSHA’s general industry foot protection regulation at 29 CFR 1910.136(b).   Section 1910.136(b) permits the use of foot protection meeting ANSI standard Z41-1991, and also permits the use of PPE meeting two updated versions of that standard.  Section 1910.136(b) also reflects that ANSI Z41 was withdrawn and replaced by two ASTM standards in 2005.  The amendment to this section helps eliminate any potential costs associated with the continual updating of PPE standards, while also facilitating compliance with Federal regulation. 

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Railroad bridge workers shall be provided and shall wear eye and face protection equipment when potential eye or face injury may result from physical, chemical, or radiant agents.

Eye and face protection equipment required by this section shall conform to the requirements of 29 CFR 1910.133(b), as established by the U.S. Department of Labor, Occupational Safety and Health Administration..

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§ 214.117 Eye and Face Protection

Federal Railroad Administration

Moving America Forward

Finally, § 214.117, governs eye and face protection for bridge workers.  Similar to the amendments to §§ 214.113 and 214.115 discussed above, FRA is updating this section by deleting the existing incorporation by reference to ANSI Standard Z87.1-1989, Practice for Occupational and Educational Eye and Face Protection.  In its place, this amended section cross-references OSHA’s general industry foot protection regulation at 29 CFR 1910.133(b).   Section 1910.133(b) permits the continued use of eye and face protection meeting ANSI standard Z87.1-1989, and also permits the use of PPE meeting two updated versions of that standard.  This section as amended helps eliminate any potential costs associated with the continual updating of PPE standards, while also facilitating compliance with Federal regulation.

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Face and eye protection equipment required by this section shall be kept clean and in good repair. Use of equipment with structural or optical defects is prohibited. 

Railroad bridge workers whose vision requires the use of corrective lenses, when required by this section to wear eye protection, shall be protected by goggles or spectacles of one of the following types: 

Spectacles whose protective lenses provide optical correction the, frame of which includes shielding against objects reaching the wearer's eyes around the lenses; 

Goggles that can be worn over corrective lenses without disturbing the adjustment of the lenses; or 

Goggles that incorporate corrective lenses mounted behind the protective lenses.

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§ 214.117 Eye and Face Protection Cont’d

Federal Railroad Administration

Moving America Forward

  No changes were made in the final rule to this section.

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The purpose of this subpart is to prevent accidents and casualties caused by moving railroad cars, locomotives or roadway maintenance machines striking roadway workers or roadway maintenance machines.

This subpart prescribes minimum safety standards for roadway workers. Each railroad and railroad contractor may prescribe additional or more stringent operating rules, safety rules, and other special instructions that are consistent with this subpart.

This subpart prescribes safety standards related to the movement of roadway maintenance machines where such movements affect the safety of roadway workers.  Except as provided for in § 214.320 of this part, this subpart does not otherwise affect movements of roadway maintenance machines that are conducted under the authority of a train dispatcher, a control operator, or the operating rules of the railroad.

16

§ 214.301 Purpose and Scope

Federal Railroad Administration

Moving America Forward

In the NPRM, FRA proposed to amend existing paragraph (c) of this section.  FRA proposed regulatory text to clarify existing paragraph (c)’s meaning and also to address a certain situation that has arisen since the 1996 promulgation of the RWP regulation.  FRA proposed regulatory text that explicitly stated that while roadway maintenance machines are traveling under the authority of a train dispatcher, a control operator, or the operating rules of the railroad, on-track safety in accordance with part 214 is not required to be established for such movements.  That proposed amendment was not intended to be substantive in nature but rather to clarify the existing meaning of that paragraph.  An example of a roadway maintenance machine movement permitted to be conducted under this section would be the movement of a roadway maintenance machine between two separate work locations.  Another example would be when traveling to or from a work location, or traveling between a worksite and a repair or storage facility.  However, in this final rule FRA has decided to largely keep paragraph (c) as it currently exists, as the meaning of that section is already understood and the preamble discussions in both the NPRM and here further reinforces that meaning.  The only amendment FRA has made is to make reference to specific new requirements contained in new § 214.320.  Section 214.320 pertains to the NPRM’s proposed rule text and request for comment in § 214.301 related to the movement of roadway maintenance machines over non-controlled track equipped with automatic block signal (ABS) systems where trains are permitted to travel at greater than restricted speed.  The discussion of that issue, and of the comments received, appears below in the section-by-section analysis for new § 214.320.  Based on the preamble discussions in the NPRM and in this final rule, and the amendments to part 214 being made in this final rule (§§ 214.301, .320, and .329), FRA notes that Technical Bulletin G-05-14 is supplanted upon the effective date of this final rule. 

16

Remove and reserve § 214.302. 

Remove and reserve § 214.305. 

17

§ 214.302 Information Collection Requirements

and § 214.305 Compliance Dates 

Federal Railroad Administration

Moving America Forward

Section 214.302	Information collection requirements.

As proposed in the NPRM, FRA is deleting this existing section from part 214.  FRA received no comments in response to this proposal.  This section is both outdated and superfluous, as the Paperwork Reduction Act section below lists all of the final information collection requirements pertinent to each section of part 214 affected by this final rule.  For a detailed summary of the information collection requirements, please see the Paperwork Reduction Act discussion in Section XI of the preamble below.

Section 214.305	Compliance dates.

As proposed in the NPRM, FRA is deleting existing § 214.305, as this section is now obsolete.   FRA received no comments in response to this proposal.  Section 214.305 only referenced the phase-in dates by which a railroad’s on-track safety program was required to comply with the original 1996 RWP rulemaking.  Those dates are no longer applicable, and existing railroads’ programs have been required to comply with the RWP regulation since those dates in 1997.  Further, if a new railroad that is subject to part 214 is formed, that railroad’s program is required to comply with the requirements of the existing RWP regulation upon commencing operations, as already established by existing §§ 214.301, 214.303, 214.317, and 214.335 and § 214.307 as amended in this final rule.  

17

Each railroad subject to this part shall maintain and have in effect an on-track safety program which complies with the requirements of this subpart.  New railroads must have an on-track safety program in effect by the date on which operations commence.  The on-track safety program shall be retained at a railroad’s system headquarters and division headquarters, and shall be made available to representatives of the FRA for inspection and copying during normal business hours.  Each railroad to which this part applies is authorized to retain its program by electronic recordkeeping in accordance with §§ 217.9(g) and 217.11(c) of this subchapter.  

Each railroad shall notify, in writing, the Associate Administrator for Safety, Federal Railroad Administration, RRS-15, 1200 New Jersey Avenue, SE., Washington, DC 20590, not less than one month before its on-track safety program becomes effective. The notification shall include the effective date of the program and the name, title, address and telephone number of the primary person to be contacted with regard to review of the program. This notification procedure shall also apply to subsequent changes to a railroad's on-track safety program.

18

§ 214.307 On-Track Safety Programs

Federal Railroad Administration

Moving America Forward

Existing section 214.307 requires railroads to notify FRA in writing at least one-month in advance of its on-track safety program becoming effective and sets forth FRA’s formal review and approval process for such plans.  FRA has amended this section to modify the existing on-track safety program formal approval process.  The new rule rescinds the requirement in this section that railroads notify FRA not less than one month before the effective date of their on-track safety programs.  FRA has also modified the requirement that FRA review and approve every railroad’s program.  Instead, FRA will be permitted to review a railroad’s on-track safety program upon request, as wholesale review of every aspect of a railroad’s program that took place when the original rule was promulgated in 1996 is not warranted.  FRA proposed these amendments with the intention of alleviating burdens as part of a retrospective review of subpart C.    

FRA has retained the advance notification requirement regarding adoption of a new program or amendments to a railroad’s existing program.  In the event that there are safety or compliance concerns implicated, FRA agrees that it should continue to have advance notice in order to review a new on-track safety program (or a railroads amendments to a program).  In this respect, there will be no change to existing § 214.307’s notification requirement.  However, in this final rule FRA is still alleviating burdens by eliminating a required formal review process for each new program submitted to FRA and for each amendment to a program.  Rather, those programs only have to be made available to FRA upon request in the event FRA wishes to review a program or an amendment to a program.  FRA can better utilize its limited resources to address legitimate safety concerns brought to its attention, rather than conducting mandatory formal reviews of on-track safety programs, the bulk of whose contents have already been established and approved by FRA for many years, as the industry now has much experience with the requirements of subpart C. 

In order to continue require advance notification to FRA of a new program or of changes to an existing program as discussed above, FRA has re-designated existing paragraph (a) as paragraph (b), and has eliminated reference to the address where a program is available for review.  FRA has designated the system and division headquarters as the locations where a railroad’s program must be available to FRA.

18

A railroad's on-track safety program will take effect by the established compliance dates in §214.305, without regard to the date of review or approval by the Federal Railroad Administration. Changes to a railroad's program will take effect on dates established by each railroad without regard to the date of review and approval by the Federal Railroad Administration.

19

§ 214.307 On-Track Safety Programs Cont’d

Federal Railroad Administration

Moving America Forward

FRA is also amending this section to eliminate reference to the compliance dates in § 214.305, because as explained in prior slides, those dates are obsolete and this final rule deletes § 214.305.  

19

Upon review of a railroad’s on-track safety program, the FRA Associate Administrator for Railroad Safety/Chief Safety Officer may, for cause stated, disapprove the program.  Notification of such disapproval shall be made in writing and specify the basis for the disapproval decision.  If the Associate Administrator for Railroad Safety/Chief Safety Officer disapproves the program,

The railroad has 35 days from the date of the written notification of such disapproval to:

Amend its program and submit it to the Associate Administrator for Railroad Safety/Chief Safety Officer for approval; or 

Provide a written response in support of its program to the Associate Administrator for Railroad Safety/Chief Safety Officer.

FRA’s Associate Administrator for Railroad Safety and Chief Safety Officer will subsequently issue a written decision either approving or disapproving the railroad’s program.

Failure to submit to FRA an amended program or provide a written response in accordance with this paragraph will be considered a failure to implement an on-track safety program under this subpart.

20

§ 214.307 On-Track Safety Programs Cont’d

Federal Railroad Administration

Moving America Forward

New paragraph (c) mirrors provisions that FRA recently adopted elsewhere in the Federal railroad safety regulations (See 49 CFR 220.313).  The FRA Associate Administrator for Railroad Safety/Chief Safety Officer may disapprove a program for cause stated, and a railroad would be required to respond within 35 days by either amending its program and submitting those proposed amendments for approval, or by providing a written response in support of its program.  FRA’s Associate Administrator for Railroad Safety/Chief Safety Officer would subsequently render a decision in writing either approving or disapproving the program, and FRA would consider a failure to submit an amended program or provide a written response as required by the section to be a failure to implement a program under this part. 

With the deletion of § 214.305, however, FRA is making it absolutely clear that each railroad to which part 214 applies must have in effect an on-track safety program upon commencing operations.  Railroads must have an on-track safety program in effect by the date on which operations commence.  

20

The applicable on-track safety manual (as defined by § 214.7) shall be readily available to all roadway workers.  Each roadway worker in charge responsible for the on-track safety of others, and each lone worker, shall be provided with and shall maintain a copy of the on-track safety manual.

When it is impracticable for the on-track safety manual to be readily available to a lone worker, the employer shall establish provisions for such worker to have alternative access to the information in the manual. 

Changes to the on-track safety manual may be temporarily published in bulletins or notices.  Such publications shall be retained along with the on-track safety manual until fully incorporated into the manual.

21

§ 214.309 On-Track Safety Manual

Federal Railroad Administration

Moving America Forward

Existing § 214.309, titled “On-track safety program documents,” mandated, in part, that rules and operating procedures governing track occupancy and protection be maintained together in one manual and be readily available to all roadway workers.  The revisions to this section in this final rule incorporate the definition for the new term “on-track safety manual”.  That definition and the discussion above establish the minimum contents such manual should include.  FRA also amended the title of this section to more accurately reflect the update of this section.

New paragraph (a) of this section incorporates the term “on-track safety manual”, and then repeats the text of § 214.309 as it currently exists.  FRA added the words “in charge” to the second sentence, for consistency purposes with the references to “roadway workers in charge” that are being added throughout subpart C in this final rule.  Paragraph (a) now refers to “[e]ach roadway worker in charge responsible for the on-track safety of others” as being required to be provided with and maintain an on-track safety manual.   

New paragraph (b) was intended to address the difficulty that a lone worker, such as a signal maintainer or a walking track inspector, might experience in carrying a large on-track safety manual.  A railroad must provide for an alternate process for such a lone worker to obtain on-track safety information.  The alternate process may include the use of a phone or radio for the lone worker to contact an employee who has the contents of the on-track safety manual readily accessible.  FRA has added the words “on-track safety” before the word “manual”, which appears twice in the paragraph.  This references consistently and accurately the new term “on-track safety manual” throughout this section.  Rather than referring to situations where it was impracticable to “carry” the on-track safety manual, FRA has amended the text language to refer to situations where it is “ . . .impracticable for the on-track safety manual to be readily available. . .” to a lone worker.  It is not the intent of part 214 that a lone worker actually “carry” the on-track safety manual at all times, but, rather, that the manual be readily available to a lone worker.  

With regard to paragraph (b), FRA notes that it has adopted the Working Group’s consensus recommendation regarding alternative access to the on-track safety manual being addressed in lone working training. However, FRA added this training requirement in § 214.347 instead of in this section in the interests of simplicity and ease of use of the regulations (putting a training requirement in the lone worker training section itself).

New paragraph (c) of this section recognizes that changes are often made to on-track safety rules and procedures.  Often, it is necessary for a railroad to publish and distribute new or revised on-track safety measures or protection rules on an as-needed basis before those documents can be permanently incorporated into in a revised manual, or to sometimes publish temporary changes to a program via bulletin or notice.  While these amendments to an on-track safety program must be incorporated into an on-track safety manual, existing § 214.309 does not include any allowance for the temporary nature of some documents or the practical difficulties with incorporating such changes immediately after issuance.  This new text accounts for updates or changes to the on-track safety manual and, along with the new definition of the term “on-track safety manual”, would supplant existing FRA Technical Bulletin G-05-25.  

FRA remove the word “carried” from the second sentence of paragraph (c) as noted it in the NPRM, and replaced it with the word “retained” for purposes of clarity, as the bulletins or notices are not always literally “carried” by a roadway worker in charge or lone worker. 

FRA is not requiring that employers update the on-track safety manual at least annually to incorporate any relevant changes.  FRA wishes to unnecessarily avoid imposing additional costs on the industry where FRA does not have information that a lack of updates has regularly caused problems or accidents in the past.  Even so, FRA does encourage regular updates to an entire on-track safety manual.  Such updates would likely be of benefit to the roadway workers using on-track safety manuals with regard to the ease of reference/use to applicable on-track safety rules.

As an added note; although not mentioned in the Preamble or Rule text, an electronic copy of the on-track safety manual on a Smart-Phone or similar device will suffice for purposes of complying with this section; so long as the entire OTS manual and related bulletins modifying the OTS manual, if not included are readable from the device.

21

When an employer assigns a duty to a roadway worker that calls for that employee to foul a track, the employer shall provide the employee with an on-track safety job briefing that, at a minimum, includes the following:

Information on the means by which on-track safety is to be provided for each track identified to be fouled;

Instruction on each on-track safety procedure to be followed;

Information about any adjacent tracks, on-track safety for such tracks, if required by this subpart or deemed necessary by the roadway worker in charge, and identification of any roadway maintenance machines that will foul such tracks; and

A discussion of the nature of the work to be performed and the characteristics of the work location to ensure compliance with this subpart; and

Information on the accessibility of the roadway worker in charge and alternative procedures in the event the roadway worker in charge is no longer accessible to the members of the roadway work group.

22

§ 214.315 Supervision and Communication

Federal Railroad Administration

Moving America Forward

Existing § 214.315 mandates that job briefings be provided to roadway workers assigned duties that require the fouling of track and sets forth certain communication requirements between members of a roadway work group, and, in the case of a lone worker, between that lone worker and his or her supervisor or other designated employee.  The Working Group recommended that FRA add new requirements to existing § 214.315.  Those items largely govern the substance of job briefings performed prior to roadway workers fouling track, and also change reference to these job briefings to “on track safety job briefing[s]”.  Most of those consensus recommendations were addressed in FRA’s adjacent track rulemaking (§ 214.336).  74 FR 74614.  However, one item that was not included in the adjacent track rulemaking involves information during the on-track safety job briefing regarding the accessibility of the roadway worker in charge and alternative procedures in the event the roadway worker in charge is not accessible to the members of the roadway work group.  FRA is adopting the consensus language in this final rule. 

As a roadway worker in charge is the person who establishes and directs the on-track safety for a roadway work group, it is critical that each roadway worker in a roadway work group have access to the roadway worker in charge.  Access is necessary where a member of the group invokes a good faith challenge, or where he or she has other questions concerning the established on-track safety protection.  Thus, a roadway worker in charge must be located in the immediate vicinity of the work activity.  As discussed in FRA Technical Bulletin G-05-07, sometimes it may be necessary for a roadway worker in charge to depart a work location for a short period to travel to another area encompassing the same work activity (e.g., to conduct on-track safety checks throughout a large mechanized production activity).  During such periods where the roadway worker in charge may be away from a work site for a short period, it is imperative the roadway work group have a readily available means to communicate with the roadway worker in charge.  When a roadway worker in charge departs a work site for an extended period and is not readily available to communicate with members of the roadway work group, a substitute employee with the relevant qualifications must be designated.  

Although FRA Technical Bulletin G-05-07 stated that “’[w]hen a RWIC departs a work site for an extended period, a substitute employee with the relevant qualifications may be designated.’  Emphasis added.”  FRA in the final rule uses the word “must”, but emphasizes that the preamble discussion applies when the roadway worker is not readily available to communicate with members of the roadway work group (e.g., leaves the work location and is not readily available via radio, phone, or other authorized means of communication).  In such situations, the roadway work group members do not have a roadway worker in charge, as he or she is not at the work group’s location and cannot communicate with the work group.  In such situations, if questions or problems arise with regard to on-track safety, there is no designated roadway worker in charge available to safely address such issues in compliance with part 214.  Thus, if a roadway worker in charge departs a work location and is not readily available to communicate with members of the roadway work group, a substitute employee with the relevant qualifications must be designated.  FRA notes that if any working limits authorities are involved, the change in the roadway worker in charge designation must be formally addressed in the railroad operating rule.  

22

A job briefing for on-track safety shall be deemed complete only after the roadway worker(s) has acknowledged understanding of the on-track safety procedures and instructions presented.

Every roadway work group whose duties require fouling a track shall have one roadway worker in charge designated by the employer to provide on-track safety for all members of the group. The designated person shall be qualified under the rules of the railroad that conducts train operations on those tracks to provide the protection necessary for on-track safety of each individual in the group. The responsible person may be designated generally, or specifically for a particular work situation.

23

§ 214.315 Supervision and Communication

Federal Railroad Administration

Moving America Forward

FRA has made a minor change to existing § 214.315(b).  FRA replaced the word “worker” in the first sentence of that paragraph with the word “worker(s)”, merely to reflect that roadway work groups often include multiple roadway workers. 

Existing paragraphs (c) and (d) of this section have been amended by adding the new term “roadway worker in charge” to the first sentence of each of those paragraphs.  The new term replaces the existing language in those paragraphs that generically refers to the person or roadway worker designated to provide on-track safety for a roadway work group.  It is generally understood by the industry that this person is the “roadway worker in charge.”  This amendment, along with the new definition for that term, only acknowledge this understanding and provide uniformity of reference to “roadway worker[s] in charge” in the regulation text.

23

Before any member of a roadway work group fouls a track, the roadway worker in charge designated under paragraph (c) of this section shall inform each roadway worker of the on-track safety procedures to be used and followed during the performance of the work at that time and location.  Each roadway worker shall again be so informed at any time the on-track safety procedures change during the work period. Such information shall be given to all roadway workers affected before the change is effective, except in cases of emergency. Any roadway workers who, because of an emergency, cannot be notified in advance shall be immediately warned to leave the fouling space and shall not return to the fouling space until on-track safety is re-established.

Each lone worker shall communicate at the beginning of each duty period with a supervisor or another designated employee to receive an on-track safety job briefing and to advise of his or her planned itinerary and the procedures that he or she intends to use for on-track safety. When communication channels are disabled, the job briefing shall be conducted as soon as possible after the beginning of the work period when communications are restored.

24

§ 214.315 Supervision and Communication

Federal Railroad Administration

Moving America Forward

See Notes text of previous slide for explanation to changes made to existing paragraph (d).

Finally, FRA amended the first sentence of existing paragraph (e) of this section to replace the words “job briefing” with “on-track safety job briefing”, merely for uniformity to reflect the Working Group’s consensus recommendation regarding job briefings as referred to in paragraph (a) of this section.

24

Each employer subject to the provisions of this part shall provide on‐track safety for roadway workers by adopting a program that contains specific rules for protecting roadway workers that comply with the provisions of §§ 214.319 through 214.337 of this part.  

Roadway workers may walk across any track provided that they can safely be across and clear of the track before a train or other on-track equipment would arrive at the crossing point under the following circumstances:

Employers shall adopt, and roadway workers shall comply with, applicable railroad safety rules governing how to determine that it is safe to cross the track before starting across;

Roadway workers shall move directly and promptly across the track; and

On-track safety protection is in place for all roadway workers who are actually engaged in work, including inspection, construction, maintenance or repair, and extending to carrying tools or material that restricts motion, impairs sight or hearing, or prevents an employee from detecting and moving rapidly away from an approaching train or other on-track equipment.

25

§ 214.317 On-Track Safety Procedures, Generally

Federal Railroad Administration

Moving America Forward

Currently, § 214.317 generally requires employers to provide on-track safety for roadway workers by adopting on-track safety programs compliant with §§ 214.319 through 214.337.  FRA has made three substantive changes to this existing section.  Two of the amendments were consensus recommendations of the Working Group and would impose requirements for roadway workers who walk across railroad track and provide for new allowances when snow removal or weed spraying operations are conducted on non-controlled tracks.  FRA has also added rule text on the use of tunnel niches or clearing bays as the pre-determined place of safety (PPOS) that may be slightly less than four feet from the field side of the near rail, and whether to address such situations in the final rule.  FRA has chosen to add a new paragraph (d) addressing such tunnel niches in this final rule.  

FRA has re-designated the existing text of § 214.317 as paragraph (a) of this section in order to account for the additional proposed amendments adding new paragraphs.  

Next, consistent with the consensus recommendation of the Working Group, FRA has adopted a new paragraph (b) addressing procedures for roadway workers to walk across railroad track.  This new section addresses the practical reality that roadway workers often have to walk across tracks while not directly engaged in activities covered by the existing RWP regulation.  For example, a roadway worker might incidentally walk from a work site on a track in which working limits are in effect to a vehicle adjacent to the right of way.  While walking to a vehicle, a roadway worker may have to cross over other “live” tracks where working limits or another form of on-track safety is not in effect.  This section is intended to prevent roadway workers from being struck by trains while incidentally crossing track, while at the same time recognizing the need for procedures enabling roadway workers to cross tracks safely without the need for formal on-track safety to be in place.    

Proposed paragraph (b) in the NPRM would have required that if roadway workers walked across track they must have first stopped and looked in all directions from which a train or other on-track equipment could approach before starting across, in order to ensure they may safely clear the track before the arrival of any train or other on-track equipment.  The proposal was intended to provide an opportunity for roadway workers to physically stop what they are doing and consider the on-track circumstances before proceeding across live track.  

There was much debate in post-Working Group comments regarding whether to permit roadway workers to walk across more than one track at a time without first stopping and looking before crossing each track.  FRA requested additional comment in the NPRM on that point.  Comments received in opposition to requiring roadway workers to stop before crossing each track ranged from: “A person who would attempt to cross a track without proper sight distance or in a high traffic area is not likely to stop and look in all directions anyway, so the utility of such a provision would be minimal”.  A requirement to stop was: “1) unnecessary; 2) would cause delays; 3) could lead to increases in potential for slips, trips, and falls; and 4) was over prescriptive, and could subject roadway workers to abuse by managers or FRA inspectors conducting safety audits”.  And “there could be no expectation that such a requirement would regularly be followed, and that railroads would be put in the position of being liable for such noncompliance”.   

After evaluating the comments, FRA has struck the requirement that roadway workers stop and look in all directions before crossing track from this final rule.  There appeared to be unanimous opposition from commenters regarding the requirement to stop for a variety of reasons mentioned above, and the proposed requirement to “look in all directions from which a train could approach” lacked common support among all commenters.  That requirement would also be virtually impossible for FRA to enforce, and via common sense is obviously already necessary for a roadway worker to make the determination whether he or she can “safely be across and clear of the track before a train or other on-track equipment would arrive at the crossing point . . .”, as the remaining portion of paragraph (b) would require.  Thus, while striking the text regarding stopping and looking before crossing each track in this final rule, FRA is adding the remaining consensus language of paragraph (b), which includes requirements regarding: 1) the adoption (and compliance with) rules governing how to determine whether it is safe to cross track; 2) roadway workers moving directly and promptly across track; and 3) on-track safety for roadway workers who are actually engaged in work, to include situations where the carrying of tools or material restricts motion, impairs sight or hearing, or prevents an employee from detecting and moving rapidly away from an approaching train or other on-track equipment. 

FRA also notes that when a roadway worker fouls track to install a device such as a portable derail or temporary sign to delineate working limits, on-track safety is required to be established.  This new paragraph would not affect that existing requirement.  FRA also does not intend for this new paragraph (b) to apply to what is commonly referred to as “casual fouling” as explained in the preamble, and is also not intended to affect how roadway workers move over highway-rail grade crossings.  The movement of workers or equipment over designated public or private highway-rail grade crossings should occur in accordance with traffic laws and railroad safety rules (e.g., adherence to active and passive warning devices).  Trains always have the right-of-way at highway-rail grade crossings.  FRA notes that if any type of work activity as regulated under existing part 214 occurs at a highway-rail grade crossing (e.g., when “roadway workers” pave a crossing, replace rail, perform repairs on crossing warning devices, etc.), such an activity would require that an appropriate form of on-track safety be established.

The Working Group also recommended language for a new paragraph (b)(4) of this section, requiring that a railroad’s safety rules governing walking across railroad tracks be included in all roadway worker training. FRA has adopted this recommended training requirement in the roadway worker training provision at § 214.345.  That provision is discussed in the slide for § 214.345 below. 

25

On non-controlled track, on-track roadway maintenance machines engaged in weed spraying or snow removal may proceed under the provisions of § 214.301(c), under the following conditions: 

Each railroad shall establish and comply with an operating procedure for on-track snow removal and weed spray equipment to ensure that:

All on-track movements in the affected area are informed of such operations;

All on-track movements shall operate at restricted speed as defined in §214.7, except on other than yard tracks and yard switching leads, where all on-track movements shall operate prepared to stop within one-half the range of vision but not exceeding 25 mph;

A means for communication between the on-track equipment and other on-track movements is provided; and

Remotely controlled hump yard facility operations are not in effect, and kicking of cars is prohibited unless agreed to by the roadway worker in charge.

Roadway workers engaged in such snow removal or weed spraying operations subject to this section shall retain an absolute right to use the provisions of §214.327 (inaccessible track).

26

§ 214.317 On-Track Safety Procedures, Generally

Federal Railroad Administration

Moving America Forward

Next, the Working Group also provided recommended consensus language pertaining to on-track snow removal and weed spraying on non-controlled track.  FRA has adopted this provision in a new § 214.317(c).  This provision permits on-track snow removal and weed spraying operations on non-controlled track without requiring that such track first be made inaccessible in accordance with § 214.327.  The provision was crafted due to the difficulty of establishing working limits on non-controlled track for the operation of equipment that moves over long distances, and where there are limited to no on-ground work activities being conducted by roadway workers.  

The introductory text of paragraph (c) contains the permissive language which would allow weed spraying and snow removal operations to proceed under the provisions of § 214.301, with the limitations and/or conditions for utilizing that permissive provision listed in paragraphs (c)(1)-(c)(4) of this new section.  FRA considered, but then rejected, expanding this provision to also include inspection activities.  Inspection activities were not contemplated by the Working Group, and FRA did not propose such in the NPRM so to allow other parties to comment on the potential expansion of this provision.  Further, FRA declines to expand this provision mainly for safety reasons and to avoid unintended consequences of such an expansion.  “Inspection” can potentially entail many different roadway worker activities, and are not of the specialized and more limited nature of the snow removal and weed spray operations that the Working Group addressed.  Further, § 214.301 already covers certain inspection activities while roadway maintenance machines are in “travel” mode, and hi-rail inspection activities are also already subject to certain on-track safety exclusions under § 214.336 of this part.  FRA is retaining the existing on-track safety requirements for work activities not specifically addressed by the Working Group.  

Paragraph (c)(1) requires that each railroad adopt and comply with a procedure for on-track snow removal and weed spraying operations.  Paragraph (c)(1)(i) is to ensure that all other persons conducting on-track movements in the affected area are informed of the snow removal or weed spraying operations.  FRA recognizes that there may be locations with poor radio reception, thereby making it difficult to contact other persons conducting on-track movements.  However, in areas without radio reception it may be likely that there are no other persons conducting on-track movements in the “affected area” that would be required to be notified.  Further, there are methods other than via radio to make the notification if a railroad wishes to utilize the exception in § 214.317(c).  

FRA also emphasizes that this is just an exception to the requirement that on-track safety be established in certain instances, and FRA anticipates that in the majority of instances that this exception can be utilized that radio reception will not be an issue.  In the instances where radio reception is an issue and there is no other way to make notification to other on-track movements in the affected area, railroads will have to abide by the existing methods of establishing on-track safety to perform such work. 

Paragraph (c)(1)(ii) requires that the adopted procedure ensure that all such weed spraying and snow removal operations operate at a speed not greater than restricted speed as currently defined in § 214.7, except on other than yard tracks and yard switching leads, where movements may operate at no more than 25 miles-per-hour (mph) and be prepared to stop within one-half the range of vision.  Paragraph (c)(1)(iii) requires that the procedure adopted by a railroad ensures there is a means of communication between on-track equipment conducting snow removal and weed spraying operations and any other on-track movements in the area (which FRA anticipates would be via radio communication).  Paragraph (c)(1)(iv) prohibits remotely controlled hump yard facility operations from being in effect while snow removal or weed spraying operations are in progress, and also prohibits the kicking of cars unless agreed to by the roadway worker in charge of the snow removal or weed spraying operation.  This last requirement is intended to help ensure that there is no free rolling equipment in the vicinity of on-track snow removal or weed spraying operations.  Thus, before machines could operate under this provision in remotely controlled hump yard facilities, humping operations must be suspended.  

Note the language regarding the status of hump operations in the first sentence of proposed  paragraph (c)(1)(iv) reads “in effect”, rather than “in progress”.  FRA is using the term “in effect”, as that term is more inclusive as hump operations might be “in effect” but not actually “in progress” (e.g., cars not literally being humped right at the moment that weed spraying operations begin).  If “hump yard operations are not ‘in effect’, that would mean that humping operations have been suspended until released back to the hump by the RWIC.  FRA is taking this position for safety reasons.  It was not intended that this provision would be utilized to conduct the specified roadway worker activities just because at a particular moment cars were not being humped (“in progress”), but rather, that no humping operations could take place until the roadway work group utilizing this section had reported clear of hump yard tracks where the possibility of being struck by humped cars was present. 	

It is not FRA’s intent that the only way in which the allowances in this section may be utilized is if an entire classification yard is shut down.  Rather, FRA’s intent is that the hump operations must not be in effect for the tracks (or group of tracks) that would be affected by equipment being humped.  For example, under this section it is permissible for a block to be placed on a group of tracks within a classification yard where snow blowing activities were taking place, such that equipment could not be humped into those tracks until the roadway work group utilizing this section had reported clear of those tracks.  

Paragraph (c)(2) provides that roadway workers engaged in snow removal or weed spraying operations retain an absolute right to utilize the provisions of § 214.327 (inaccessible track). This proposal parallels existing § 214.337(b), which governs on-track safety procedures for lone workers, and would permit a roadway worker to establish on-track safety by making the track inaccessible in accordance with § 214.327.

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On non-controlled track, on-track roadway maintenance machines engaged in weed spraying or snow removal may proceed under the provisions of § 214.301(c), under the following conditions: 

Roadway workers assigned to work with this equipment may line switches (or derails operated via a switch stand) for the machine’s movement but shall not engage in any roadway work activity unless protected by another form of on-track safety.  

Each roadway maintenance machine engaged in snow removal or weed spraying under this provision shall be equipped with and utilize:

An operative 360-degree intermittent warning light or beacon;

Work lights, if the machine is operated during the period between one-half hour after sunset and one-half hour before sunrise or in dark areas such as tunnels, unless equivalent lighting is otherwise provided;

An illumination device, such as a headlight, capable of illuminating obstructions on the track ahead in the direction of travel for a distance of 300 feet under normal weather and atmospheric conditions;

A brake light activated by the application of the machine braking system, and designed to be visible for a distance of 300 feet under normal weather and atmospheric conditions; and

A rearward viewing device, such as a rearview mirror.

27

§ 214.317 On-Track Safety Procedures, Generally

Federal Railroad Administration

Moving America Forward

Paragraph (c)(3) provides that roadway workers engaged in snow removal or weed spraying operations subject to § 214.317, are permitted to line switches for the machine’s movement without establishing a form of on-track safety in accordance with §§ 214.319 through 214.337, but may not engage in any roadway work activity.  For example, if a roadway worker needs to clean the snow from a switch with tools, or adjust a switch, a method of on-track safety compliant with §§ 214.319 through 214.337 would be required prior to conducting such activities.  Notwithstanding the above, FRA notes that existing § 214.313(b) requires that roadway workers shall not foul any track unless necessary for the performance of their duties.  FRA notes this provision extends to roadway workers other than the actual operator of a roadway maintenance machine, as roadway workers other than the machine operator may be assigned to throw switches in order to facilitate a machine’s movement.  The provision would include the lining of derails if the derails are lined via a switch stand in the same manner as a switch is lined.  Such an activity often does not require fouling the track or otherwise require on-track safety.  However, the provision does not apply to derails that are applied to the rails and are not operated via a switch stand, but rather would involve a roadway worker having to bend down over the rail (or directly adjacent to the rail and clearly in the foul) to operate a derail.  Thus, FRA has added the words “or derails operated by switch stand” to this provision.  For other derails that involve requiring a roadway worker to foul track described above, a method of on-track safety must be utilized (e.g., individual train detection or train approach warning may be appropriate). 

Finally, paragraph (c)(4) contains the consensus recommendation of the Working Group for the roadway equipment utilized under this provision.  Paragraph (c)(4) requires that each machine engaged in snow removal or weed spraying operations under § 214.317(c) be equipped with: 1) an operative 360-degree intermittent warning light or beacon; 2) an  illumination device, such as a headlight, capable of illuminating obstructions on the track ahead in the direction of travel for a distance of 300 feet under normal weather and atmospheric conditions; 3) a brake light activated by the application of the machine braking system, and designed to be visible for a distance of 300 feet under normal weather and atmospheric conditions; and, 4) a rearward viewing device, such as a rearview mirror.  If a machine is utilized in snow removal or weed spraying operations conducted during the period between one-half hour after sunset and one-half hour before sunrise, or in dark areas such as tunnels, that machine is also required to be equipped with work lights, unless equivalent lighting is otherwise provided.  Equivalent lighting refers to situations where a rail facility might already be equipped with appropriate lighting or where lighting is installed in a tunnel. 

These requirements apply to snow blowing or weed spraying operations conducted pursuant to the operating rules of a railroad, and are in addition to any applicable existing requirements for such machines found in subpart D of part 214, which governs roadway maintenance machine requirements.  These requirements are intended to help ensure that persons operating such machines during snow removal and weed spraying operations and relying on railroad operating rules and procedures for safety have appropriate lighting and sight distance to perform their duties, while also ensuring that such machines are clearly visible to others in the vicinity of such operations in all lighting conditions. 

In the event of an equipment failure, such as if a machine’s headlight burns out, railroads will not be permitted to operate the equipment pursuant to § 214.317 for seven days after learning of a failed component. Again, § 214.317(c) is designed as an exception to the current requirement to establish on-track safety while certain roadway work activities are performed, in part because under the provisions of this paragraph, FRA believes these activities can be conducted safely.  When equipment fails, such as a headlight, then there is the potential for the safety of the operation to be compromised, especially when conducted at night.  In such situations, railroads will have to default to part 214’s existing on-track safety requirements until the equipment malfunction/failure is repaired.  

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Tunnel niches or clearing bays in existence prior to April 1, 2017 that are designed to permit roadway workers to occupy a place of safety when trains or other on-track equipment pass the niche or clearing bay, but which may be less than four feet from the field side of the nearest rail, may continue to be used as a place of safety provided:

Such niches or clearing bays are visually inspected by the roadway work group prior or lone worker to making the determination that the niche or clearing bay is suitable for use as a place of safety;

There is adequate sight distance to permit the roadway worker or lone worker to occupy the place of safety in the niche or clearing bay at least 15 seconds prior to the arrival of a train or other on-track equipment at the work location in accordance with §§ 214.329 and 337; and

The roadway worker in charge or lone worker shall have the absolute right to designate a place of safety as a location other than that of a tunnel niche or clearing bay described by this paragraph, or to establish working limits.  

28

§ 214.317 On-Track Safety Procedures, Generally

Federal Railroad Administration

Moving America Forward

Paragraph (d) governs whether certain existing tunnel niches/clearing bays should be permitted to be used as a place of safety for roadway workers.  As background, some existing railroad tunnels have clearing bays built into the sidewalls that may, by design be slightly less than four feet from the field side of the near rail.  These bays permit roadway workers to occupy a place of safety while inspecting track in tunnels (for large scale work taking place in tunnels, typically working limits or other forms of on-track safety would be established).  However, the use of clearing bays was not addressed in the original 1996 RWP final rule.  Thus, the use of existing tunnel niches where there is less than four feet from the field side of the near rail as a place of safety would technically violate the existing regulation.  A violation would have occurred because the roadway work would still be “fouling a track” when a train passed, as per the definition of that term at § 214.7   The Working Group discussed this issue at length, but no consensus solution was reached.  The Working Group did, however, decide against modifying the definition of “fouling a track” to accommodate such niches or bays.  Working Group discussions indicated that such niches that were outside the clearance envelope but less than four feet from the field side of the rail existed on a small number of railroads, and were located primarily in the Eastern United States.  

FRA is concerned that the presence of debris, vagrants, rats, spiders, mice, raccoons and other hazards such as claustrophobia could cause roadway workers to panic and jump out of a tunnel niche into the path of an oncoming train. Further, should a tunnel niche capacity be exceeded, one or more roadway workers could be left out in the foul with no ability to reach an alternative place of safety.  FRA acknowledges that tunnel niches have been used in the Northeast for a century and that decades of experience demonstrate that tunnel niches have be used safely. 

After evaluating this issue further, FRA is adopting a new paragraph § 214.317(d) in this final rule that permits the use of existing tunnel niches or clearing bays that might be less than four feet from the nearest rail, subject to certain conditions.  While FRA agrees that tunnel niches and clearing bays can be (and have been) safely used as a place of safety for some time, the use of certain niches and clearing bays was technically outlawed in the original RWP regulation in an apparent oversight by the Advisory Committee.  The conditions that FRA has added here will ensure the continued safe use of certain existing tunnel niches for roadway workers, and will also provide alternatives to a roadway worker in charge or lone worker should another designated place of safety or form of on-track safety be more appropriate. 

First, this paragraph only applies to existing niches as of the effective date of this final rule, and not to any niches that are constructed in the future that might not permit a place of safety at least four feet from the nearest rail.  Next, before such existing niches that might, by design, be less than four feet from the near running rail may be used as a place of safety, (d)(1) of this paragraph requires that the niche(s) to be used first be inspected so that the roadway worker in charge or lone worker can determine whether the niche(s) are suitable for use as a place of safety.  Also, under (b)(2) of this paragraph, before making the decision to utilize a niche as a place of safety, the roadway worker in charge or lone worker must make the determination that there is adequate sight distance to permit the roadway worker to occupy the place of safety in the niche or clearing bay at least 15 seconds prior to the arrival of a train or other on-track equipment at the work location, as is required by §§ 214.329 and 337.  Finally, similar to the provision for lone workers to establish alternate methods of on-track safety in existing § 214.317, the roadway worker in charge or lone worker shall have the absolute right to designate a place of safety as a location other than that of a tunnel niche described by this paragraph, or to establish working limits, if appropriate.   

Compliance with this new paragraph will ensure the continued safe use of existing niches, as the roadway worker in charge or lone worker will be required to determine that the niche is clear of obstructions and safe for use, and that the proper sight distance to utilize a niche or clearing bay and occupy a place of safety is present.  Finally, by providing the absolute right to utilize another method of establishing on-track safety, or another appropriate designated place of safety beside a tunnel niche which might be less than four feet from the near running rail.  FRA believes it has alleviated the concern of roadway workers who might object to the use of such a tunnel niche for potential safety or medical reasons.  FRA notes that for lone workers performing inspections in tunnels, that the absolute right to use an alternative form of  on-track safety other than individual train detection (to occupy a niche at least 15 seconds before the passage of a train) has existed under § 214.337 since 1997, and that lone workers are likely the roadway workers who would often utilize such niches.  

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In lieu of the requirements of this subpart, workers (as defined by § 218.5 of this chapter) within the limits of locomotive servicing and car shop repair track areas (as both defined by § 218.5 of this chapter) may utilize procedures established by a railroad in accordance with subpart B of part 218 of this chapter (Blue Signal Protection) to perform duties incidental to inspecting, testing, servicing, or repairing rolling equipment when those incidental duties involve fouling a track that is protected by Blue Signal Protection.  A railroad utilizing Blue Signal Protection in lieu of the requirements of this subpart must have rules in effect governing the applicability of those protections to the incidental duties being performed.

Paragraph (a) of this section applies to employees of a contractor to a railroad if such incidental duties are performed under the supervision of a railroad employee qualified (as defined by § 217.4 of this chapter) on the railroad’s rules and procedures implementing the Blue Signal Protection requirements.

29

§ 214.318 Locomotive Servicing and Car Shop Repair Track Areas

Federal Railroad Administration

Moving America Forward

FRA in the final rule has added allowances for blue signal protections to be used for certain work performed within the limits of locomotive servicing and car shop repair track areas in lieu of the roadway worker protections prescribed under part 214.  For the reasons explained below, in this final rule FRA is amending part 214 by adding a new § 214.318 that addresses incidental work performed in locomotive servicing and car shop repair track areas.  This amendment will allow “workers”, as defined by § 218.5, to utilize blue signal protections in place of part 214’s RWP on-track safety procedures.     

Under the existing RWP regulation “roadway workers” performing work that involves the potential to foul a track within a locomotive servicing or car shop repair track area (or performing work on signals or structures within those areas that involves fouling track) are required to utilize on-track safety procedures via the requirements of part 214.  Any “workers”, as defined by § 218.5, who perform work that involves the inspection, testing, repairing, or servicing of rolling equipment within such facilities are required to do so via the blue signal protection requirements of subpart B of part 218.  Since the promulgation of the RWP regulation, questions have arisen over what protections are appropriate within such shop facilities for certain types of work activities (e.g., performing work on the overhead doors of a locomotive maintenance building when such work involves fouling a track) performed by mechanical department employees who are typically considered to be “workers”, because the type of work performed might technically meet the “roadway worker” definition in part 214. 

FRA issued Technical Bulletin G-08-03 to try to help clarify the issue, explaining that FRA would not take enforcement action with regard to any work being performed that appeared to be more akin to roadway worker duties, but that was of an “incidental” nature to the larger job of mechanical personnel performing work on rolling equipment, e.g., sweeping a shop floor or changing a light bulb in an inspection pit.  

Railroads have argued that FRA should exempt certain work within shop areas from the on-track safety requirements of part 214, as the employees within the limits of the shop areas may perform such work safely while utilizing the blue signal protections that they have been trained on the requirements of, and are familiar with.  Railroads have also argued that training shop personnel on two different protection regimes is costly, and is also confusing for employees that actually have to apply those two different types of protection, and, thus, detrimental to safety.  

FRA in the NPRM solicited comments as to how the issue of Mechanical Department personnel performing work foul of the track in car and locomotive shop facilities not consisting of  on, under or between rolling stock should be protected as well as the issue of contractor employees under Mechanical Department supervision should also be addressed, as contractor employees are subject to the requirements of part 214 but are not considered “workers” via existing part 218’s blue signal protection requirements.   

Comments ranged from:

There is no passenger industry accident history that would support concern for the safety of workers performing duties under either RWP or blue signal protections in shop areas, and that protection provided under existing blue signal or RWP regulations is adequate for the tasks performed in shop areas.

There has been controversy surrounding how to protect employees fouling tracks in shop and locomotive servicing areas, but that blue signal protection has been utilized for decades and has proven to be an effective method of providing for the safety of employees in such areas.  

If blue signal protection adequately protects employees when working on rolling stock, it also will adequately protect employees when they are performing other activities in shop areas.  

The guidance in FRA’s technical bulletin discussed above and in the NPRM would lead to confusion, and suggested that mechanical employees be permitted to utilize blue signal protection when fouling track around shop areas.  

From a safety perspective, employees should be permitted to utilize the method of establishing protection that they are most familiar with.  For mechanical employees, that is blue signal protection, and for roadway workers that is roadway worker protections. 

Contractors should be treated as railroad employees performing the same work would be treated.  

Railroad industry would be better served if mechanical department employees could perform certain facility-maintenance work within the limits of shop areas using blue signal protection rather than the on-track protection requirements of part 214, stating that existing blue signal protection requirements provide a proven level of protection.  

Any inconsistency in forms of protection utilized increases the potential for confusion and reduces safety. 

Questioned if the original RWP rulemaking efforts gave adequate consideration to the application of the on-track safety requirements in shop areas.  

The original Advisory Committee that promulgated the RWP regulation was concerned about maintenance of way work performed in the traditional context along the railroad right of way, and not within shop areas. 	

The primary consideration involved in this topic should be whether employees are adequately protected while performing their assigned duties, and that it would be overly prescriptive to require employees to be familiar with different types of protection. Individual railroad should determine the appropriate type of protection to be used based on the specific task being performed.  

In this final rule, FRA is amending part 214 to permit “workers” as defined by § 218.5 to utilize blue signal protections in locomotive servicing and car shop repair track areas to use the protections described in subpart B of part 218 in lieu of the requirements of part 214, subject to certain limitations discussed below.  In general, FRA agrees with the railroad commenters and believes this is the logical application of the two regulations in locomotive servicing and car shop repair track areas.

“Workers” have utilized blue signal protections in shop areas as the method of providing protection for decades.  In FRA’s experience, such protections have been used quite successfully over the history of the blue signal regulation to prevent accidents, injuries, and deaths.  In general, when blue signal protections are applied on a track, subpart B of part 218 does not permit rolling equipment to be coupled to, prohibits rolling equipment from passing a displayed blue signal, and prohibits equipment on a track that is under blue signal from being moved (except under the very specific conditions described in § 218.29 when workers on an affected track are notified of pending movements when equipment is repositioned on a track, or when blue signals are removed from a controlling locomotive and from entrance or departure switch when equipment is to be moved into or out of a shop area).  These requirements ensure worker safety when performing work on rolling equipment by preventing equipment on a protected track from moving or from being coupled to.  The conditions in shop areas are typically different than situations the RWP regulation often addresses, which is more traditionally the protection of maintenance of way employees along the railroad right of way where trains and locomotives often travel at higher speeds, versus the areas where rolling equipment is repaired by mechanical employees.  FRA does not believe safety is improved by mandating that a railroad employee be trained on, and comply with, the requirements of the blue signal regulation in order to safely tighten a bolt on a locomotive, and to also be trained on and apply the differing requirements of the RWP regulation while standing in the exact same location to perform the incidental work of tightening a bolt on an overhead door.  Such a literal approach to the regulations introduces the potential for confusion and the misapplication of the differing requirements, and is also not cost effective or efficient.  

New § 214.318(a) provides that workers (as defined by § 218.5) within the limits of locomotive servicing and car shop repair track areas (as also defined by § 218.5) may utilize the procedures established by a railroad in accordance with FRA’s blue signal protection regulation at subpart B of part 218 to perform duties incidental to their work on, under, or between rolling equipment while fouling a track that is protected by blue signal(s).   If this new section is to be utilized in lieu of part 214’s requirements, paragraph (a) also requires that a railroad’s rules must address this use of blue signal protections and convey any additional procedures that a railroad adopts for such uses.  By “incidental” work, FRA means duties with the shop limits such as working on a shop door, sweeping excess ballast off the a shop floor or away from a work area within the shop, cleaning up fluid spills in the gage of the track in a work area, or performing electrical work in a locomotive shop  to an appliance such as an exhaust hood above a track.  FRA wishes to make clear that in order for this new section to apply, such work has to be performed on a track on which blue signal protections are established. 

This new section does not require that employees meeting the definition of a “worker” use blue signal protections in lieu of the RWP on-track safety procedures.  Instead, this new section only provides the option for a railroad to decide what form of protection is appropriate with regard to “workers” in shop areas.  Roadway workers will still be required to comply with the requirements of part 214 when fouling track within a shop area.  For example, if a signal department employee performs work on an electronic system controlling the blue signal display within a shop area that involves he or she fouling a track, that employee will continue to be expected to utilize the on-track safety requirements of part 214.  Part 214 applies in that example because the signal department employee is clearly not a “worker” who inspects, tests, services, or repairs rolling equipment under that term’s definition in part 218.  As another example, bridge and building department employees who are required to foul track while building a structure within a shop area would also still be required to establish on-track safety in accordance with part 214, as per the definition of “roadway worker” in § 214.7, they require on-track safety.  In that example they are also clearly not “workers” under part 218 as they do not inspect, test, service, or repair rolling equipment.

Paragraph (b) of this section addresses contractor employees.  Subpart B of part 218 does not apply to employees of a contractor to a railroad (FRA notes from a safety perspective, though, that under railroad rules contractors typically must follow a railroad’s blue signal procedures when performing work within a shop area).   The on-track safety requirements of part 214 apply to railroad employees and to employees of contractors to railroads alike.  FRA believes that contractors should be treated the same as railroad employees performing the same work would be treated..  However, because under part 218 contractor employees are not “workers”, FRA cannot enforce that subpart’s requirements as to work performed by contractors.  So, in paragraph (b), FRA has extended the exemption for “incidental” duties in shop areas for employees of a contractor to a railroad, but only under the condition that such work be supervised by a railroad employee who is qualified on the railroad’s rules and procedures implementing the requirements of subpart B of part 218.   Thus, a contractor within a shop area performing duties incidental to those of inspecting, testing, servicing, and repairing rolling equipment that under the current regulations might otherwise be subject to the on-track safety requirements of subpart C of part 214 may utilize this exception.  If the exception is to be utilized, a railroad employee qualified (as defined by § 217.9) on the railroad’s blue signal rules must supervise the work to ensure the appropriate blue signal protections are in place such that the work is performed safely.  

For example, an employee of a contractor to a railroad who is servicing an exhaust hood above idling locomotives in a shop building may do so under the supervision of a blue signal-qualified employee.  Without this amendment to the regulatory text, such a contractor employee may be subject to the requirements of subpart C of part 214 when performing such maintenance or repair work to a roadway facility because the employee would be a “roadway worker”, as defined at existing § 214.7.  Another example involves an employee of a contractor to a railroad using a vacuum to suck water out of a switch in a locomotive shop so that shop personnel can safely move locomotives.  If such contractor employee is supervised by a blue signal-qualified railroad employee while performing this duty, then compliance with subpart C of part 214 is not required.  If the contractor employee is not supervised by a blue signal-qualified employee while performing this duty, then the contractor  must comply with the on-track safety requirement of part 214 (because the work performed makes the contractor a “roadway worker” per existing § 214.7). 

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§ 214.318 Locomotive Servicing and Car Shop Repair Track Areas

Any work performed within the limits of  a locomotive servicing and car shop repair track area with the potential of fouling a track which requires a person qualified under § 213.7 of this chapter to be present to inspect or supervise such work must be performed in accordance with the requirements of this subpart. 

Note the following definitions:

Car shop repair track area means one or more tracks within an area in which the testing, servicing, repair, inspection, or rebuilding of railroad rolling equipment is under the exclusive control of mechanical department personnel. (§ 218.5 Definitions)

Locomotive servicing track area means one or more tracks, within an area in which the testing, servicing, repair, inspection, or rebuilding of locomotives is under the exclusive control of mechanical department personnel. (§ 218.5 Definitions)

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Federal Railroad Administration

Moving America Forward

Paragraph (c) of this new section expressly establishes that when any work performed within a shop area requires the presence of a person qualified in accordance with § 213.7 of FRA’s Track Safety Standards, that the on-track safety requirements of part 214 will apply.  FRA has added this requirement to make clear that traditional inspection, construction, maintenance or repair of railroad track that implicates whether rolling equipment can move safely over any portion of that track will continue to be governed by the on-track safety requirements of part 214, regardless of craft of a particular employee (or whether the employee(s) are employees of a contractor to a railroad).  FRA wishes to avoid any situation whereby “workers” perform maintenance  of way duties that they are not qualified to perform that could affect the safe movement of rolling equipment over track structures.

  FRA anticipates receiving questions regarding whether an employee is a considered a “roadway worker” or a “worker” for purposes of this new section’s application.  For enforcement purposes, FRA will look to what a particular employee’s primary duties involve in making a determination.  As additional examples to those discussed above, a mechanical department employee who performs electrical work on locomotives who has to foul a track on which blue signal is applied in order to shovel snow from the gauge to access a portion of the locomotive is performing incidental duties and would not technically be considered a “roadway worker” just by virtue of clearing the track of an obstruction.  The employee in this example would be able to utilize the railroad’s blue signal procedures in lieu of any application of part 214.  As another example, a railroad employee who works in the engineering department and who is assigned to repair a switch in a locomotive shop area is a “roadway worker” who requires on-track safety.  In that example the employee is not one whose work involves testing, inspecting, servicing, or repairing rolling equipment per the definition of “worker” in part 218.  Rather, in this example his or her primary duties involve the maintenance and repair of railroad track.  Likewise, a railroad employee or an employee of a contractor to a railroad who is replacing concrete in front of the diesel house doors to ensure there is an adequate flangeway for the wheels on rolling stock would require compliance with the on-track safety provisions of part 214.  Such work is not considered “incidental”, and likely requires the presence of a person qualified under § 213.7.   FRA understands that not all examples will be so obvious in nature, particularly on smaller railroads where one employee may fill a variety of roles.  In such instances (provided, as a preliminary matter, that the work involved is indeed performed within a locomotive servicing or car shop repair track area), FRA would look to the primary purpose of the work being performed, and whether such work was related to that performed on, under, or between rolling equipment.  

As a practical matter, if an employee of a smaller railroad performs varying jobs functions that involve both maintenance of way work, and also performs what is traditionally thought of as mechanical work on rolling equipment, the employee is already required to be trained on and utilize the on-track safety requirements of part 214 when performing “roadway worker” duties, and likewise, would have to be comply with the blue signal regulation requirements of part 218 when working on, under, or between rolling equipment. 

In this final rule, FRA also contemplated adopting rule text that would have required that when a roadway work group performed work within the limits of locomotive servicing or car shop repair track areas that the roadway worker in charge would have been required to notify the person in charge of the workers (see 2218.29(a)) prior to beginning work.  This was in response to concerns FRA is aware of where derails or other protections were used to establish working limits by a roadway work group in shop areas unbeknownst to the person in charge of the workers, and potential safety issues occurred as a result.  FRA did not adopt a requirement addressing this issue in this final rule because such a requirement could have involved small additional costs in the time spent by the roadway worker in charge making notification to shop personnel before beginning work, but without corresponding  benefits that FRA is able to quantify.  However, FRA discusses this issue in order to encourage railroads to adopt such a procedure, if appropriate.  Railroads are free to adopt rules that establish additional safety-related requirements of their own volition.  If FRA amends subpart B of part 218 in the future, this particular issue may be addressed.       

Finally, the new rule is not an expansion of the existing regulations, but, rather, is just a recitation of the existing state of interplay between the two regulations.  The requirements of part 214 should not be applied to certain activities in shop areas that do not literally involve work on, under, or between rolling equipment.  However, in the absence of this new amendment, the existing regulations do not expressly make such allowances.  

FRA believes that to allow “workers” to utilize blue signal protections in shop areas for incidental duties that they are assigned that may involve other actions aside from work that is literally performed on, under, or between, rolling equipment does not decrease safety.  Rather, allowing workers to utilize the procedures that they are familiar with and have been trained on provides clear direction and consistency.  FRA believes this amendment will actually eliminate confusion and increase safety. 	

Upon the effective date of this final rule, FRA Technical Bulletins G-05-21 and G- 08-03 are supplanted.  Those technical bulletins addressed previously provided guidance on this topic, but are no longer valid in light of the adoption of new § 214.318 here. 

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Working limits established on controlled track shall conform to the provisions of §214.321 Exclusive track occupancy, or § 214.323 Foul time, or § 214.325 Train coordination. Working limits established on non-controlled track shall conform to the provision of §214.327 Inaccessible track. 

Working limits established under any procedure shall, in addition, conform to the following provisions:

(a) Only a roadway worker in charge who is qualified in accordance with § 214.353 of this part shall establish or have control over working limits for the purpose of establishing on-track safety.  

(b) Only one roadway worker in charge who is qualified in accordance with § 214.353 of this part shall have control over working limits on any one segment of track. 

(c) All affected roadway workers shall be notified before working limits are released for the operation of trains. Working limits shall not be released until all affected roadway workers have either left the track or have been afforded on-track safety through train approach warning in accordance with §214.329 of this subpart.

31

§ 214.319 Working Limits, Generally

Federal Railroad Administration

Moving America Forward

Section 214.319 sets forth the requirements for establishing working limits in accordance with part 214. FRA has made several minor changes to this section.  The existing first sentence in the introductory paragraph of this section states, in part, that “[w]orking limits established on controlled track shall conform to the provisions of” §§ 214.321 Exclusive track occupancy, or 214.323, Foul time, or 214.325, Train coordination.”  Each of these sections explains the requirements for establishing working limits through the various methods recognized by part 214.  

FRA is replacing the words “roadway worker” in existing paragraphs (a) and (b) with the words “roadway worker in charge”.  This change is to provide uniformity of reference throughout the RWP regulation to the roadway worker who establishes and controls working limits.  This is also to reflect that under existing paragraph (a) of this section only a “roadway worker who is qualified in accordance with § 214.353 of this part shall establish or have control over working limits for the purpose of establishing on-track safety.”  As previously discussed, FRA is amending subpart C to refer to a roadway worker qualified in accordance with § 214.353 as a “roadway worker in charge.”  Note:  FRA has incorporated “lone workers” into the definition of “roadway worker in charge” at § 214.7.  

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Working limits established on controlled track shall conform to the provisions of §214.321 Exclusive track occupancy, or § 214.323 Foul time, or § 214.325 Train coordination. Working limits established on non-controlled track shall conform to the provision of §214.327 Inaccessible track. 

Each Class I or Class II railroad or each railroad providing regularly scheduled intercity or commuter rail passenger transportation that utilizes controlled track working limits as a form of on-track safety (under §§ 214.321 – 214.323) in signalized territory shall: 

By July 1, 2017, evaluate its on-track safety program and identify an appropriate method(s) of providing redundant signal protections for roadway work groups who depend on a train dispatcher or control operator to provide signal protection in establishing controlled track working limits.  For purposes of this section, redundant signal protections means risk mitigation measures or safety redundancies adopted to ensure the proper establishment and maintenance of signal protections for controlled track working limits until such working limits are released by the roadway worker in charge.  Appropriate redundant protections could include the use of various risk mitigation measures (or a combination of risk mitigation measures) such as technology, training, supervision, or operating-based procedures; or could include use of redundant signal protection, such as shunting, designed to prevent signal system-related incursions into established controlled track working limits; and  

32

§ 214.319 Working Limits, Generally

Federal Railroad Administration

Moving America Forward

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Working limits established on controlled track shall conform to the provisions of §214.321 Exclusive track occupancy, or § 214.323 Foul time, or § 214.325 Train coordination. Working limits established on non-controlled track shall conform to the provision of §214.327 Inaccessible track. 

By January 1, 2018, specifically identify, implement, and comply with the method(s) of providing redundant protections in its on-track safety program.  

Upon a railroad’s request, FRA will consider an exemption from the requirements of paragraph (b) of this section for each segment of track(s) for which operations are governed by a positive train control system under part 236, subpart I of this chapter.  A request for approval to exempt a segment of track must be submitted in writing to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer.  The FRA Associate Administrator for Railroad Safety and Chief Safety Officer will review a railroad’s submission and will notify a railroad of its approval or disapproval in writing within 90 days of FRA’s receipt of a railroad’s written request, and shall specify the basis for any disapproval decision.

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§ 214.319 Working Limits, Generally

Federal Railroad Administration

Moving America Forward

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Working limits must be established for roadway maintenance machine movements on non-controlled track equipped with automatic block signal systems over which trains are permitted to exceed restricted speed (for purposes of this section, on-track movements prepared to stop within on-half the range of vision but not exceeding 25 mph).  This section applies, unless the railroad’s operating rules protect the movements of roadway maintenance machines in a manner equivalent to that provided for by limiting all train and locomotive movements to restricted speed, and such equivalent level of protection is first approved in writing by FRA’s Associate Administrator for Railroad Safety and Chief Safety Officer. 

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§ 214.320 Roadway Maintenance Machine Movements Over Signalized Non-controlled Track.

Federal Railroad Administration

Moving America Forward

FRA has adopted rule text in this final rule to address a potential safety issue that arises when roadway maintenance machine movements are made on non-controlled track.  As background, train or on-track equipment movements on non-controlled track may be made without authorization from a train dispatcher or control operator, per the definition of the term “non-controlled track” at § 214.7.  Thus, such movements have traditionally been made under railroad operating rules requiring that they be made at speeds not exceeding restricted speed.  Restricted speed rules require that trains or other on-track equipment be able to stop within one-half the operator’s range of vision.  The requirement to stop within one-half the range of vision prevents collisions between any equipment that may be operating on the same non-controlled track.  As such, under existing § 214.301(c), operations at restricted speed allow for roadway maintenance machines to safely travel over non-controlled track without having to establish working limits.  However, some stretches of non-controlled track have been equipped with automatic block signal (ABS) systems.  ABS systems are designed to prevent collisions while allowing for trains to operate at speeds greater than restricted speed.  This scenario is problematic for purposes of the movement of roadway maintenance machines on non-controlled track under existing paragraph (c) because roadway maintenance machines do not all shunt track circuits.  Absent the establishment of inaccessible track working limits or other protections, nothing in existing part 214 prevents a train operating on non-controlled ABS-signaled track at a speed greater than restricted speed from colliding with roadway maintenance machines traveling on the same track that do not shunt the signal system (no authority is needed to occupy such track and trains are not required to stop within one-half their operator’s range of vision).

One Class I railroad has a significant stretch of ABS non-controlled track (within yard limits) where such a situation apparently existed, and an incident occurred where a hi-rail vehicle was struck by a train.   Thus,  to address the safety concerns with regard to this situation, FRA under new section § 214.320.  requires roadway maintenance machine movements on non-controlled track may be only be made (e.g., without establishing working limits) if train and locomotive speeds on such track are required to be made at restricted speed. 

FRA believes that, in general most non-controlled track is already limited to restricted speed operations (with one exception being block register territories, which are addressed further in proposed § 214.327(a)(7) below).  A main example are the tracks that make up railroad yards. 

In order to provide additional flexibility on this point, however, FRA will also permit railroads to utilize other operating rules that provide a level of protection equivalent to that provided by the provisions of restricted speed rules on non-controlled track, provided such rules are first approved by FRA in writing if they are intended to be used to satisfy this requirement.  This section only refers to train and locomotive speeds on non-controlled track, and not to the speeds that roadway maintenance machines are authorized to travel over non-controlled track.  Existing § 214.341 already requires each railroad’s on-track safety program address the spacing between machines and the maximum working and travel speeds for machines depending on weather, visibility, and stopping capabilities.  Roadway maintenance machines typically have stopping capabilities far in excess of that of trains.  The intent of this rule is to address situations where trains and locomotives are not required to stop within one-half the range of vision on non-controlled track, and could collide with roadway maintenance machines (that are in travel mode under railroad operating rules) that do not shunt signal systems.

For purposes of this new section, FRA has decided that restricted speed will mean movements prepared to stop within one-half the range of vision but not exceeding 25 mph.  The 25-mph maximum is consistent with the meaning of restricted speed for purposes of new § 214.317(c) (discussed above) in which FRA adopted an RSAC-consensus provision allowing on-track roadway maintenance machines to conduct snow removal and weed spraying operations while traveling over non-controlled track without establishing working limits.  This new section will require that for non-controlled track equipped with an ABS signal system, and over which trains are permitted to operate at speeds over restricted speed (above 25 mph), that when roadway maintenance machines travel over such territories they must establish working limits in accordance with § 214.327.  FRA has adopted this provision in light of the explanation above.  If no control operator or dispatcher is controlling such non-controlled track, and roadway maintenance machines that do not shunt travel over such track, there is no protection from the risk of a collision with a train where the provision of restricted speed that requires stopping within one-half the range of vision is not in effect.  In order to prevent this situation from occurring, FRA has chosen to adopt this provision in this final rule. 

Where railroads rely on permission from a dispatcher or control operator for a train to move into or within the non-controlled track, then by definition, FRA believes this would make such track “controlled track” via the definition of such at § 214.7.  If such track is “controlled track”, then this provision in new paragraph (d) would not even apply.  FRA also notes that this procedure appears to be very similar to the procedures in new § 214.327(a)(8) adopted in this final rule for the establishment of working limits on non-controlled track. So, a railroad could merely choose to comply with § 214.327(a)(8) to alleviate any potential impacts of this new § 214.320 if the railroad does not wish to develop and submit alternate procedures as discussed immediately below.  

In this new section, FRA has provided flexibility whereby a railroad can adopt alternate procedures in its applicable rules, and utilize those in lieu of establishing working limits, so long as the FRA Associate Administrator for Safety/Chief Safety Officer approves such procedures in writing (in advance of such procedures taking effect).  With the new methods of establishing working limits on non-controlled track discussed below in § 214.327, and the flexibility provided for in alternate approaches in this new section, and the small number of situations in which § 214.320 will apply, FRA believes that train movements at track speed over signalized non-controlled track can be accommodated, while at the same time providing for the safe movement of non-shunting roadway maintenance machines traveling over the same non-controlled track.            

Nothing in the final rule requires trains to travel at restricted speed at any location other than periodic times when roadway maintenance machines travel over the track at these locations; otherwise the roadway work groups must establish working limits in accordance with § 214.327, the same procedures railroads already follow when they are actually conducting roadway work at those locations. 

FRA understands that the one railroad has already amended its procedures currently to designate some of the track in question as “controlled track” and was utilizing track bulletins for other portions when roadway maintenance machines or track inspectors traveled over the signalized non-controlled track in question.  Another Class I railroad has such a situation involving non-controlled signaled track, but while moving roadway maintenance machines over such track, FRA understands that the railroad creates working limits via a dispatcher controlling the signals at either end of the non-controlled limits to make such limits inaccessible.  

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Working limits established on controlled track through the use of exclusive track occupancy procedures shall comply with the following requirements:

The track within working limits shall be placed under the control of one roadway worker in charge by either:

Authority issued to the roadway worker in charge by the train dispatcher or control operator who controls train movements on that track,

Flagmen stationed at each entrance to the track within working limits and instructed by the roadway worker in charge to permit the movement of trains and equipment into the working limits only as permitted by the roadway worker in charge, or

The roadway worker in charge causing fixed signals at each entrance to the working limits to display an aspect indicating “Stop.”

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§ 214.321 Exclusive Track Occupancy.

Federal Railroad Administration

Moving America Forward

Section 214.321 generally sets forth the requirements for establishing working limits on controlled track through the use of exclusive track occupancy procedures.  In the final rule, FRA added several amendments to this section, including both Working Group consensus items and non-consensus items.  FRA proposed to replace the words “roadway worker” in existing paragraphs (a) and (b) with “roadway worker in charge.”  As discussed previously, this change is to consistently refer to the “roadway worker in charge” as appropriate throughout the RWP regulation, in order to clarify the existing variety of generic references to that position, and also to expressly state that an authority for exclusive track occupancy must be communicated to the “roadway worker in charge,” as opposed to the existing reference to a “roadway worker” (per existing § 214.319, only a roadway worker in charge can establish working limits).

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An authority for exclusive track occupancy given to the roadway worker in charge of the working limits shall be transmitted on a written or printed document directly, by relay through a designated employee, in a data transmission, or by oral communication, to the roadway worker in charge by the train dispatcher or control operator in charge of the track.

Where authority for exclusive track occupancy is transmitted orally, the authority shall be written as received by the roadway worker in charge and repeated to the issuing employee for verification.

The roadway worker in charge of the working limits shall maintain possession of the written or printed authority for exclusive track occupancy while the authority for the working limits is in effect. A data transmission of an authority displayed on an electronic screen may be used as a substitute for a written or printed document required under this paragraph.  Electronic displays of authority shall comply with the requirements of § 214.322.

The train dispatcher or control operator in charge of the track shall make a written or electronic record of all authorities issued to establish exclusive track occupancy.

An authority shall specify a unique roadway work group number, an employee name, or a unique identifier.   A railroad shall adopt procedures that require precise communication between trains and other on-track equipment and the roadway worker in charge or lone worker controlling the working limits in accordance with § 214.319.  The procedures may permit communications to be made directly between a train or other on-track equipment and a roadway worker in charge or lone worker, or through a train dispatcher or control operator.

36

§ 214.321 Exclusive Track Occupancy.

Federal Railroad Administration

Moving America Forward

Next, existing paragraph (b) of this section states that a “data transmission” may be used to transmit an exclusive track occupancy authority to a roadway worker (i.e., a roadway worker in charge).  However, existing paragraph (b)(2) states only that the roadway worker in charge must maintain possession of a "written or printed authority” while the authority for working limits is in effect, and does not currently account for authorities conveyed via data transmission that may be displayed on the screen of an electronic device.  In the final rule, FRA amended paragraph (b)(2) to clarify that an authority displayed on an electronic screen may also be used in place of the “written or printed” authority required by existing § 214.321(b)(2). FRA notes that electronic authorities are also required to comply with the requirements of new § 214.322, which is discussed later in these slides.  

The Working Group recommended consensus language that would require that an exclusive track occupancy authority specify a unique roadway work group number, an employee name, or other unique identifier.  FRA adopted this Working Group recommendation, slightly amended, as a new paragraph (b)(4) to § 214.321.  This requirement codifies what is already common practice in the railroad industry; a practice that helps ensure the ability of trains, dispatchers, and other employees to differentiate between roadway workers in charge/roadway work groups who may be performing work at various locations along the right-of-way.  This paragraph also requires that a railroad’s procedures establish guidelines for communication between trains or other on-track equipment and the roadway worker in charge (or lone worker), in accordance with existing § 214.319(c).  This requirement refers to effective procedures for trains or other on-track equipment to contact the roadway worker in charge to receive permission through working limits when appropriate.  A railroad’s procedures under this section will govern the necessary communications between trains and roadway workers in charge when exclusive track occupancy working limits are in effect.  

FRA wishes to clarify the portion of the proposed rule text for paragraph (b)(4) which states that “[a] railroad shall adopt procedures that require precise communication between trains and other on-track equipment and the roadway worker in charge or lone worker controlling the working limits in accordance with § 214.319.”  A train is not required to communicate with every piece of on-track equipment in a roadway work group, in addition to communicating with the roadway worker in charge, when passing through working limits.  This requirement refers to a train or other on-track equipment being required to communicate only with the roadway worker in charge (or lone worker) of the working limits through which the train or on-track equipment wishes to enter or travel through.  

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The extent of working limits established through exclusive track occupancy shall be defined by one of the following physical features clearly identifiable to a locomotive engineer or other person operating a train or railroad equipment:

A flagman with instructions and capability to hold all trains and equipment clear of the working limits;

A fixed signal that displays an aspect indicating “Stop”;

A station shown in the time-table, and identified by name with a sign, beyond which train movement is prohibited by train movement authority or the provisions of a direct train control system.

A clearly identifiable milepost sign beyond which train movement is prohibited by train movement authority or the provisions of a direct train control system; or

A clearly identifiable physical location prescribed by the operating rules of the railroad that trains may not pass without proper authority.

37

§ 214.321 Exclusive Track Occupancy.

Federal Railroad Administration

Moving America Forward

Paragraph (c) of § 214.321, which lists the physical features that may be used to define the extent of working limits established through Exclusive Track Occupancy remains unchanged.

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Movements of trains and roadway maintenance machines within working limits established through exclusive track occupancy shall be made only under the direction of the roadway worker in charge having control of the working limits.  Such movements shall be at restricted speed unless a higher authorized speed has been specifically authorized by the roadway worker in charge of the working limits.

Working limits established by exclusive track occupancy authority may occur behind designated trains moving through the same limits in accordance with the following provisions: 

The authority establishing working limits will only be considered to be in effect after it is confirmed by the roadway worker in charge or lone worker that the affected train(s) have passed the point to be occupied or fouled by:

Visually identifying the affected trains(s); or

Direct radio contact with a crew member of the affected train(s); or

Receiving information about the affected train from the train dispatcher or control operator.

38

§ 214.321 Exclusive Track Occupancy.

Federal Railroad Administration

Moving America Forward

Next, FRA amended existing paragraph (d) to refer to the “roadway worker in charge” rather than to the “roadway worker” having control over the working limits.  As discussed elsewhere in this final rule, FRA is making similar changes in multiple locations in this final rule in order to replace the varying existing language that generically refers to the “roadway worker in charge” throughout the regulation text.  In 2005, FRA issued Technical Bulletin G-05-22 that addressed paragraph (d).  That technical bulletin recognized that there may be times, such as during an emergency, when a roadway worker in charge cannot be contacted by a train or other on-track equipment wishing to make a movement.  The bulletin explained that “in extraordinary circumstances trains must be authorized to move despite lack of permission from the RWIC”.  The present regulation does not address this irregular situation and thus, FRA’s enforcement action under these circumstances will be determined on a case-by-case basis.”  In this final rule, FRA intends new paragraph (b)(4) to work in conjunction with the requirements of existing paragraph (d) in this regard.  Paragraph (b)(4) requires that railroads adopt procedures governing communications between trains and roadway workers in charge.  FRA expects that railroads will adopt procedures that address what actions should be taken in the event of an emergency and where a roadway worker in charge cannot be contacted by a train crew or the operator of other on-track equipment.  Upon the effective date of this final rule, Technical Bulletin G-05-22 is supplanted.  

In addition,, the existing text of the beginning of the second sentence of paragraph (d) currently reads that “[s]uch movements shall be restricted speed . . . .”  FRA amended that text to instead read that “[s]such movements shall be made at restricted speed . . . .” (emphasis added).  This minor amendment is made for purposes of reading clarity. 

FRA added a new paragraph (e) to this section.  This paragraph establishes minimum requirements when an exclusive track occupancy authority is given to a roadway worker in charge (or lone worker) ahead of the time working limits are to be occupied, or when train(s) may be occupying the same limits.  These authorities are sometimes referred to as “occupancy behind”, “conditional”, or “do not foul the limits ahead of” authorities.  Occupancy behind procedures enable a train dispatcher or control operator to issue an authority which would permit a roadway work group to occupy a track, provided such occupancy only occurred after the passage of certain trains or other on-track equipment.  When occupancy behind authorities are issued, trains may still be ahead of the point to be occupied by the roadway work group, or in some cases may be past the point to be occupied but still within the working limits.  Such occupancy behind authorities have long been in use in the railroad industry.  

Due to the volume of train operations in certain areas, and the corresponding time demands on train dispatchers, railroads have expressed to FRA that the use of such authorities is crucial to their ability to be able to efficiently conduct train operations.  The Working Group discussed the problems of miscommunication with the use of “occupancy behind” authorities, but did not achieve consensus on recommended regulatory text.  However, FRA believes it necessary to adopt minimum safety requirements regarding the use of such authorities by roadway workers in charge to establish exclusive track occupancy working limits.  FRA believes this amendment codifies best practices and will help ensure safety.  

The use of conditional authorities is widespread and voluminous in the railroad industry, without any specific regulatory text addressing the practice.  In adopting paragraph (e), FRA is, for the first time, establishing Federal safety requirements specifically addressing this practice and making such procedures uniform throughout the industry.  Further, by establishing minimum safety standards in this regard, FRA also believes it furthers track-related safety, as roadway workers and dispatchers will continue to be able to maximize the time available for roadway workers to perform quality track inspections as required by 49 CFR part 213.  If FRA were to limit the use of occupancy behind authorities, FRA would then be decreasing the available amount of time for track inspections to take place in busy rail corridors (e.g., an authority would not be able to be issued until after trains had passed when otherwise the authority could have been issue in advance, or potentially not at all, in high-volume corridors).   

FRA notes that 49 CFR 220.61 contains requirements for the issuance of “mandatory directives” via radio transmission for both trains and on-track equipment. Exclusive track occupancy authority to establish working limits granted by a train dispatcher or control operator to a roadway worker in charge are in some instances also considered “mandatory directives” under that section.  The existing requirements in § 214.321 are considered to be in addition to the requirements of existing § 220.61.  

With regard to the requirements and application of new paragraph (e) as a whole, paragraph (e)(1) states that an authority is only considered to be in effect after the roadway worker in charge or lone worker confirmed that the affected train(s) have passed the point to be occupied or fouled by the roadway work group or lone worker.  This provision is necessary because in many instances the train(s) listed in the roadway worker in charge’s  authority may still be ahead of (i.e., may have not yet reached and traveled past) the point to be occupied or fouled. The text permits such confirmation to be made in three manners.  Confirmation may made by visually identifying the affected train(s), via direct radio contact with a crew member of the affected train(s), or by receiving information about the affected train(s) from the dispatcher or control operator.   

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Working limits established by exclusive track occupancy authority may occur behind designated trains moving through the same limits in accordance with the following provisions: 

When utilizing the provisions of paragraph (e)(1) of this section, a railroad’s operating rules shall include procedures prohibitting the affected train(s) from making a reverse movement into the limits being fouled or occupied.

After the roadway worker in charge or lone worker has confirmed that the affected trains(s) have passed the point to be occupied or fouled, the roadway worker in charge shall record on the authority the time of passage and engine number(s) of the affected trains(s).  If the confirmation is by direct communication with the train(s), or through confirmation by the train dispatcher or control operator, the roadway worker in charge shall record the time of such confirmation and the engine number(s) of the affected trains on the authority.

39

§ 214.321 Exclusive Track Occupancy.

Federal Railroad Administration

Moving America Forward

Paragraph (e)(2) states that when such confirmation is made by the roadway worker in charge visually identifying the affected train(s), the railroad’s operating rules must include procedures to prohibit such trains from making a reverse movement into the limits being fouled or occupied (this provision, in addition to the requirements of proposed § 214.321(e)(4) below, provides protection for roadway worker(s) located ahead of the point to be occupied who intend to “piggyback” on a roadway worker in charge’s exclusive track occupancy authority).  FRA believes this provision is necessary, as this method of making confirmation does not require the roadway worker in charge to actually talk to the crew of the affected train(s) (or for the train dispatcher to talk with the crew or verify that that train is beyond the point to be occupied), such that the crew may not be cognizant of the working limits or point to be occupied.  

Paragraph (e)(3) requires that after confirmation of the passage of affected train(s) is made, the roadway worker in charge shall record on the authority document (or display) both the time of passage and the engine (locomotive) numbers of the affected train(s).  If passage confirmation is made via radio communication with the train crew, the time of that communication along with the engine numbers must be recorded on the authority.  When confirmation of the passage of the affected train(s) is made via the train dispatcher or control operator, the time of such confirmation and the engine numbers must be recorded on the authority.  If the time and engine numbers are not recorded on the authority itself, FRA considers a separate written document used to record information regarding passing trains to be a component of the authority.  That separate document is required to be maintained along with the authority while it is in effect.  

Thus railroads have two options regarding the requirement to in (e)(3) to record the time of passage and engine numbers of trains passing the point to be occupied or fouled.  First, railroads can program their electronic authorities such that the roadway worker can enter the required information onto the authority and have access to such information while the authority is in effect.  In the alternative, the roadway worker in charge can write the time of passage and engine numbers on paper such that the information can be compared to that contained in the electronic authority.  The written information is considered part of the authority, and must be kept by the roadway worker while the authority is in effect via § 214.321(b)(2). 

FRA believes roadway workers must copy this information, because if a dispatcher gives a roadway worker authority behind or after the passage of a train(s), the engine numbers are a simple check to ensure that the train that has passed the roadway worker in charge’s location is indeed the train that the dispatcher had intended would pass before roadway workers fouled track.  FRA staff are aware of situations where there was confusion over whether the roadway workers could occupy a track after the passage of a particular train.  This provision helps eliminate any confusion, and in some instances, will save time by alleviating the need for additional dispatcher communication to verify the appropriate trains have passed the point to be occupied. 

Some commentators to the NPRM suggested that working limits should only be in effect after all trains and on-track equipment have reported clear of the working limits and if such conditional authorities are permitted to be utilized, that all trains and on-track equipment traveling within working limits must be required to operate at restricted speed.  However, FRA notes that in many instances, particularly in high-volume corridors, the potential economic costs of requiring all trains to travel at restricted speed within authority limits in occupancy behind situations would outweigh the economic benefits of this provision.  FRA also reiterates that in the absence of FRA action in this final rule, occupancy behind authorities would continue to be used regularly within the railroad industry without this final rule’s minimum safety requirements addressing such use.  Thus, FRA believes it is improving safety by adopting this provision. 

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Working limits established by exclusive track occupancy authority may occur behind designated trains moving through the same limits in accordance with the following provisions: 

A separate roadway work group afforded on-track safety by the roadway worker in charge of authority limits, and that is located away from the roadway worker in charge of authority limits, shall:

Occupy or foul the track only after receiving permission from the roadway worker in charge to occupy the working limits after the roadway worker charge has fulfilled the provisions of paragraph (e)(1) of this section; and

Be accompanied by an employee qualified to the level of a roadway worker in charge who shall also have a copy of the authority and who shall independently execute the required communication requirements of paragraphs (e)(1) and (e)(3) of this section.  

40

§ 214.321 Exclusive Track Occupancy.

Federal Railroad Administration

Moving America Forward

Paragraph (e)(4) requires that separate roadway work groups who are located away from the roadway worker in charge listed on the authority may only foul track under an occupancy behind authority after receiving permission to do so from the roadway worker in charge who received the authority and after the roadway worker in charge had fulfilled the provisions of proposed §§ 214.321(e)(1) & (e)(3).  

To minimize confusion, FRA has amended the NPRM’s reference to “roadway workers” in paragraph (e)(4) to instead refer to a “separate roadway work group”.  FRA’s intent was that each additional roadway work group piggybacking on the initial roadway work group’s authority would also have its own roadway worker qualified in accordance with § 214.353 who would communicate with the roadway worker in charge in such instances.  For the reasons explained above, the roadway worker in charge of another roadway work group piggybacking on an occupancy behind authority is also required to have a copy of such authority and fulfill the requirements of §§ 214.321(e)(1) & (e)(3) before working limits may be occupied or fouled at a particular location.  The authority information may be verbally transmitted by the roadway worker in charge to the additional roadway work group utilizing the working limits. 

In an instance where a second roadway work group wishes to piggyback on an occupancy behind authority, the roadway worker in charge of that second group must also have a copy of the authority and confirm that the affected trains have passed the group’s location before the group occupies the track.  FRA notes that this procedure is not limited to two roadway work groups, but that multiple groups may be involved.  As an example under this new provision, if the roadway worker in charge of a tie gang establishes working limits authority under paragraph (e), and a bridge gang two miles away wishes to piggyback on that authority, the bridge gang will be required to have its own roadway worker in charge who will communicate with the tie gang’s roadway worker in charge before permitting the bridge gang to foul the track.  In many regards, this is the same as how roadway work groups are utilized under another roadway worker in charge’s authority under existing part 214. 

FRA believes that from a safety perspective these requirements are necessary.  Where an additional roadway work group is located a distance from the roadway worker in charge who is listed on the authority, the only safe way for that additional roadway work group to ensure affected trains have passed their location is to make the required confirmation of train engine numbers.  This is necessary because a second roadway work group may have arrived at location either before or after an affected train listed on the authority has already passed that location.  Meaning, unless confirmation is made by each roadway work group, the group may not know how many affected trains have already passed (or if a train exited the track to be occupied before reaching a roadway work group’s location).  

If the roadway worker in charge listed on an authority is not physically present at a separate roadway work group’s location which may be some distance away, he or she cannot know whether a train has actually passed that other location to be able to tell an additional roadway work group whether it is safe to foul the track yet.  The roadway worker in charge at the particular location where the piggybacking group wishes to foul track must make that determination.  This procedure is necessary in order to avoid miscommunications between separate roadway work groups on an occupancy behind authority, and addresses safety concerns regarding occupancy behind authorities discussed by the Working Group.   Such qualification is necessary to ensure that the roadway worker in charge of a separate work group on utilizing another group’s authority has been trained on, and can apply, the rules regarding occupancy behind procedures.  It also ensures that a roadway worker in charge is present to recognize whether appropriate on-track safety measures are in place and to address any potential good faith challenges.  

As mentioned above, FRA has slightly amended the rule text of (e)(4) based on further evaluation of this issue, to more plainly account for situations where additional roadway work groups are located at the same place as the roadway worker in charge listed on the authority.  In that instance, the roadway worker in charge who obtained authority may confirm the passage of affected train(s), and may communicate to an additional roadway work group that it is safe to foul the track (without need for an additional roadway worker in charge to have a copy of the authority).   If the roadway worker in charge can visually see that the affected trains are past a separate roadway work group’s location, the roadway worker in charge of the authority can verbally inform the other roadway work group that it is permissible to foul the track without need for that second group to have a copy of the authority per (e)(4)(i)-(ii).  

Regarding paragraph (e)(4)’s requirement regarding an additional roadway worker in charge for roadway work groups that might piggyback within the working limits of the roadway worker in charge named on the authority, FRA has clarified in rule text above that this requirement only applies to separate roadway work groups at a location away from the roadway worker in charge listed on the authority.  This was FRA’s intent in formulating the NPRM proposal.  As to what constitutes a separate roadway work group, FRA agrees that a roadway work group is composed of roadway workers “. . . organized to work together on a common task” as defined by the definition of the term “roadway work group” at existing § 214.7.  In this regard, roadway workers who are part of the same group will continue to follow the instructions of the roadway worker in charge when fouling track, as is required in all instances under the existing regulation.  So, a large roadway work group that might be spread out over some distance will not be permitted to foul the track in question until the roadway worker in charge indicates the members of the roadway work group may do so (and after the passage of the trains listed on the authority).  

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Working limits established by exclusive track occupancy authority may occur behind designated trains moving through the same limits in accordance with the following provisions: 

Any subsequent train or on-track equipment movements within working limits after the passage of the affected train(s) shall be governed by paragraph (d) of this section.

41

§ 214.321 Exclusive Track Occupancy.

Federal Railroad Administration

Moving America Forward

Paragraph (e)(5) establishes that any subsequent train movements within working limits after passage of the affected trains listed on the authority will continue to be governed by existing § 214.321(d), or under the direction of the roadway worker in charge.   

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While it is in effect, all the contents of an authority electronically displayed shall be readily viewable by the roadway worker in charge that is using the authority to provide on-track safety for a roadway work group. 

If the electronic display device malfunctions, fails, or cannot display an authority while it is in effect, the roadway worker in charge shall either obtain a written or printed copy of the authority in accordance with § 214.321 (except that on-track roadway maintenance machine and hi-rail movements must stop) or establish another form of on-track safety without delay.  In the event that a written or printed copy of the authority cannot be obtained or another form of on-track safety cannot be established after failure of an electronic display device, the roadway worker in charge shall instruct all roadway workers to stop work and occupy a place of safety and conduct an on-track safety job briefing to determine the safe course of action with the roadway work group.

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§ 214.322 Exclusive Track Occupancy, Electronic Display.

Federal Railroad Administration

Moving America Forward

Existing § 214.321(b) permits an exclusive track occupancy authority to be issued via data transmission from the train dispatcher or control operator to the roadway worker in charge.  Certain railroads utilize electronic devices to display such authorities received via data transmission.  FRA anticipates that the use of such electronic devices to display working limits authorities will continue to grow, especially with the implementation of Positive Train Control systems.  As such, the Working Group considered this topic, and contemplated minimum requirements concerning the use of such electronic displays.  The Working Group agreed in principle to basic concepts concerning the use of electronic display for working limits.  However, the Working Group did not agree to overall consensus language.  

Paragraph (a) contains the items agreed to in principle by the Working Group, and establishes that an electronically displayed authority must be readily viewable by the roadway worker in charge while such authority is in effect.  

Paragraph (b) states that when a device malfunction or fails, or cannot otherwise display an authority in effect (e.g., batteries powering the electronic device displaying the authority lose charge), the roadway worker in charge must instruct all roadway workers to stop and occupy a place of safety until a written or printed copy of the authority can be obtained, or another form of on-track safety can be established.  FRA requested comment in the NPRM regarding whether to first allow the roadway worker in charge the opportunity to obtain a written copy of an authority before requiring the members of the roadway work group to stop work and occupy a place of safety (and if a written authority could not immediately be obtained, then requiring the work group to occupy a place of safety).

Paragraph (b) further states that the roadway worker in charge must conduct an on-track job safety briefing to determine the safe course of action with the roadway work group.  Paragraph (b) provide some degree of flexibility in situations where an electronic display fails and the roadway worker in charge cannot communicate with the train dispatcher via radio, which might occur in a deep rock cut or a tunnel, and a roadway work group may have to move within established working limits to a location where they are able to occupy a place of safety and/or re-establish communication with the dispatcher. 

FRA decided to allow the roadway worker in charge an opportunity to obtain a written or printed copy of an authority without delay before requiring roadway workers to occupy a place of safety because FRA believes that so long as an authority is still in effect and the only issue is the display failure, that in many instances the track on which working limits have been established is the safest place for a roadway worker to occupy.  However, FRA is specifying that any moving roadway maintenance machines must stop in the event of an electronic display failure, such that if there is a question about the limits of an authority that there is no risk of roadway workers traveling outside of protected working limits on a moving machine.  In the event that a new authority cannot be obtained or another form of on-track safety be established, work must then stop and roadway workers are required to occupy a place of safety.  A job safety briefing shall then be conducted with the roadway work group to determine the safe course of action.  FRA believes this is the appropriate course from a safety perspective in situations where a new authority cannot be obtained, because if questions arise regarding the on-track safety being provided, the working limits authority cannot be referenced or amended if necessary.  Of course, a method to prevent this situation from even occurring is for a roadway worker in charge to also print a copy of the authority after it is issued via data transmission.  In the event of a display failure, a copy of the authority is then already available for reference.

FRA has added the words “without delay” to describe how the roadway worker in charge shall go about obtaining another version of the authority if an electronic display fails.  This means that the roadway worker in charge must contact the dispatcher or obtain new authority directly upon noticing a display failure.  If, for example, the dispatcher responds by instructing the roadway worker to call back at a later time to obtain a new authority, then the roadway work group would be required to stop work and occupy a place of safety until an authority can be obtained.  If a dispatcher or control operator does not respond to contact attempts by the roadway worker in charge, the work group must stop work and occupy a place of safety.  In response to AAR’s comment regarding a tunnel or bridge and what constitutes a place of safety, FRA understands that the track on which working limits have been established might be the be best, or only, place of safety in such instances.  As such, FRA would not take exception to such situations, and would expect that the on-track job safety briefing that would follow a display failure would be utilized to determine the safest course of action for the group, even if the safest course of action is to continue to occupy the track on which working limits had been established.  

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All authorized users of an electronic display system shall be uniquely identified to support individual accountability.  A user may be a person, a process, or some other system that accesses or attempts to access an electronic display system to perform tasks or process an authority.  

All authorized users of an electronic display system must be authenticated prior to being granted access to such system.  The system shall ensure the confidentiality and integrity of all internally stored authentication data and protect it from access by unauthorized users.  The authentication scheme shall utilize algorithms approved by the National Institute of Standards and Technology (NIST), or any similarly recognized and FRA approved standards body.

43

§ 214.322 Exclusive Track Occupancy, Electronic Display.

Federal Railroad Administration

Moving America Forward

Paragraphs (c)-(h) address the technical attributes of the electronic display of exclusive track occupancy authorities, and are safety and security-related.  FRA is largely adopting the rule text as proposed in the NPRM, as discussed below. With regard to the application of new § 214.322, Paragraphs (c) and (d) provide for the identification and authentication of users.  A user refers to the roadway worker in charge and train dispatcher or control operator, as they are the persons who are most often involved in an exclusive track occupancy authority transaction.  A user could also be a process or a system that accesses or attempts to access an electronic display system to perform tasks or process an authority.  Identification is the process through which a user presents an identifier that is uniquely associated with that user, in order to gain access to an electronic authority display system.  

Authentication is the process through which an individual user’s identity is validated.  Most authentication techniques follow the “challenge-response” model by prompting the user (the challenge) to provide some private information (the response).  Basic authentication factors for individual users could involve information an individual knows, something an individual possesses, or something an individual is (e.g., personal characteristics or "biometrics", such as a fingerprint or voice pattern). 

Paragraph (d) requires that any authentication scheme utilized ensures the confidentiality of authentication data and protects that data from unauthorized access.  Such schemes are required to utilize algorithms approved by the Federal government’s National Institute of Standards and Technology (NIST), or any similarly recognized standards body.  This requirement parallels a similar requirement for Positive Train Control systems found at 49 CFR 236.1033(b) (75 FR 2598, 2676 (Jan. 15, 2010)), and is intended to help prevent deliberate “spoofing” or “man in the middle” attacks on exclusive track occupancy authority information communicated and displayed via electronic device.  NIST is the agency responsible for defining cryptographic algorithms for non-Department of Defense entities.  

 FRA considered adding several provisions to the final rule including:

Adding a provision regarding display survivability, addressing the ability of an electronic device to stand up to environmental conditions such as heat and cold as well as a provision regarding readability by a roadway worker, indicating that the display must be legible in all environmental conditions and appearing in text, with supplemental graphic displays allowed. 

Authorities transmitted electronically should be required to be retained for one year (versus the NPRM proposal of 72 hours).

The authority must be available for review, recall, and printing by the requesting employee during the time that it is in effect.  

Roadway workers should have the absolute right to speak to the dispatcher via voice communications rather than via data transmission to ensure proper on-track safety is in place.  

In further consideration, FRA believes the environmental requirements are unnecessary, as FRA has established requirements to provide for roadway worker safety in the event of a display failure.  Also, because of continuous improvement in technology, such technical standards for a display device would quickly become outdated, and also might be costly such that they cannot be justified economically.  Nevertheless, FRA expects railroads to take into account the environment that such devices will be subject to during use.  Railroads are always allowed to implement more restrictive security requirements provided the requirements do not conflict with Federal regulation.

For the following reasons, FRA also believes that regulation text requiring that electronic authorities be in text and that the roadway worker in charge should have an absolute right to talk to a dispatcher via voice communication instead of via data transmission are unnecessary.  Under existing § 214.313(c), roadway workers are already required to ascertain that on-track safety is being provided before fouling a track.  If there is any question regarding on-track safety, FRA urges roadway workers to clarify the extent of the working limits (or any other questions that may arise), and notes that § 214.313(d) already provides for a good faith challenge procedure.  If roadway workers are required to foul track while uncertain of the extent of the on-track safety being provided, FRA urges roadway workers to raise a good faith challenge and to not foul track until those questions have been resolved.  Further, the required on-track job safety briefing that is required to take place before track is fouled is also a tool to resolve any potential questions regarding the on-track safety being provided.  

With regard to requiring all authorities be retained for one-year, FRA believes such a requirement is not necessary.  First, FRA is already specifying that for electronic devices used to obtain an authority where an accident is then involved that such authority data must be kept for one-year, and for 72 hours in the absence of any accident.  FRA notes that there are no such similar requirements for written authorities under the sections in part 214 addressing working limits.  For cost reasons, FRA has chosen not to adopt any similar requirements for written authorities (though 49 CFR part 228’s requirements apply to certain dispatcher-created records), and also because traditionally FRA has not had issue obtaining copies of written authorities after an accident, and is also able to review dispatcher records and radio recordings.  As such, FRA is not certain what utility a one-year electronic retention requirement in the absence of an accident would provide, and is not certain any utility would outweigh potential costs.

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The integrity of all data must be ensured during transmission/reception, processing, and storage.  All new electronic display systems implemented on or after July 1, 2017 shall utilize a Message Authentication Code (MAC) to ensure that all data is error free.  The MAC shall utilize algorithms approved by NIST, or any similarly recognized and FRA approved standards body.  Systems implemented prior to July 1, 2017 may utilize a Cyclical Redundancy Code (CRC) to ensure that all data is error free provided:

The collision rate for the CRC check utilized shall be less than or equal to 1 in 232.  Systems implemented prior to July 1, 2017 that do not utilize a CRC with a collision rate less than or equal to 1 in 232 must be retired or updated to utilize a MAC no later than July 1, 2018 .

MAC and CRC checks shall only be used to verify the accuracy of an electronic authority data message and shall not be used in an error correction reconstruction of the data.  An authority must fail if the MAC or CRC checks do not match.

44

§ 214.322 Exclusive Track Occupancy, Electronic Display.

Federal Railroad Administration

Moving America Forward

Paragraph (e) addresses the transmission, reception, processing, and storage of exclusive track occupancy authority data, and is proposed to help ensure the integrity of such data.  Data integrity is the property of data not being altered since the time data was created, transmitted, or stored, and generally refers to the validity of the data.  This paragraph establishes that new electronic authority display systems placed into service after the effective date of a final rule in this rulemaking are required to utilize message authentication codes (MAC) to ensure data integrity.  Similar to the requirements of paragraph (d), MAC’s would be required to utilize algorithms approved by NIST or a similarly recognized standards body.  Unlike cyclical redundancy codes (CRC), MAC’s provide protection against malicious interference.  Paragraph (e) permits the use of systems implemented prior to the effective date of a final rule in this rulemaking to utilize CRC’s, but requires that the collision rate for the CRC checks utilized be less than or equal to 1 in 232.  This collision rate helps provide reasonable protection against accidental or non-malicious errors on channels that are subject to transmission errors, and is based on a Department of Defense standard.  Existing systems utilizing CRC’s that do not meet this minimum standard are required to be retired and replaced with systems that utilize MAC’s not later than one year after the effective date of this final rule.  Paragraph (e)(2) requires that MAC or CRC checks only be used to verify the accuracy of a message, and that an authority must fail if the checks do not match.

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Authorities transmitted to each electronic display device shall be retained in the device’s non-volatile memory for not less than 72 hours. 

If any electronic display device used to obtain an authority is involved in an accident/incident that is required to be reported to FRA under part 225 of this chapter, the railroad or employer that was using the device at the time of the accident shall, to the extent possible, and to the extent consistent with the safety of life and property, preserve the data recorded by each such device for analysis by FRA.  This preservation requirement permits the railroad or employer to extract and analyze such data, provided the original downloaded data file, or an unanalyzed exact copy of it, shall be retained in secure custody and shall not be utilized for analysis or any other purpose except by direction of FRA or the National Transportation Safety Board.  This preservation requirement shall expire one (1) year after the date of the accident unless FRA or the National Transportation Safety Board notifies the railroad in writing that the data are desired for analysis.

45

§ 214.322 Exclusive Track Occupancy, Electronic Display.

Federal Railroad Administration

Moving America Forward

Paragraph (f) requires that the actual electronic device used to display an authority issued via data transmission retain any authorities issued for a minimum of 72-hours after expiration of such authority.  This minimum requirement is primarily for investigation purposes, as it gives railroad safety investigating bodies such as FRA or the NTSB an opportunity to study authority data in non-reportable accident/incident situations, and to compare it to a dispatcher or control operator’s corresponding electronic authority transmission records.  This requirement will also be helpful in compliance audit situations.  

Paragraph (g) mirrors language found in 49 CFR 229.135(e) of FRA’s Railroad Locomotive Safety Standards.  Section 229.135(e) governs the preservation of data from locomotive event recorders or other locomotive mounted recorders in the event of an accident.  This paragraph uses the same language as found in existing § 229.135(e), and requires that railroads preserve data from any electronic device used to display an authority for one year from the date of a reportable accident/incident under 49 CFR part 225, unless FRA or the NTSB notifies the railroad in writing that the data are desired for analysis. 

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New electronic display systems implemented after July 1, 2017 shall provide Level 3 assurance as defined by NIST Special Publication 800-63-2, “Electronic Authentication Guideline.”  Systems implemented prior to July 1, 2017 shall provide Level 2 assurance.  Systems implemented prior to July 1, 2017 that do not provide Level 2 or higher assurance must be retired, or updated to provide Level 2 assurance, no later than July 1, 2018. The incorporation by reference of this NIST Special Publication was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.  You may obtain a copy of the incorporated document from the National Institute of Standards and Technology, 100 Bureau Drive, Stop 8930, Gaithersburg, MD 20899-8930, http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-63-2.pdf.  You may inspect a copy of the document at  the Federal Railroad Administration, Docket Clerk, 1200 New Jersey Avenue, SE, Washington, DC, or at the National Archives and Records Administration (NARA).  For information on the availability of this material at NARA, call (202) 741–6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

46

§ 214.322 Exclusive Track Occupancy, Electronic Display.

Federal Railroad Administration

Moving America Forward

Paragraph (h) requires that new electronic display systems implemented after the effective date of  this final rule will provide Level 3 assurance as defined by the August 2013, version of NIST Special Publication 800-63-2, “Electronic Authentication Guideline.”  NIST Special Publication 800-63-2 provides technical guidelines for widely used methods of electronic authentication, and is publicly available online at http://nvlpubs.nist.gov/nistpubs/SpecialPublications /NIST.SP.800-63-2.pdf .  Systems that were implemented prior to the effective date of this final rule in this rulemaking are required to provide at least Level 2 assurance as described in NIST Special Publication 800-63-2, and systems that do not provide Level 2 assurance or higher are required to be retired or updated to provide such assurance no later than one year after the effective date of this final rule.  These assurance levels govern the elements of the authentication process.  Level 2 assurance requires some identity proofing, and passwords are accepted (but not PINS).  Level 3 assurance requires more stringent identity proofing and multi-factor authentication, typically a password or a biometric factor used in combination with a software or hardware token.  

46

Working limits established on controlled track through the use of foul time procedures shall comply with the following requirements:

Foul time may be given orally or in writing by the train dispatcher or control operator only after that employee has withheld the authority of all trains or other on-track equipment to move into or within the working limits during the foul time period.  

Each roadway worker in charge to whom foul time is transmitted orally shall repeat the track number or identifier, track limits and time limits of the foul time to the issuing employee for verification before the foul time becomes effective.

The train dispatcher or control operator shall not permit the movement of trains or other on-track equipment into working limits protected by foul time until the roadway worker in charge who obtained the foul time has reported clear of the track.

The roadway worker in charge shall not permit the movement of trains or other on-track equipment into or within working limits protected by foul time. 

47

§ 214.323 Foul Time.

Federal Railroad Administration

Moving America Forward

Section 214.323 generally sets forth the requirements for establishing working limits on controlled track through the use of foul time.  In the final rule, FRA made several amendments to this section.  First, FRA added the words “or other on track equipment” to existing paragraph (a), which currently provides that foul time may be provided only after the relevant train dispatcher or control operator has withheld authority “of all trains” to move into or within the working limits.  This change is only for consistency purposes within this existing section, as existing paragraph (c) prohibits the movement of both trains and on-track equipment from moving into working limits while foul time is in effect.  This revision also acknowledges that the incursion of on-track equipment into or within working limits while foul time is in effect presents the same type of safety concern to roadway workers as would train movements.   

Next, FRA amended reference to “roadway worker” in existing paragraph (b) to “roadway worker in charge.”  This change was to reflect that a new definition for that term to replace the varying generic references to that roadway worker position that are currently located throughout the existing RWP regulation.  This change also makes clear that roadway workers in charge are the only employees who may establish working limits, which the RWP regulation has always required at § 214.319(a). 

In the final rule, FRA added a new paragraph (d) to this section.  Paragraph (d) expressly states that the roadway worker in charge is prohibited from permitting the movement of trains or other on-track equipment into or within working limits protected by foul time.  Foul time is a more abbreviated form of establishing working limits than that of exclusive track occupancy, and has its historical roots in the Northeast United States.  Foul time was typically for short-duration work activities with limited to no disturbance of the track structure.  Foul time is a form of working limits under the control of a roadway worker in charge, it does not provide for the same flexibility as does exclusive track occupancy (i.e., movement into or through the foul time limits under the direction of the roadway worker in charge). The original RWP regulation and accompanying section-by-section analysis did not describe what type of activities could occur under foul time procedures, or expressly state that the roadway worker in charge was not permitted to allow the movement of trains or equipment into or within working limits.  As such, foul time in some locations is not being used as was originally intended.  

In this final rule FRA has also added the words “or track identifier” to paragraph (b) of this section. FRA believes it is understood, and has been permissible under the existing RWP regulation, that where applicable, a track identifier may be used to positively identify the track(s) on which working limits are being established. Otherwise, this final rule adopts the revisions to this section as proposed in the NPRM.

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Working limits established on controlled track by a roadway worker in charge through the use of train coordination shall comply with the following requirements:

Working limits established by train coordination shall be within the segments of track or tracks upon which only one train holds exclusive authority to move.

The roadway worker who establishes working limits by train coordination shall communicate with a member of the crew of the train holding the exclusive authority to move, and shall determine that:

The train is visible to the roadway worker who is establishing the working limits,

The train is stopped,

Further movements of the train will be made only as permitted by the roadway worker in charge of the working limits while the working limits remain in effect, and

The crew of the train will not give up its exclusive authority to move until the working limits have been released to the train crew by the roadway worker in charge of the working limits.

48

§ 214.325 Train Coordination.

Federal Railroad Administration

Moving America Forward

In the final rule, FRA has made a minor amendment to existing § 214.325.  As established by existing § 214.319, § 214.325 governs the establishment of working limits on controlled track via train coordination.  However, unlike the other controlled track working limits provision (§§ 214.321, 214.323, the existing text of § 214.325 does not actually state that is applies to working limits established on controlled tracks.  Therefore, FRA added the words “on controlled tracks” to the first sentence of the introductory paragraph of § 214.325 for consistency and clarity purposes.  FRA also proposed to add the words “in charge” after the existing words “roadway worker” in the first sentence of the introductory paragraph, in order to help provide uniformity of reference to “roadway worker[s] in charge” at various locations in the RWP regulation text.  

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Working limits on non-controlled track shall be established by rendering the track within working limits physically inaccessible to trains at each possible point of entry by one of the following features:

A flagman with instructions and capability to hold all trains and equipment clear of the working limits;

A switch or derail aligned to prevent access to the working limits and secured with an effective securing device by the roadway worker in charge of the working limits;

A discontinuity in the rail that precludes passage of trains or engines into the working limits;

Working limits on controlled track that connects directly with the inaccessible track, established by the roadway worker in charge of the working limits on the inaccessible track; or

A remotely controlled switch aligned to prevent access to the working limits and secured by the control operator of such remotely controlled switch by application of a locking or blocking device to the control of that switch, when:

The control operator has secured the remotely controlled switch by applying a locking or blocking device to the control of the switch, and

The control operator has notified the roadway worker who has established the working limits that the requested protection has been provided, and

The control operator is not permitted to remove the locking or blocking device from the control of the switch until receiving permission to do so from the roadway worker who established the working limits.

49

§ 214.327 Inaccessible Track.

Federal Railroad Administration

Moving America Forward

In the final rule, FRA added three new provisions to § 214.327, all of which were consensus items recommended by the Working Group.  As background, existing § 214.327 governs the establishment of working limits on non-controlled track.  As explained in the preamble to the final rule which promulgated the original RWP regulation, trains can operate on non-controlled track without first having to receive specific authority to do so.  61 FR 65791.  Unlike in an exclusive track occupancy situation on controlled track governed by § 214.321, a dispatcher or control operator cannot withhold a train’s movement authority to enter a specified set of working limits on non-controlled track.  Thus, in order to establish working limits on non-controlled track, the track must be rendered inaccessible.   These three consensus provisions expand the number of available methods to make such non-controlled track inaccessible.   

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Working limits on non-controlled track shall be established by rendering the track within working limits physically inaccessible to trains at each possible point of entry by one of the following features:

A locomotive with or without cars placed to prevent access to the working limits at one or more points of entry to the working limits, provided the following conditions are met:  

The roadway worker in charge who is responsible for establishing working limits communicates with a member of the crew assigned to the locomotive and determines that:

The locomotive is visible to the roadway worker in charge that is establishing the working limits; and 

The locomotive is stopped.

Further movements of the locomotive shall be made only as permitted by the roadway worker in charge controlling the working limits;

The crew of the locomotive shall not leave the locomotive unattended or go off-duty unless communication occurs with the roadway worker in charge and an alternate means of on-track safety protection has been established by the roadway worker in charge; and

Cars coupled to the locomotive on the same end and on the same track as the roadway workers shall be connected to the train line air brake system and such system shall be charged with compressed air to initiate an emergency brake application in case of unintended uncoupling.  Cars coupled to the locomotive on the same track on the opposite end of the roadway workers shall have sufficient braking capability to control their movement. 

50

§ 214.327 Inaccessible Track.

Federal Railroad Administration

Moving America Forward

New paragraph (a)(6) codifies what informally may be referred to as an “iron flagman” to render non-controlled track inaccessible.  This provision permits the use of a manned locomotive with or without cars as to establish a point of inaccessibility into working limits.  Paragraph (a)(6) requires that to establish a locomotive as a point of inaccessibility, the roadway worker in charge first has to communicate with the train crew in control of the such locomotive and determine that the locomotive is visible to the roadway worker in charge.  Next, the locomotive is required to be stopped, and any further movements of the locomotive may only be made as permitted by the roadway worker in charge.   These requirements all parallel existing requirements in the train coordination provision at § 214.325.  FRA notes that the roadway worker in charge of the working limits and the train crew assigned to the locomotive have to communicate directly with one another and have a clear understanding of the procedures to be followed.  

In addition, paragraph (a)(6) requires that the crew of the locomotive shall not leave the locomotive unattended or go off duty unless communication occurs with the roadway worker in charge,  and an alternate means of on-track safety protection is established.   The last requirement of this paragraph addresses the concern of movement of any cars that may be coupled to the locomotive were those cars to be uncoupled.  Cars coupled to the end of the locomotive where roadway workers are being protected (nearest to the roadway workers) are required to be connected to the train’s air brake system if this paragraph is to be utilized to provide on-track safety in such a scenario, and such system is required to be charged with air in order to initiate an emergency brake application in case of unintended uncoupling.  Cars coupled to the locomotive on the same track on the opposite end of the roadway workers must have sufficient braking capability to control movement.

Note:  Paragraph (6) does not include the use of any other type of on-track equipment to establish on-track safety, rather than just via the use of a locomotive.  The Working Group did not recommend such an expansion to include other on-track equipment to FRA during the RSAC process.  FRA would have significant safety concerns with the use of on-track equipment in this manner.  Other on-track equipment typically weighs less than a locomotive, and which might not have a similar level of positive air brake protection provided by a locomotive or a by a train.  So, such on-track equipment might not prevent resistance to a rolling freight car that was kicked or other rolling equipment that a locomotive or train might.  Further, another piece of on-track equipment adjacent to the a roadway work group is likely to be part of the roadway work group, and FRA does not want an operator of such a piece of equipment to be performing substantive track maintenance or repair duties with a machine while simultaneously also being required to provide for on-track safety for the roadway work group by way of acting as a physical block.  

FRA wishes to avoid situations where roadway maintenance machinery performing work is also tasked to provide on-track safety for roadway work groups.  FRA believes such an allowance could diminish the safety of roadway workers on the ground, and could lead to confusion. 

This procedure mimics some of the provisions of train coordination under existing § 214.325, which is a method of establishing working limits on controlled track.  However, it is critical that this provision not be confused with train coordination.  When train coordination is used, on-track safety is derived through the use of a train’s occupancy authority.   On non-controlled track, no occupancy authority exists, and additional trains could move into the same segment of track at any time.  

Where free rolling equipment is a concern, FRA notes that the use of a flagman is only permitted when a flagman has the “capability” to hold all trains and equipment clear of working limits.  Clearly, in an instance where free rolling equipment is a concern, the use of a flagman is not permitted as the flagman does not have the capability to hold such equipment.  In contrast, the use of an “iron flagman” under this new paragraph (a)(6) might be appropriate.  

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Working limits on non-controlled track shall be established by rendering the track within working limits physically inaccessible to trains at each possible point of entry by one of the following features:

A railroad’s procedure governing block register territory that prevents trains and other on-track equipment from occupying the track when the territory is under the control of a lone worker or roadway worker in charge.  The roadway worker in charge or lone worker shall have the absolute right to render such block register territory inaccessible under the other provisions of paragraph (a) of this section.

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§ 214.327 Inaccessible Track.

Federal Railroad Administration

Moving America Forward

Paragraph (a)(7) in the final rule addresses the use of block register territory rules as a method to render track inaccessible.  Generally, in block register territory trains can only occupy a block of track after viewing a log book or register sheet to ensure no other trains or equipment are occupying that block.  After making such verification, the train crew wishing to occupy that block would then make an entry into the log book indicating the block was occupied by their train.  Upon exiting a block, the crew would make an entry noting that the block was cleared.  The Working Group addressed the issue of the potential use of block registers to establish non-controlled track working limits, and recommended consensus language which would permit a roadway worker in charge or lone worker to utilize the procedures governing block register territory to establish working limits within such territory.  

Under this new paragraph (a)(7), working limits will have been permissibly established when a roadway worker in charge or lone worker complies with the applicable railroad procedures for occupying a block register territory and makes the required log entries to indicate the block is occupied.  In doing so, no trains or other on-track equipment are permitted to enter such block under a railroad’s operating rules.  

The final rule provides flexibility to the roadway worker in charge or lone worker to utilize a provision in paragraphs (a)(1)-(a)(6), or paragraph (a)(8) of this section to establish working limits, rather than utilizing this block register territory procedure.  The lone worker or roadway worker in charge has the absolute right to render such track in a block register territory inaccessible via the other provisions of this section if they chose to do so, for any reason.  

Roadway workers are already required by existing § 214.313(a) of the RWP regulation to follow all on-track safety rules and procedures of a railroad.  Thus, in complying with proposed paragraph (a)(7), roadway workers would be required to comply with all applicable rules governing the occupation of track in a block register territory.  

FRA notes that while block register territory is generally considered non-controlled track, where a train dispatcher or other employee must authorize occupancy or movement on a track in block register territory, this proposed section would not apply.  FRA considers such track controlled track, and the permissible on-track safety methods for controlled track under the RWP regulation would apply.  

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Working limits on non-controlled track shall be established by rendering the track within working limits physically inaccessible to trains at each possible point of entry by one of the following features:

Railroad operating rules that prohibit train or engine movements on a main track within yard limits or restricted limits until the train or engine or on-track equipment receives notification of any working limits in effect and prohibit the train or engine or on-track equipment from entering working limits until permission is received by the roadway worker in charge.  Such working limits shall be delineated with stop signs (flags), and where speeds are in excess of restricted speed and physical characteristics permit, also with advance signs (flags). 

Trains and roadway maintenance machines within working limits established by means of inaccessible track shall move only under the direction of the roadway worker in charge of the working limits, and shall move at restricted speed.

No operable locomotives or other items of on-track equipment, except those present or moving under the direction of the roadway worker in charge of the working limits, shall be located within working limits established by means of inaccessible track.

52

§ 214.327 Inaccessible Track.

Federal Railroad Administration

Moving America Forward

Paragraph (a)(8) in the final rule addresses the establishment of working limits on non-controlled main tracks within yard limits and restricted limits via the use of a bulletin.  This provision was a Working Group consensus item, and permits working limits to be established whereby trains are issued bulletins in advance of occupying such main track which would notify them of such working limits.

Under paragraph (a)(8), railroad operating rules are required to prohibit movements on main track within yard limits or restricted limits unless the train or engine crew or operator of on-track equipment is first required to receive notification of any working limits in effect.   Before occupying such main track where the notification denoting that working limits are in effect, the crews or operators are first required to receive permission from the roadway worker in charge to enter the working limits.  Working limits established in this manner would be issued by a railroad for planned work activities, such that bulletins or other forms of notification would be prepared ahead of the work to be performed in time to be issued to train crews or operators.  Unplanned work that would not allow notifications to be issued appropriately to train crews or operators will require that another form of working limits or on-track safety be established.  

This provision also requires, where maximum authorized speed is restricted speed as defined by § 214.7, that red flags or signs be displayed at the limits of the authority.  This requirement provides an extra measure of safety by providing train crews notice that, unless they have received permission through working limits, they must stop their movement.  Where restricted speed is in effect, train crews or operators are required to stop their movement within one-half the range of vision.  Therefore, crews that have not received permission to enter working limits from the roadway worker in charge, and who come upon such a red flag, are required to stop their movement within one-half the distance to the flag, which would be short of working limits.  

Where the maximum authorized speed is in excess of restricted speed, advance warning flags or signs must be displayed if physical characteristics permit, such that a crew would have an opportunity to stop their train short of working limits if they had not received permission to enter the limits from the roadway worker in charge.  Paragraph (a)(8) was an RSAC consensus recommendation.  

Note: This procedure which was aimed toward conducting planned work activities, is comparable to longstanding existing requirements to establish working limits on controlled track, where a bulletin is issued to train crews denoting the existence of working limits, advance and stop flags are placed out along the track to denote the working limits, and the roadway worker in charge must give a train permission before the train is authorized to enter working limits.  Such procedures have proven to be safe when complied with, and those  procedures are used on main track where train speeds much higher than restricted speed are permitted.   Also, under existing § 214.327, flagmen (without benefit of bulletins to train crews or mandatory use of advance flags) are permitted to be used to make non-controlled track inaccessible.  Appropriately placed stop boards have the same effect as does the use of a flagman, that is, to designate the point at which trains or other on-track equipment may not travel any further without permission.  Here, the requirement that bulletins first be issued to train crews, and that advance flags be placed out where speeds higher than restricted speed are authorized when physical characteristics permit, represent two additional measures of safety not provided by § 214.327’s existing provision authorizing the use of flagmen.  Further, it is FRA’s belief that in most situations, speeds in excess of restricted speed will not be involved, as the main track within yard limits or restricted limits in this country have traditionally required compliance with restricted speed operating rules.  FRA is also not adopting an absolute requirement that advance flags be placed out because that is not possible in all instances.  Where there are many entrance switches from a railroad yard to a section of non-controlled main track, advance flags might not be able to be placed out, and would not serve any utility for a train that is leaving a yard track at restricted speed to enter the main track that encounters a red stop flag.  Railroad operating rules in this country have long addressed the use of advance flags, and contain specific provisions for when advance flags are not necessary (e.g., when entering a railroad’s yard limits from a foreign railroad’s track, where advance flags cannot be placed out). 

52

Roadway workers in a roadway work group who foul any track outside of working limits shall be given warning of approaching trains by one or more watchmen/lookouts in accordance with the following provisions:

Train approach warning shall be given in sufficient time to enable each roadway worker to move to and occupy a previously arranged place of safety not less than 15 seconds before a train moving at the maximum authorized speed on that track can pass the location of the roadway worker.  The place of safety to be occupied upon the approach of a train may not be on a track, unless working limits are established on that track.  

Watchmen/lookouts assigned to provide train approach warning shall devote full attention to detecting the approach of trains and communicating a warning thereof, and shall not be assigned any other duties while functioning as watchmen/lookouts.

The means used by a watchman/lookout to communicate a train approach warning shall be distinctive and shall clearly signify to all recipients of the warning that a train or other on-track equipment is approaching.

53

§ 214.329 Train Approach Warning Provided By Watchmen/Lookouts.

Federal Railroad Administration

Moving America Forward

Section 214.329 addresses the use of watchmen/lookouts to provide warning of approaching trains to roadway workers in a roadway work group who foul any track outside of working limits.  In the final rule, FRA made two amendments to this section. 	

In the final rule, FRA amended paragraph (a) to change reference to “maximum speed authorized” to instead read “maximum  authorized speed.”  This amendment is to reflect that the Working Group recommended a consensus definition for the term “maximum authorized speed” for purposes of providing clarity to existing sections §§ 214.329(a) and 214.337(c)(4).   FRA amended these two sections merely to reflect the proper word ordering for the new consensus term recommended by the Working Group, and which has been adopted by FRA in this final rule.  

FRA modified paragraph (a) of this section by adding a sentence to the end of the paragraph that reads “[t]he place of safety to be occupied upon the approach of a train may not be on a track, unless working limits are established on that track.”  This language is already included in existing § 214.337(d), which governs on-track safety procedures for lone workers.   This requirement is also the subject of FRA Technical Bulletin G-05-10.  As explained in that Technical Bulletin, it is expected that roadway workers clear all tracks upon being given train approach warning, as by clearing onto another track where only train approach warning (or no form on-track safety) is being provided presents an extremely dangerous situation which may potentially trap workers if multiple train movements occur simultaneously.  FRA has long interpreted existing § 214.329 to already prohibit the use of another track as a place of safety, and this amendment merely codifies that interpretation. 

If a place of safety is designated as another track protected by a watchman/lookout, but a train approaches on that track (which is designated as the place of safety) while roadway workers clear toward it, the situation is the same as having no on-track safety at all.  Common sense dictates that if roadway workers are given train approach warning and clear onto another track where nothing stops a train from also approaching on that track at the same time, that a trap has been set that endangers roadway workers who are left without a place of safety to alight to.  Thus, a general exclusion in the regulation that would permit such a situation to occur is not appropriate from a safety perspective.  If a unique situation exists at a particular location whereby roadway workers will always have an appropriate place of safety to occupy upon the approach of a train, FRA believes that a waiver application from this safety-critical requirement could be appropriate to address such unique situations.  FRA Technical Bulletin G-05-10 is supplanted upon the effective date of this final rule. 

53

Roadway workers in a roadway work group who foul any track outside of working limits shall be given warning of approaching trains by one or more watchmen/lookouts in accordance with the following provisions:

Every roadway worker who depends upon train approach warning for on-track safety shall maintain a position that will enable him or her to receive a train approach warning communicated by a watchman/lookout at any time while on-track safety is provided by train approach warning.

Watchmen/lookouts shall communicate train approach warnings by a means that does not require a warned employee to be looking in any particular direction at the time of the warning, and that can be detected by the warned employee regardless of noise or distraction of work.

Every roadway worker who is assigned the duties of a watchman/lookout shall first be trained, qualified and designated in writing by the employer to do so in accordance with the provisions of §214.349.

Every watchman/lookout shall be provided by the employer with the equipment necessary for compliance with the on-track safety duties which the watchman/lookout will perform.

54

§ 214.329 Train Approach Warning Provided By Watchmen/Lookouts.

Federal Railroad Administration

Moving America Forward

Paragraphs (b) – (g) remain as the existing.

FRA proposed in the NPRM to add a new paragraph (h) to this section.  This paragraph would have prohibited the use of train approach warning as an acceptable form of on-track safety for a roadway work group using equipment or material that cannot be readily removed by hand from the track to be cleared.  FRA declined to adopt this proposal in the final rule.  	

While FRA has chosen not to adopt a provision in this final rule addressing the removal of equipment or material by hand under train approach warning, FRA is addressing a related matter where questions occasionally arise under part 214.  In part 214, no rule text prohibits the use of train approach warning used outside of working limits to provide on-track safety when on-track roadway maintenance machine foul track.  Such blanket rule text is not appropriate because train approach warning (or individual train detection under § 214.337) must sometimes be used when a hi-rail or other on-track machine sets on a track to begin traveling (perform roadway inspection duties) under the operating rules of the railroad.  In certain instances, depending on applicable railroad operating rules and the operational conditions at a location, the use of train approach warning or individual train detection can be appropriate.  

However, FRA notes that the use of train approach warning to provide on-track safety for roadway workers who are performing roadway work involving the use of on-track equipment would most often be in violation of existing § 214.329.  In a recent example, FRA Inspectors observed a roadway work group using multiple pieces of on-track equipment that were spread out over a distance of nearly a mile.  Upon investigation, it was learned that the roadway work gang was apparently using train approach warning under § 214.329 as a form of on-track safety, with a watchman/lookout stationed at each end of the roadway work group.  The location where FRA observed this violation was on non-controlled track where trains were required to travel at restricted speed.  In this situation, it was not possible for the railroad to comply with § 214.327.  The machine operators were operating noisy and distracting machinery that would require that they look in a particular direction at the time of the warning in order to receive such warning, in violation of § 214.329(e).  Second, the distance over which the group was spread and the type of work being performed by the group made it impossible for a watchman/lookout a great distance away to even be able to provide train approach warning to all members of the roadway work group, which is also in violation of § 214.329.  It appears that in this instance the railroad was relying on the requirement that movements must be made at restricted speed to protect the roadway work group. 

As explained in the original 1996 RWP final rule, the RWP regulation does not recognize restricted speed as a sole means of providing on-track safety.  61 FR 65969.  The final rule indicated that in “. . . unusual circumstances at certain locations where [restricted speed] might be considered sufficient would have to be addressed by the waiver process.” Id. at 65962.  Instead, in the above-described instance, the use of qualified flagmen to establish working limits (or any other method of establishing working limits under § 214.327) rather than the use of watchman/lookouts would have been appropriate.  

Aside from noise, distraction, and distance from a watchmen/lookout, the use of train approach warning might also not be permissible to provide on-track safety under part 214 for another reason.  Roadway workers who are operating such machines under train approach warning would have to be able to stop a machine, dismount a machine , and then move to occupy a place of safety at least 15 seconds prior to the arrival of a train traveling maximum authorized speed at the roadway workers location.  In many such instances, compliance with § 214.329 is not possible.   An operator inside the cab of a machine requires much greater time to occupy a place of safety versus a roadway worker who might merely be standing in the foul of a track and can easily move to a place of safety.  In addition, where train speeds are permitted to exceed restricted speed, in almost all instances only the establishment of working limits is appropriate to establish on-track safety.  To illustrate, even assuming that proper train approach warning could be given to roadway workers operating on-track machinery such that they could occupy a place of safety at least 15 seconds prior to a train’s arrival, if trains are permitted to travel in excess of restricted speed, nothing prevent a train from colliding with the on-track equipment left on the occupied track.  Railroad operating rules are generally the mechanism relied upon to prevent the collision of trains and on-track roadway maintenance.  However, the strict guidelines in § 214.329, and common sense, dictate that that in most instances where roadway workers are performing work on an occupied track with on-track machinery that train approach warning is not an appropriate or permissible method of providing on-track safety for roadway workers.  

Lastly, FRA Technical Bulletin G-05-28 addresses the use of portable radios and cell phones. That technical bulletin explains that under existing § 214.329, that such devices cannot be used as the sole communication to provide train approach warning to roadway workers.  These devices are not among those expressly listed in the existing watchman/lookout definition in § 214.7.  Further, FRA believes this practice to be dangerous; especially should these devices fail in any manner as a train approaches a roadway work group.  While FRA has no objection to a radio or a cell phone being used to supplement the equipment issued to a watchman/lookout to provide train approach warning, these devices are not permitted by the RWP regulation to provide the sole auditory warning in accordance with this part.  This discussion in this final rule will supplant FRA Technical Bulletin G-05-28 upon the effective date of the final rule.

54

A roadway worker may establish on-track safety by using definite train location only where permitted by and in accordance with the following provisions

A Class I railroad or a commuter railroad may only use definite train location to establish on-track safety at points where such procedures were in use on January 15, 1997. 

Each Class I or commuter railroad shall include in its on-track safety program for approval by FRA in accordance with §214.307 of this part a schedule for phase-out of the use of definite train location to establish on-track safety. 

A railroad other than a Class I or commuter railroad may use definite train location to establish on-track safety on subdivisions only where:

Such procedures were in use on January 15, 1997, or

The number of trains operated on the subdivision does not exceed:

Three during any nine-hour period in which roadway workers are on duty, and

Four during any twelve-hour period in which roadway workers are on duty.

55

§ 214.331 Definite Train Location.

Federal Railroad Administration

Moving America Forward

FRA has amended this section to require that the use of definite train location as a form of on-track safety be discontinued one year after publication of this final rule.  Railroads were permitted to use this form of on-track safety if they already had such procedures in effect as of January 15, 1997, as established by existing §§ 214.331(a) & (c)(1).  Class I and commuter railroads that were grandfathered in by that date were required to schedule a phase-out of the use of definite train location by a definite date, as more positive forms of on-track safety are now available.

55

A roadway worker may establish on-track safety by using definite train location only where permitted by and in accordance with the following provisions

Definite train location shall only be used to establish on-track safety according to the following provisions:

Definite train location information shall be issued only by the one train dispatcher who is designated to authorize train movements over the track for which the information is provided. 

A definite train location list shall indicate all trains to be operated on the track for which the list is provided, during the time for which the list is effective.

Trains not shown on the definite train location list shall not be operated on the track for which the list is provided, during the time for which the list is effective, until each roadway worker to whom the list has been issued has been notified of the train movement, has acknowledged the notification to the train dispatcher, and has canceled the list. A list thus canceled shall then be invalid for on-track safety.

Definite train location shall not be used to establish on-track safety within the limits of a manual interlocking, or on track over which train movements are governed by a Traffic Control System or by a Manual Block System.

Roadway workers using definite train location for on-track safety shall not foul a track within ten minutes before the earliest time that a train is due to depart the last station at which time is shown in approach to the roadway worker's location nor until that train has passed the location of the roadway worker.

A railroad shall not permit a train to depart a location designated in a definite train location list before the time shown therein.

Each roadway worker who uses definite train location to establish on-track safety must be qualified on the relevant physical characteristics of the territory for which the train location information is provided.

56

§ 214.331 Definite Train Location.

Federal Railroad Administration

Moving America Forward

No changes to paragraph (d) from the existing regulation have been added in the final rule.

56

A roadway worker may establish on-track safety by using definite train location only where permitted by and in accordance with the following provisions

Each on-track safety program that provides for the use of definite train location shall discontinue such use by June 12, 2017.

57

§ 214.331 Definite Train Location.

Federal Railroad Administration

Moving America Forward

57

As it has been over 17 years since the scheduled phase-out requirement was promulgated, this final rule will disallow the use of this form of on-track safety in one year.  As discussed in the preamble to the final rule which promulgated this section, the Advisory Committee involved in creating the original RWP regulation stated that the use of train line-ups was not common at that time, and recommended that such use be further reduced and discontinued.  61 FR 65971. 

A railroad is permitted to include informational line-ups of trains in its on-track safety program for use only on subdivisions of that railroad upon which such procedure was in effect on March 14, 1996.

Each procedure for the use of informational line-ups of trains found in an on-track safety program shall include all provisions necessary to protect roadway workers using the procedure against being struck by trains or other on-track equipment.

Each on-track safety program that provides for the use of informational line-ups shall include a schedule for discontinuance of the procedure by a definite date discontinue such use by June 12, 2017.

58

§ 214.333 Informational Line-ups Of Trains.

Federal Railroad Administration

Moving America Forward

FRA is requiring that the use of informational line-ups of trains as a form of on-track safety be discontinued one year after publication of this final rule.  Railroads were permitted to use this form of on-track safety if they already had such procedures in effect as of March 14, 1996, as established by existing § 214.333(a).  Railroads that were grandfathered in by that date were required by paragraph (c) to schedule a phase-out of the use of information line-ups of trains, as more positive forms of on-track safety are now available.  As it has been over 17 years since the scheduled phase-out requirement was promulgated, this final rule will disallow the use of this form of on-track safety in one year.  As discussed in the preamble to the final rule which promulgated this section, the Advisory Committee involved in creating the original RWP regulation stated that the use of train line-ups was not common at that time, and recommended that such use be further reduced and discontinued.  61 FR 65971.   

58

No employer subject to the provisions of this part shall require or permit a roadway worker who is a member of a roadway work group to foul a track unless on‐track safety is provided by either working limits, train approach warning, or definite train location in accordance with the applicable provisions of §§ 214.319, 214.321, 214.323, 214.325, 214.327, 214.329, 214.331 and or 214.336.

No roadway worker who is a member of a roadway work group shall foul a track without having been informed by the roadway worker in charge responsible for the on-track safety of the roadway work group that on-track safety is provided.

59

§ 214.335 On-Track Safety Procedures For Roadway 

Work Groups, General.

Federal Railroad Administration

Moving America Forward

Section 214.335 sets forth the general on-track safety procedures for roadway work groups and, in part, requires that before a member of a roadway work group fouls a track, on-track safety must be established in accordance with part 214.  The final rule, reflects that the adjacent track rulemaking slightly amended the title of this existing section by adding the word “general.”  FRA is adopting two amendments to this section. 

First, FRA removed the word “and” from the existing text of paragraph (a) between reference to § 214.329 and § 214.331, and replacing it with the word “or”.  The word “and” has appeared in the text of this section since the RWP regulation’s inception in 1996.  However, FRA noticed that as written, the word “and” could imply that all of the on-track safety/working limits sections listed would have to be provided when a roadway worker fouls a track.  This is obviously not what was intended when this section was promulgated, nor is it how this section has been applied.  FRA believes the use of the word “or” is more appropriate when listing the various sections that may be utilized to provide on-track safety for roadway workers.   

For consistency purposes, FRA is also incorporating the new term “roadway worker in charge” into existing paragraph (b) of this section.  That term would replace the existing language in paragraph (b) that generically refers to the “roadway worker responsible for the on-track safety of the roadway work group.”  This amendment will help provide uniformity of reference to “roadway worker[s] in charge” at various locations in the RWP regulation text.  

59

A lone worker who fouls a track while performing routine inspection or minor correction may use individual train detection to establish on-track safety only where permitted by this section and the on-track safety program of the railroad.

A lone worker retains an absolute right to use on-track safety procedures other than individual train detection if he or she deems it necessary, and to occupy a place of safety until such other form of on-track safety can be established.

Individual train detection may be used to establish on-track safety only:

By a lone worker who has been trained, qualified, and designated to do so by the employer in accordance with §214.347 of this subpart;

While performing routine inspection and minor correction work;

On track outside the limits of a manual interlocking, a controlled point (except those consisting of signals only), or a remotely controlled hump yard facility;  

Where the lone worker is able to visually detect the approach of a train moving at the maximum speed authorized on that track, and move to a previously determined place of safety, not less than 15 seconds before the train would arrive at the location of the lone worker;

Where no power-operated tools or roadway maintenance machines are in use within the hearing of the lone worker; and

Where the ability of the lone worker to hear and see approaching trains and other on-track equipment is not impaired by background noise, lights, precipitation, fog, passing trains, or any other physical conditions.

60

§ 214.337 On-Track Safety Procedures For Lone Workers.

Federal Railroad Administration

Moving America Forward

Section 214.337 governs the on-track safety procedures for lone workers.  FRA adopted two changes to this section in the final rule, both of which were Working Group consensus recommendations. 

Concerns have been expressed regarding the adoption of the new terms “controlled point” and “interlocking, manual” related to whether power-operated switches, remotely-controlled switches and other mechanisms were affected by those definition as they relate to § 214.337(c)(3)’s restrictions on the use of individual train detection.  FRA is addressing those concerns in the preamble discussion of § 214.7’s definitions. 

Existing § 214.337 prohibits lone workers from using individual train detection (ITD) as the method of establishing on-track safety in certain locations.  Specifically, existing paragraph (c)(3) prohibits the use of ITD within the limits of a manual interlocking, a controlled point, or a remotely controlled hump yard facility.  In a hump yard, equipment can simultaneously move in either direction on a multitude of tracks.  Similarly, within the limits of a manual interlocking or a controlled point, a particular physical layout may contain multiple switches, tracks, diamonds, or a movable bridge(s).  As such, the prohibition on using ITD in those locations recognized that it would be difficult for a lone worker to perform work while safely detecting trains that could be approaching from multiple directions on multiple tracks.  

FRA adopted the RSAC’s consensus recommendation in the final rule that would allows the use of ITD at controlled points that consist of signals only.  The use of ITD at a controlled point consisting of signals only presents no more danger than using ITD for on-track safety on any track within a traffic control system.  There is no additional risk to lone worker safety because if a controlled point consists of signals only, there are no switches, diamonds, or movable bridges that the lone worker needs to monitor for purposes of train detection on multiple tracks.  Thus, FRA has amended existing paragraph (c)(3) to incorporate this consensus recommendation which states that ITD can only be used “outside the limits of a manual interlocking, a controlled point (except those consisting of signals only), or a remotely controlled hump yard facility.”  

FRA did not expand the use of ITD beyond that of the Working Group’s consensus recommendation because of safety concerns.

60

The place of safety to be occupied by a lone worker upon the approach of a train may not be on a track, unless working limits are established on that track.

A lone worker using individual train detection for on-track safety while fouling a track may not occupy a position or engage in any activity that would interfere with that worker's ability to maintain a vigilant lookout for, and detect the approach of, a train moving in either direction as prescribed in this section.

A lone worker who uses individual train detection to establish on-track safety shall first complete a written Statement of On-track Safety. The Statement shall designate the limits of the track for which it is prepared and the date and time for which it is valid. The statement shall show the maximum authorized speed of trains within the limits for which it is prepared, and the sight distance that provides the required warning of approaching trains. The lone worker using individual train detection to establish on-track safety shall produce the Statement of On-track Safety when requested by a representative of the Federal Railroad Administrator.

Individual train detection shall not be used to provide on-track safety for a lone worker using a roadway maintenance machine, equipment, or material that cannot be readily removed by hand.

61

§ 214.337 On-Track Safety Procedures For Lone Workers.

Federal Railroad Administration

Moving America Forward

Next, FRA added a new paragraph (g) to this section in the final rule.  This new paragraph prohibits the use of ITD as an acceptable form of on-track safety for a lone worker using machinery, equipment or material that cannot be readily removed from a track by hand.  This new consensus paragraph was recommended by the Working Group, in part, to address concerns that a lone worker might not be able to remove a piece of equipment he or she is using before the arrival of an approaching train, making a track unsafe for the passage of the train.  This amendment is also intended to help ensure a lone worker does not have to struggle to remove a piece of equipment located on a track such that the lone worker is not able to remove the equipment from the track and occupy a place of safety in the time specified by existing paragraph (c)(4) of this section.  Because § 214.337 is specific to lone workers, this amendment obviously requires a lone worker to be able to remove such equipment by hand by his or herself, as, by definition, lone workers work independently from other roadway workers and are not part of a roadway work group.  

As discussed in the section-by-section analysis for § 214.329 above, FRA does not intend, and does not believe that the Working Group intended, that this provision affects the ability of a lone worker to set on a non-controlled track (e.g., setting a hi-rail vehicle on at a crossing in order to begin moving over the track under the operating rules of the railroad via § 214.301(c))  in order to travel on a track under the operating rules of the railroad, as is permitted under the existing RWP regulation.  Rather, this provision is intended to address situations where a lone worker is actually performing inspection, construction, maintenance, or repair activities at a location.   

61

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

Each railroad shall have in effect and comply with written procedures that prescribe effective requirements for audible warning by horn and/or bell for trains and locomotives approaching any roadway workers or roadway maintenance machines that are either on the track on which the movement is occurring, or about the track if the roadway workers or roadway maintenance machines are at risk of fouling the track.  At a minimum, such written procedures shall address:

Initial horn warning; 

Subsequent warning(s); and 

Alternative warnings in areas where sounding the horn adversely affects roadway workers (e.g., in tunnels and terminals).

Such audible warning shall not substitute for on-track safety procedures prescribed in this part.

62

§ 214.339 Audible Warning From Trains.

Federal Railroad Administration

Moving America Forward

In this final rule, FRA adopted amendments to the existing section governing audible warnings from trains provided to warn roadway workers of the train’s approach.  FRA adopted these amendments based on the Working Group’s recommended language that would replace the existing text of § 214.339.  There are currently four FRA Technical Bulletins, G-05-08, G-05-15, G-05-26, and G-05-27, which provide guidance to the railroad industry on the requirements of § 214.339.  As discussed further below, those technical bulletins are supplanted upon the effective date of this final rule.  The amendments to this section significantly modify existing § 214.339 in order to provide more clarity, and also provide discretion for railroads to develop audible warning procedures to address various operating situations.

It has been suggested that FRA adopt a requirement that roadway workers wear apparel compliant with the ANSI/ISEA 107-2010 (American National Standard for High Visibility Safety Apparel and Headwear).  This could be a natural element of a worker safety plan that addresses railroad struck-by hazards (alerting train crews to the presence of roadway workers on or near a track).  FRA encourages but does not mandate the use of highly visible reflective clothing and personal protective equipment to help provide clear indication to locomotive engineers and train operators that roadway workers are present in the vicinity of railroad tracks.  Also, from a safety perspective, it is FRA’s experience that virtually all roadway workers in this country already wear highly visible clothing in the performance of their duties per applicable railroad safety rules.  

Amended paragraph (a) states that each railroad shall have in effect, and comply with, written procedures which govern the audible warning to be given by trains or locomotives.  Such procedures must require an audible warning be given when approaching roadway workers or roadway maintenance machines that are either on the track on which the movement is occurring, or are about the track if at the risk of fouling.  For example, if roadway workers are engaged in work on a track adjacent to a track upon which a train is approaching, such procedures must require that an audible warning be given.  At a minimum, roadway workers engaged in work on a track adjacent to a track upon which a train is approaching are considered by FRA to be “about the track”.  

The same would apply to roadway maintenance machines that are moving or are in use on a track adjacent to an approaching locomotive.  Roadway machines might obscure the locomotive engineer’s view of roadway workers on the ground in the vicinity of a machine.  FRA considers this new section to require that if a hi-rail vehicle is on a track adjacent to the track on which a train is moving, that an audible warning must be provided.  Such warning must be provided regardless of whether it is unknown whether a roadway worker is present in the vehicle.  Again, the hi-rail might obscure the locomotive engineer’s view of a roadway worker on the ground in the vicinity of the vehicle. 

While these examples focus on roadway workers and roadway maintenance machines located on a track adjacent to the track occupied by an approaching train, it is not FRA’s intent to limit the adoption of railroad procedures which might require an audible warning be given for workers or equipment located further than the adjacent track.   

Paragraph (a) also requires the procedures adopted by a railroad address both the initial horn warning to be given, and subsequent warnings.  FRA notes that an audible warning consisting only of the locomotive horn being blown for one sequence by a train or locomotive upon the approach and passage of a large roadway work group, such as a tie and surfacing production crew that is spaced out over a long distance, would violate this section.  At a minimum in such situations, the governing procedures must require that the locomotive horn be sounded and bell be rung upon the approach of each unit  of such a work crew.  Note: on big production gangs, one might have 35 machines all spaced very closely together.  Therefore FRA defines a unit as a separate grouping of machines or equipment.

  FRA is cognizant of the sensitivity of residents who live in close proximity to railroad tracks.  As such, when maintenance equipment is obviously just being stored on siding tracks adjacent to a main track, FRA would generally not take exception to a train that does not sound its horn for equipment that is clearly not in use and without any roadway workers present. 

FRA understands that railroads do field noise complaints regarding train horns, particularly in the area of highway-rail grade crossings, and, to a lesser extent, in areas where a roadway work group might be performing its work at a particular point in time (temporary work location, versus a fixed highway-rail grade crossing location).  However, FRA emphasizes that the requirement to provide an audible warning to roadway workers of the approach of a train is a safety-critical component of the RWP regulation, providing additional notice to roadway workers that a train is approaching. Since the promulgation of the RWP regulation in 1997, railroads have been required to comply with the requirements of this section even within highway-rail grade crossing quiet zones.  This is because the audible warning is intended to provide an additional level of protection to prevent roadway workers from being struck and injured or killed by trains.  The safety-critical nature of this section necessitates the requirement that an audible warning be provided to a roadway work group.  As explained in the 1996 final rule implementing subpart C, “[t]his section is not optional for a railroad, and FRA intends that this provision covers the same subject matter as that of any state or local restrictions on the sounding of locomotive whistles.” 61 FR 65972.  Further, the amendments to this section do not change anything in regard to the regulatory expectation that the whistle must be sounded upon the approach of each unit of a work crew.  As was explained in Technical Bulletin G-05-08 issued in 2005, existing section 214.339 required that trains “ . . . approach each roadway worker or roadway work group located within a large scale maintenance project that is being conducted, the locomotive whistle shall be sounded and the locomotive bell rung.” 

Paragraph (a) also requires that the procedures adopted by a railroad address alternative warnings in areas where sounding the horn adversely affects roadway workers.  Such alternative warnings may be provided for in locations such as tunnels or passenger terminals, where a train horn could create a hearing hazard for roadway workers and other people.  Alternative warning procedures could also be implemented in yards, where a locomotive might frequently pass roadway workers due to the back and forth movement cycles that are common in switching and classification operations.  The frequent sounding of horns in such situations can defeat the effectiveness of the warning.  

Amended paragraph (b) reiterates an existing requirement of § 214.339, and states that required audible warnings cannot substitute for on-track safety procedures prescribed in part 214.  The on-track safety must be one of the forms of protection prescribed by the RWP regulation.  The audible warning requirement is intended to provide an additional measure of safety in the event that roadway workers might be fouling the track upon which a train or locomotive is approaching.

In the past FRA has received inquiries regarding audible warnings during shoving movements, and also regarding multiple-unit (MU) passenger train equipment not equipped with a bell.  With regard to MU equipment not equipped with a bell, FRA Technical Bulletin G-05-26 stated that such equipment would still be in compliance with existing § 214.339 so long as the horn was sounded to provide an audible warning when necessary.  The amendments to § 214.339 adopted in this final rule are consistent with the guidance in Technical Bulletin G-05-26, and this technical bulletin will be supplanted upon the effective date of this final rule.  With regard to audible warnings during shoving movements, the requirement to provide an audible warning is predicated on the locomotive engineer or train operator being able to see roadway workers ahead of his or her movement.  Therefore, if a locomotive engineer does not have the capability to see roadway workers ahead of his or her movement (e.g., a significant number of cars ahead of the locomotive), and does not sound the horn, the engineer would not be considered to be in violation of this section.  However, with increased remote control operations in the railroad industry, in which a large percentage of moves are considered shoving movements, railroads need to address remote control operations with respect to this section in their adopted procedures.   

FRA Technical Bulletins G-05-08, G-05-15 and G-05-27 will be supplanted upon the effective date of this final rule.  Technical Bulletins G-05-08 and G-05-15 addressed audible warnings over a large work area and duration of warnings, respectively, while G-05-27 addressed when an audible warning was required. Consistent with this final rule, G-05-27 explained that trains must provide an audible warning to any roadway worker near enough to the track to have the potential to foul the track prior to the arrival of the train (“about the track”).  The amendments to this section require that a railroad’s procedures prescribe when an audible warning is required when roadway workers or roadway maintenance machines are on or about tracks, and also requires that such procedures address both initial and subsequent warnings.  

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Each employer shall include in its on-track safety program specific provisions for the safety of roadway workers who operate or work near roadway maintenance machines. Those provisions shall address:

Training and qualification of operators of roadway maintenance machines.

Establishment and issuance of safety procedures both for general application and for specific types of machines.

Communication between machine operators and roadway workers assigned to work near or on roadway maintenance machines.

Spacing between machines to prevent collisions.

Space between machines and roadway workers to prevent personal injury.

Maximum working and travel speeds for machines dependent upon weather, visibility, and stopping capabilities.

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§ 214.341 Roadway Maintenance Machines.

Federal Railroad Administration

Moving America Forward

 No changes were made in the final rule to § 214.341(a).

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Instructions for the safe operation of each roadway machine shall be provided and maintained with each machine large enough to carry the instruction document.

No roadway worker shall operate a roadway maintenance machine without having been trained in accordance with §214.355.  

No roadway worker shall operate a roadway maintenance machine without having complete knowledge of the safety instructions applicable to that machine.  For purposes of this paragraph, the safety instructions applicable to that machine means:

The manufacturer’s instruction manual for that machine; or 

The safety instructions developed to replace the manufacturer’s safety instructions when the machine has been adapted for a specific railroad use. Such instructions shall address all aspects of the safe operation of the crane and shall be as comprehensive as the manufacturer’s safety instructions they replace.

Note: Revisions to this section noted in red are reflective of Part 243 effective January 1, 2015 and not contained in the Revision to RWP Rule.

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§ 214.341 Roadway Maintenance Machines.

Federal Railroad Administration

Moving America Forward

FRA is amending paragraph (b)(2) to address two issues. First, FRA is removing the requirement that the operator of a roadway maintenance machine have “complete” knowledge of the safety instructions applicable to that machine. Based on feedback received from the regulated community, FRA has been informed that requiring that the knowledge be “complete” suggests that a roadway worker operator have instant recall of every instruction contained in the manual. This reading of the rule is not FRA's intention. FRA intends each operator to have sufficient knowledge of the safety instructions so that the operator would be able to safely operate the machine without reference to the manual under routine conditions, and know where in the manual to look for guidance when operation of the machine is not routine.

The second change to paragraph (b)(2) addresses what is meant by “knowledge of the safety instructions applicable to that machine.” FRA's intent is that this term means the manufacturer's instruction manual for that machine. However, it has come to FRA's attention that some portion(s) of a manufacturer's instruction manual may not be applicable to a particular machine if the machine has been adapted for a specific railroad use. In that case, FRA requires that the employer have a duty to ensure that such instructions be amended or supplemented so that they shall address all aspects of the safe operation of the crane and be as comprehensive as the manufacturer's safety instructions they replace. The purpose of this requirement is to ensure that the safety instructions provided address all known safety concerns related to the operation of the machine. If some type of functionality is added to the machine through adaption, the safety instructions would need to address the known safety concerns and proper operation of that additional function. On the other hand, if the adaption removes an operational functionality, the safety instructions would no longer need to address the function that was removed, although it could be possible that the removal of a device could create other safety hazards that may need to be addressed in the safety instructions in order to be considered comprehensive. In order to ensure that the safety instructions for a machine are comprehensive, some employers may choose to provide a completely new safety instruction manual for adapted equipment; however, other employers may choose to simply void certain pages or chapters of the manufacturer's manual, and provide a supplemental manual to address the safety instructions related to the adapted functions of the equipment.

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Components of roadway maintenance machines shall be kept clear of trains passing on adjacent tracks. Where operating conditions permit roadway maintenance machines to be less than four feet from the rail of an adjacent track, the on-track safety program of the railroad shall include the procedural instructions necessary to provide adequate clearance between the machine and passing trains.

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§ 214.341 Roadway Maintenance Machines.

Federal Railroad Administration

Moving America Forward

  No changes were made in the final rule to § 214.341(c).

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No employer shall assign an employee to perform the duties of a roadway worker, and no employee shall accept such assignment, unless that employee has received training in the on-track safety procedures associated with the assignment to be performed, and that employee has demonstrated the ability to fulfill the responsibilities for on-track safety that are required of an individual roadway worker performing that assignment.

Each employer shall provide to all roadway workers in its employ initial or recurrent training once every calendar year on the on-track safety rules and procedures that they are required to follow.

Except as provided for in § 214.353, railroad employees other than roadway workers, who are associated with on-track safety procedures, and whose primary duties are concerned with the movement and protection of trains, shall be trained to perform their functions related to on-track safety through the training and qualification procedures prescribed by the operating railroad for the primary position of the employee, including maintenance of records and frequency of training.

Each employer of roadway workers shall maintain written or electronic records of each roadway worker qualification in effect. Each record shall include the name of the employee, the type of qualification made, and the most recent date of qualification. These records shall be kept available for inspection and photocopying by the Federal Railroad Administrator during regular business hours.

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§ 214.343 Training And Qualifications, General.

Federal Railroad Administration

Moving America Forward

Existing § 214.343 sets forth the general training and qualification requirements for roadway workers.  Specifically, paragraphs (a), (b), and (d) of this section prohibit an employer from assigning an employee the duties of a roadway worker (and prohibits an employee from accepting such an assignment), until that employee has received training in the on-track safety procedures associated with the assignment, and also require that roadway workers receive initial and recurrent training once every calendar year on the on-track safety rules and procedures they are required to follow, and requires employers of roadway workers to maintain records of each roadway worker qualification in effect.  

Paragraph (c) of existing § 214.343 requires that railroad employees other than roadway workers who are associated with on-track safety procedures, and whose primary duties involve the movement and protection of trains, be trained “to perform their functions related to on-track safety through the training and qualification procedures prescribed by the operating railroad for the primary position of the employee.  FRA has adopted one amendment to this existing section.  The words “[e]xcept as provided for in § 214.353 . . . .” to the beginning of paragraph (c)  have been adopted in the final rule..  This change reflects FRA amendment of the existing rule text of § 214.353 to also expressly govern, in certain respects, the training of employees other than “roadway workers” (typically transportation employees such as conductors) who act as roadway workers in charge.  FRA’s explanation of this change is contained in the section-by-section analysis for § 214.353 below.  

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Consistent with § 214.343(b), the training of all roadway workers shall include, as a minimum, the following:

Recognition of railroad tracks and understanding of the space around them within which on-track safety is required.

The functions and responsibilities of various persons involved with on-track safety procedures.

Proper compliance with on-track safety instructions given by persons performing or responsible for on-track safety functions.

Signals given by watchmen/lookouts, and the proper procedures upon receiving a train approach warning from a lookout.

The hazards associated with working on or near railroad tracks, including review of on-track safety rules and procedures.

Instruction on railroad safety rules adopted to comply with § 214.317(b). 

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§ 214.345 Training For All Roadway Workers.

Federal Railroad Administration

Moving America Forward

 Existing § 214.345 sets forth the minimum content of training provided to roadway workers in accordance with part 214.  As recommended by the Working Group, FRA amended this section in the final rule by adding the words “[c]onsistent with § 214.343(b)” to the beginning of the first sentence of the existing introductory paragraph of that section.  This amendment was proposed for clarity, to reinforce that the existing RWP regulation requires that each roadway worker must be trained, at a minimum, on the items listed in this section both initially and once every calendar year.  FRA also notes that per existing § 214.343(b), roadway workers must also be trained once every calendar year on the on-track safety rules and procedures they are required to follow.  Existing FRA Technical Bulletin G-05-16 previously provided guidance on these existing requirements, and is supplanted upon the effective date of this final rule.  

FRA also amended this section by adding a new paragraph (f).  As discussed above in the section-by-section analysis for proposed § 214.317(b), the Working Group recommended a consensus requirement that all roadway worker training include instruction on an employer’s procedures governing the determination of whether it is safe to walk across railroad tracks.  FRA removed that consensus item from § 214.317(b), and inserted it into this section with the other existing roadway worker training requirements, where it is more appropriately located.  Fatalities have occurred when roadway workers walked across tracks (e.g., when crossing tracks to retrieve a tool or to reach a work area) and were struck by rolling equipment, and this consensus recommendation is intended to help prevent similar incidents from occurring in the future.  

Regarding the requirement that training be conducted annually for roadway workers, FRA wishes to provide specific clarification.  Since subpart C took effect in 1997, it has required that roadway workers receive annual training on the on-track safety procedures that they are required to follow.  See 49 CFR 214.343(b).   This includes annual training for additional roadway worker qualifications, such as lone worker, watchman/lookout, flagman, and roadway worker in charge qualifications for the roadway workers that occupy those positions.  The regulatory impact analysis for the 1996 final rule accounted for costs for annual training for all roadway workers, reflecting that all training for these additional positions must be provided annually.  Also, FRA Technical Bulletin G-05-16, issued in 2005, explained that the required time frame for the unspecified “periodic” qualification requirement for the additional roadway worker qualifications was separate from the annual training requirement.  The existing definition of the term “watchmen/lookout” (prior to this final rule) at § 214.7 also states that the term means an employee who has been “. . . .annually trained and qualified to provide warning to roadway workers of approaching trains or on-track equipment.”

Annual training for all roadway worker positions was also estimated in the Paperwork Reduction Act information collection requirements estimate provided by the FRA in the NPRM. 77 FR 50361.  FRA cautions railroads not to mix periodic “qualification” of roadway workers with the existing annual training requirement of roadway workers.  See 77 FR 50330.  The annual training requirement is unchanged by this final rule and is still required by existing subpart C. 

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Each lone worker shall be trained and qualified by the employer to establish on-track safety in accordance with the requirements of this section, and must be authorized to do so by the railroad that conducts train operations on those tracks.

The training and qualification for lone workers shall include, as a minimum, consideration of the following factors:

Detection of approaching trains and prompt movement to a place of safety upon their approach.

Determination of the distance along the track at which trains must be visible in order to provide the prescribed warning time.

Rules and procedures prescribed by the railroad for individual train detection, establishment of working limits, and definite train location.

On-track safety procedures to be used in the territory on which the employee is to be qualified and permitted to work alone.  

Alternative means to access the information in a railroad’s on-track safety manual when a lone worker’s duties make it impracticable for the on-track safety manual to be readily available. 

Initial and periodic (as specified by § 243.201 of this chapter) qualification of a lone worker shall be evidenced by demonstrated proficiency.  

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§ 214.347 Training & Qualification For Lone Workers.

Federal Railroad Administration

Moving America Forward

Section 214.347 sets forth the training and qualification requirements applicable to lone workers.  First, as discussed above, the Working Group’s consensus recommendation for the proposed amendments to § 214.309 contained a requirement that lone workers receive instruction on the alternative means to access the information in a railroad’s on-track safety manual when his or her duties make it impracticable to carry the manual.  FRA removed that consensus recommendation from § 214.309 and adopted that provision in this section with the other existing lone worker training requirements, where FRA believes it is more appropriately located.  The alternate means to access the information by a lone worker could include the use of a phone or radio for the lone worker to contact an employee who has the contents of the on-track safety manual readily accessible.  This provision would require an employer to train lone workers on the alternative means of access that the employer adopts.  

Next, annual training for roadway workers is already required via subpart C, and existing § 214.347(b) specifies that “[i]nitial and periodic qualification of a watchman/lookout shall be evidenced by demonstrated proficiency.”  As discussed by FRA Technical Bulletin G-05-16, the term "periodic qualification" applies across all of the additional roadway worker qualification section to employees who perform the specific duties of lone workers, watchman/lookouts (§ 214.349), flagmen (§ 214.351), roadway workers in charge (§ 214.353) and roadway maintenance machine operators (§ 214.355).   However, “periodic” is not defined in subpart C.  Since implementation of the RWP regulation in 1997, the time interval for “periodic” qualification has been left to railroad’s discretion.  FRA Technical Bulletin G-05-16 explained such, and suggested that each railroad should specify in its on-track safety program the interval at which their “periodic” qualification would take place. 

The Working Group addressed this issue regarding the time interval permissible to accomplish “periodic” qualification. The Working Group recommended consensus amendments that would have expressly required recurrent qualification every 24-months and recurrent lone worker training every calendar year.  As discussed in the NPRM, however, in the time period that has passed since the Working Group proposed consensus text for this section, passage of passage of the Rail Safety Improvement Act of 2008 (Pub. L. 110–432, Division A, 122 Stat. 4848) (RSIA), has required significant new FRA regulatory efforts. 

These new efforts include FRA’s recently published final rule addressing minimum training standards and plans.  Section 401 of RSIA (codified at 49 U.S.C. 20162) mandated that FRA promulgate a regulation that sets minimum training standards for ‘‘each class and craft of safety-related railroad employee.’’ FRA undertook that mandated rulemaking via the RSAC process (Task No. 10–01, Training Standards Working Group). The training standards final rule was published on November 7, 2014, (79 FR 66460), and includes minimum training standards for roadway workers as defined by existing § 214.7.

The training standards final rule contains an extensive refresher qualification requirements for roadway workers.  The consensus recommendation of the RSAC do not parallel the refresher qualification requirements in the statutorily mandated training standards rulemaking. 

FRA has not amended the annual training requirements in this final rule that currently exist in subpart C.  FRA’s intent in this rulemaking was not to lessen the amount of training that roadway workers receive via existing requirements, and believes it prudent to stand by the existing annual training requirement.  This approach will not result in any additional costs as annual training for roadway workers is an existing requirement in part 214.  

However, with regard to the previously unspecified “periodic” qualification requirement contained in § 214.347 (and also in the accompanying sections addressing the requirements for watchmen/lookouts, flagmen, roadway workers in charge, and roadway maintenance machine operators), the recent training standards rulemaking requirement in part 243 of this subchapter will control.  That rulemaking addresses qualification requirements for safety-related employees across the spectrum of railroad crafts, to include for roadway workers, and was the result of an RSAC-process that resulted in consensus recommendations.  That rulemaking specifies that qualification must occur not less than every three calendar years.  Further, that rulemaking has already accounted for the costs of qualification of safety-related employees to occur on a three calendar-year interval (at a minimum).   

FRA would obviously encourage a railroad to choose to conduct refresher qualifications more often than once every three calendar years as is required by new part 243.  There is not clear evidence to support a more frequent qualification requirement (on a cost-benefit analysis basis) versus for other safety-related employees who have critical safety roles, such as locomotive engineers, especially in light of the fact that roadway workers already will continue to be required to be trained more frequently (annually) than other safety-related employees under applicable regulations.  Further, from a safety and practical perspective, FRA believes that existing § 217.9 of the Federal railroad safety regulations (requiring operational testing of roadway workers subject to a railroad’s operating rules) already provides for what is typically a much more frequent opportunity for observations by railroad officials to determine employee proficiency with rules compliance than does either a two- or three-year required interval for determining qualification via demonstrated proficiency.

FRA understands that many of the requirements in new part 243 will not take effect for a number of years, depending on a railroad’s total employee work hours.  See 49 CFR § 243.101(a).  In the interim, while FRA encourages railroads to comply with new part 243’s requirements as soon as possible, each railroad should continue to specify in its on-track safety program the interval at which their “periodic” qualification will take place, as was explained in FRA Technical Bulletin G-05-16.  Upon the effective applicability date of part 243’s requirements for a particular railroad, that railroad will then be required to comply with part 243’s qualification requirements at a minimum of every three calendar years.  

As explained in the 1996 RWP final rule, in order to demonstrate proficiency as required, the roadway worker (who is qualified for any additional roadway worker qualification under §§ 214.347, .349, .351, 353, or .355) must,  “. . . show to the employer sufficient understanding of the subject that the employee can perform the duties for which qualification is conferred in a safe manner.  Proficiency may be demonstrated by successful completion of a written or oral examination, an interactive training program using a computer, a practical demonstration of understanding and ability, or an appropriate combination of these . . .”  61 FR 65972.  

FRA replace the words in paragraph (a)(5) “...to carry the manual” with the words “...for the on-track safety manual to be readily available.”  This comment is consistent with § 214.309 regarding the on-track safety manual, and reflects that that section does not require a lone worker or roadway worker in charge to literally “carry” the on-track safety manual on their person at all times.   Rather, § 214.309 requires that the on-track safety manual be readily available to all roadway workers, including lone workers.  It is often impracticable for a lone worker, who may have to walk to conduct a track inspection or carry tools, to have the on-track safety manual physically on their person.  

Last, FRA is not requiring a physical characteristics qualification for lone workers in this final rule.

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The training and qualification for roadway workers assigned the duties of watchmen/lookouts shall include, as a minimum, consideration of the following factors:

Detection and recognition of approaching trains.

Effective warning of roadway workers of the approach of trains.

Determination of the distance along the track at which trains must be visible in order to provide the prescribed warning time.

Rules and procedures of the railroad to be used for train approach warning.

Initial and periodic (as specified by § 243.201 of this chapter) qualification of a watchman/lookout shall be evidenced by demonstrated proficiency.  

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§ 214.349 Training & Qualification Of Watchmen/Lookouts.

Federal Railroad Administration

Moving America Forward

Section 214.349 sets forth the training and qualification requirements applicable to watchmen/lookouts. With regard to the appropriate time interval in for “periodic” qualification required by existing paragraph (b) of this section in this final rule, the Working Group recommended consensus amendments that would have expressly required recurrent qualification every 24-months for watchmen/lookouts.  As discussed in the in the preamble for § 214.347, however, the consensus recommendation of the RSAC does not parallel the refresher training and qualification requirements in the statutorily mandated training standards rulemaking (three-year interval).

FRA has determined for the reasons also explained in that discussion above, the recent training standards rulemaking requirement in part 243 of this subchapter will control.  For purposes of § 214.349(b), “periodic” is as described by § 243.201 of the training standards regulation, which requires recurrent qualification every three years.  FRA did not adopt in the final rule to require a physical characteristics qualification for watchmen/lookouts.  

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The training and qualification for roadway workers assigned the duties of flagmen shall include, as a minimum, the content and application of the operating rules of the railroad pertaining to giving proper stop signals to trains and holding trains clear of working limits.

Initial and periodic (as specified by § 243.201 of this chapter) qualification of a flagman shall be evidenced by demonstrated proficiency.  

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§ 214.351 Training & Qualification Of Flagmen.

Federal Railroad Administration

Moving America Forward

Section 214.351 sets forth the training and qualification requirements applicable to flagmen. With regard to the appropriate time interval in for “periodic” qualification required by existing paragraph (b) of this section in this final rule, the Working Group recommended consensus amendments that would have expressly required recurrent qualification every 24-months for flagmen.  As discussed in the in the preamble for § 214.347, however, the consensus recommendation of the RSAC does not parallel the refresher training and qualification requirements in the statutorily mandated training standards rulemaking (three-year interval).

FRA has determined for the reasons also explained in that discussion above, the recent training standards rulemaking requirement in part 243 of this subchapter will control.  For purposes of § 214.351(b), “periodic” is as described by § 243.201 of the training standards regulation, which requires recurrent qualification every three years.  

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The training and qualification of each roadway workers in charge, or any other employee acting as a roadway worker in charge (e.g., a conductor or a brakeman), who provides for the on-track safety of groups of roadway workers through establishment of working limits or the assignment and supervision of watchmen/lookouts or flagmen shall include, as a minimum:

All the on-track safety training and qualification required of the roadway workers to be supervised and protected, including the railroad’s procedures governing good faith challenges in §§ 214.311(b)-(c) and 214.313(d).

The content and application of the operating rules of the railroad pertaining to the establishment of working limits.

The content and application of the rules of the railroad pertaining to the establishment or train approach warning.

The relevant physical characteristics of the territory of the railroad upon which the roadway worker is qualified.

 The procedures required to ensure that the roadway worker in charge of the on-track safety of group(s) of roadway workers remains immediately accessible and available to all roadway workers being protected under the working limits or other provisions of on-track safety established by the roadway worker in charge.

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§ 214.353 Training And Qualification Of Each Roadway Workers In Charge Who Provide On-Track Safety For Roadway Work Groups.

Federal Railroad Administration

Moving America Forward

In the final rule, FRA made several changes to this existing section, including both recommended consensus items and non-consensus amendments.  First, FRA changed the title of this section to “[t]raining and qualification of each roadway worker in charge.”  This proposal was to reflect FRA’s intent to adopt the new term “roadway worker in charge” in part 214, and was in accordance with the proposals to use that new term to replace the varying generic references to that position that appear throughout the existing RWP regulation..   

FRA modified an additional amendment to existing paragraph (a) of this section.  FRA proposed that paragraph (a) would specifically require that any employee “...acting as a roadway worker in charge (e.g., a conductor or a brakemen), who provides for the on-track safety of roadway workers through the establishment of working limits or the assignment and supervision of watchmen/lookouts or flagmen . . .” must be trained and qualified in accordance with § 214.353.   A reference to this amendment was also inserted into § 214.343(c), as discussed above.  This amendment is intended to address situations where employees other than roadway workers act as roadway workers in charge. 	

As background, § 214.343(c) states that railroad employees other than roadway workers (often conductors or brakemen) “who are associated with on-track safety procedures, and whose primary duties are concerned with the movement and protection of trains, shall be trained to perform their functions related to on-track safety through the training and qualification procedures prescribed by the operating rules for the primary position of the employee.”  This means that when a non-roadway worker employee (such as a conductor) is involved in providing for the on-track safety of a roadway work group (such as by serving as a flagmen for a roadway work group), that the non-roadway worker employee does not necessarily have to receive training to perform such task in accordance with the existing RWP regulation training section, but rather may receive the relevant training to be able to proficiently perform such function via his or her railroad’s conductor training procedures.  FRA Technical Bulletin G-05-18 discussed § 214.343(c), and explained that the interval of such training may be permitted to occur on an alternate basis from that required for a roadway worker in the RWP regulation (according to a railroad’s training frequency procedures prescribed for a conductor in the above example, rather than for a roadway worker).  

FRA Technical Bulletin G-05-04 provided guidance regarding the use of employees other than roadway workers who act as roadway workers in charge.  That bulletin explained that when transportation employees, such as conductors, are assigned to provide on-track safety for roadway workers, that those employees must have received the relevant training to assume those responsibilities.  The role of a roadway worker in charge is a critical one, as a roadway worker in charge is responsible for establishing and maintaining the appropriate form of on-track safety upon which the safety of an entire roadway work group often depends.  

Roadway workers in charge must also be capable of conducting the on-track safety job briefings required by the RWP regulation, of handling a good faith challenge that may arise at a work site, and of locating relevant guidance in an on-track safety manual.  In addition, with the recent publication of the adjacent track rulemaking discussed above, a roadway worker in charge must also know when adjacent track on-track safety is required on an adjacent controlled track.  Simply, Technical Bulletin G-05-04 explained that any employee acting in the role of a roadway worker in charge must be trained as such.  

Under the existing RWP regulation, a conductor (or other employee) acting as a roadway worker in charge is required to be trained on the same items as a traditional roadway worker in charge.  However, existing § 214.353 only currently governs training and qualification requirements for “roadway workers” who provide for the establishment of on-track safety for roadway work groups.  While by its terms existing § 214.343(c) requires non-maintenance of way employees to still be trained and qualified to perform their functions related to on-track safety, FRA proposed to expressly state such with regard to roadway worker in charge duties in the final rule.  This amendment expressly states that roadway workers, or any other employee acting in the role of a roadway worker in charge, have to be trained and qualified in accordance with §214.353. 

FRA does not necessarily believe this to be a substantive amendment, because the universe of conductors or other employees who might perform true “roadway worker in charge” duties is small (versus flagman or other roadway worker duties).  This amendment is to reflect that the role of a roadway worker in charge is much different than that implicated by other levels of roadway worker qualification, due to both the many responsibilities involved and safety critical role such employees play.

This amendment, however, still permits a conductor to receive training relevant to fulfilling the requirements to act as a roadway worker in charge “through the training and qualification procedures prescribed by the operating railroad for the primary position of the employee.”  See § 214.343(c).  The only differences between FRA’s amendment to paragraph (a) and existing § 214.343(c) relate to the requirement for a recorded examination for a roadway worker in charge and to the frequency of training required, which is annually.  By expressly including employees other than roadway workers who act as roadway workers in charge under § 214.353, a recorded examination is required to evidence such employee’s qualification.  FRA notes that such a recorded examination might likely also already be required under a railroad’s training program.   

Next, FRA addresses what has been referred to as the bifurcation, or the splitting, of certain roadway worker in charge duties.  FRA refers to scenarios where a roadway worker in charge may not be qualified on the physical characteristics of a territory, and a conductor who is qualified on the physical characteristics is assigned to serve as a pilot for the roadway worker in charge (analogous to a locomotive engineer being unfamiliar with the physical characteristics who is provided a pilot in accordance with § 240.231).  While this situation is not currently addressed by the RWP regulation, Technical Bulletin G-05-04 notes that FRA does currently object to the splitting of on-track safety qualification elements, and provided the example of a conductor obtaining an exclusive track occupancy work permit (authority) for a roadway work group while a roadway worker fulfilled the other duties of a roadway worker in charge, such as performing the on-track safety job briefing.  

After evaluating this issue, FRA is taking the position that bifurcation of roadway worker in charge duties is permissible under the two scenarios (physical characteristics and obtaining track authority). FRA recognizes that when roadway work groups perform system-wide work on a large railroad, that it may not be possible for each roadway worker who is qualified as a roadway worker in charge to be qualified on the physical characteristics of each territory on which the group performs work.  Thus, as similarly recognized by FRA in parts 240 and 242 (FRA’s Conductor Certification regulation, promulgated via a final rule published on November 9, 2011 (76 FR 69802)), the use of employees who are qualified on the physical characteristics of a territory is often necessary in order to efficiently conduct railroad operations, and the use of pilots is recognized to be an acceptably safe practice in the industry (the use of pilots in the industry pre-dates the Federal regulations on the subject).  Further, under the guidance in existing Technical Bulletin G-05-04, FRA currently permits one employee to obtain a track permit for another employee who is acting as the roadway worker in charge.  FRA can envision certain operating situations where the ability to have another employee obtain authority on behalf of a roadway worker in charge is desirable and necessary.  For example, in the case of a large system gang, a local track inspector may obtain authority from the dispatcher for the system gang’s roadway worker in charge.  As such, FRA will continue to permit this practice.     

As discussed in Technical Bulletin G-05-04, FRA also does not take exception to providing a “limited” qualification for a roadway worker in charge who would only perform such duties in certain situations.  For example, a roadway worker in charge who was performing such duties on a railroad consisting entirely of non-controlled track would be permitted to have a limited qualification which would only involve the roadway worker in charge’s being trained and qualified to establish working limits via the inaccessible track procedures (in addition to being trained on all other §§ 214.343, 214.345, and 214.353 requirements).  However, FRA would take exception to a limited roadway worker in charge qualification where work was being performed on controlled track and where such limited qualification did not include the ability to use all of a railroad’s controlled track working limits procedures.  For example, limiting qualification to use of foul time only, when exclusive track occupancy is also an integral part of a railroads’ on-track safety program, would not be permissible .  Upon the effective date of this final rule, Technical Bulletins G-05-04 and G-05-18 are supplanted. 

FRA added in the final rule a new sentence to existing paragraph (a)(1) requiring the roadway workers in charge be trained on the content and application of the railroad rules governing the resolution of good faith challenges.  Regardless of class or craft, roadway workers in charge must understand the good faith challenge procedures and their responsibility to promptly and equitably resolve good faith challenges.  FRA believes such training is already covered by existing §§ 214.343(b) & 214.353(a)(1).  For example, via existing §§ 213.311-313, good faith challenges may be raised by roadway workers and must be promptly and equitably resolved when raised.  Under those sections, railroads must adopt procedures to address such good faith challenges.  With regard to those required procedures, § 214.343(b) requires recurrent training every calendar year for the on-track safety rules and procedures each roadway worker is required to follow.  As such, FRA believes the good faith challenge procedures are already required training topics for roadway workers.  

However, FRA believes that special emphasis should be placed on the good faith challenge procedures in 214.353.  The roadway worker in charge is most often the person situated to address and resolve such challenges raised by roadway workers.  Technical Bulletin G-05-04 has long specified that the person acting as roadway workers in charge must be qualified on good faith challenge procedures, but the text of part 214 does not expressly state such.  FRA believes it prudent to also expressly include good faith challenger procedures as a required training and qualification item that is specifically mentioned in § 214.353(a)(1) of this section.  FRA has added the words “including the railroad’s procedures governing good faith challenges in §§ 214.311(b)-(c) and 214.313(d) of this subpart” to existing paragraph (a)(1).  While another railroad employee or supervisor other than a roadway worker in charge may ultimately resolve a roadway worker’s good faith challenge to the on-track safety provided, FRA believes the roadway worker in charge must at least know what the railroad’s procedures are that govern the handling such challenge in the event a challenge is raised.  

FRA also added a new paragraph (a)(5) to this section.  Paragraph (a)(5) was a Working Group consensus recommendation that requires roadway workers in charge to be trained on procedures ensuring they remain immediately accessible to the roadway workers being protected by the on-track safety they are responsible for establishing.  This paragraph parallels the new requirement in § 214.315(a)(5) that the on-track safety job briefing given by a roadway worker in charge to a roadway worker include information on the accessibility of the roadway worker in charge, and on alternate procedures in the event the roadway worker in charge is no longer accessible to members of the roadway work group.

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Initial and periodic (as specified by § 243.201 of this chapter) qualification of a roadway worker in charge to provide on track safety for groups shall be evidenced by a recorded examination demonstrated proficiency.  

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§ 214.353 Training And Qualification Of Each Roadway Workers In Charge Who Provide On-Track Safety For Roadway Work Groups.

Federal Railroad Administration

Moving America Forward

Last, with regard to the frequency of training and qualification for roadway workers in charge, FRA has chosen to proceed in the same manner as discussed above and below for to §§ 214.347 through 214.355.  While annual training for roadway workers in charge will still be required as it is under the existing regulation, in the NPRM FRA requested comment on how best to proceed regarding the appropriate time interval in for “periodic” qualification required by existing paragraph (b) of this section in this final rule.  The Working Group recommended consensus amendments that would have expressly required recurrent qualification every 24-months for roadway workers in charge.  However, the consensus recommendation of the RSAC does not parallel the refresher qualification requirements in the statutorily mandated training standards rulemaking (three-year interval).

The recent training standards rulemaking requirement in part 243 of this subchapter will control.  For purposes of § 214.353(b), “periodic” is as described by § 243.201 of the training standards regulation, which requires recurrent qualification every three calendar years.    FRA notes that employees of some smaller railroads may perform work in a variety of crafts.  An employee may perform track maintenance work as a “roadway worker” one day, while then working as a certified locomotive engineer the next day.  FRA is not attempting to describe such a situation in this section, but rather is referring to situations where dedicated transportation employees do not actually perform “roadway worker” duties, but are called on to provide on-track safety for a roadway work group.  

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The training and qualification of roadway workers who operate roadway maintenance machines shall include, as a minimum:

Procedures to prevent a person from being struck by the machine when the machine is in motion or operation.

Procedures to prevent any part of the machine from being struck by a train or other equipment on another track.

Procedures to provide for stopping the machine short of other machines or obstructions on the track.

Methods to determine safe operating procedures for each machine that the operator is expected to operate.

Initial and periodic (as specified by § 243.201 of this chapter) qualification of a roadway worker to operate roadway maintenance machines shall be evidenced by demonstrated proficiency. 

§ 214.355 Training And Qualification Of Each Roadway Worker In On-Track Safety For Operators Of Roadway Maintenance Machines.

Moving America Forward

Section 214.355 sets forth the on-track safety training and qualification requirements for roadway maintenance machine operators.  The Working Group recommended consensus amendments that would have expressly required recurrent qualification every 24-months for roadway maintenance machine operators.  As discussed in the preamble above for § 214.347, however, the consensus recommendation of the RSAC does not parallel the refresher qualification requirements in the statutorily mandated training standards rulemaking (minimum three calendar year interval).

For the reasons also explained in previous training sections, the recent training standards rulemaking requirement in § 243.205 of this subchapter will control.  For purposes of § 214.355(b), “periodic” is as described by § 243.201 of the training standards regulation, which requires recurrent qualification at a minimum of every three calendar years.

FRA notes that the training standards rulemaking included a provision addressing the training and qualification for operators of roadway maintenance machines equipped with a crane.  79 FR 66501.  Those requirements compose a new § 214.357 of the RWP regulation.  FRA directs the public to that rulemakings section-by-section analysis for an explanation of that new section’s requirements.  Id. at 66474-76.     

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Note: This section noted in red below is reflective of Part 243 effective January 1, 2015 and not contained in the Revision to RWP Rule.

In addition to the general training and qualification requirements for operators of roadway maintenance machines set forth in §§ 214.341 and 214.355 of this subpart, each employer shall adopt and comply with a training and qualification program for operators of roadway maintenance machines equipped with a crane to ensure the safe operation of such machines.   

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§ 214.357 Training And Qualification For Operators Of Roadway Maintenance Machines Equipped With A Crane.

Federal Railroad Administration

Moving America Forward

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As mentioned previously, FRA is amending this section in order to ensure that each railroad or contractor (or subcontractor) to a railroad ensures that operators of roadway maintenance machines equipped with a crane are adequately trained to ensure their vehicles are safely operated. The training requirements are intended to address both safe movement of the vehicles and safe operation of the cranes. Once this rule is effective, FRA regulations would apply to operators of roadway maintenance machines equipped with a crane, rather than OSHA's regulation related to crane operator qualification and certification found at 29 CFR 1926.1427

Paragraph (a) clarifies that this section requires new training requirements in addition to the existing requirements already contained in this subpart. Paragraph (a) also includes a requirement that each employer adopt and comply with a training and qualification program for operators of roadway maintenance machines equipped with a crane to ensure the safe operation of such machines. The requirement in paragraph (a) to “adopt” and “comply” with a training and qualification program may seem redundant; however, the use of these terms together are intended to remind each employer that it will need to both “adopt” such a program and “comply” with its own program. Failure to adopt or comply with a program required by this section will be considered a failure to comply with this section.

Each employer’s training and qualification program for operators of roadway maintenance machines equipped with a crane shall require initial and periodic qualification of each operator of a roadway maintenance machine equipped with a crane and shall include:

Procedures for determining that the operator has the skills to safely operate each machine the person is authorized to operate; and

Procedures for determining that the operator has the knowledge to safely operate each machine the person is authorized to operate. Such procedures shall determine that either:

The operator has knowledge of the safety instructions (i.e., the manufacturer’s instruction manual) applicable to that machine; or 

The operator has knowledge of the safety instructions developed to replace the manufacturer’s safety instructions when the machine has been adapted for a specific railroad use. Such instructions shall address all aspects of the safe operation of the crane and shall be as comprehensive as the manufacturer’s safety instructions they replace.

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§ 214.357 Training And Qualification For Operators Of Roadway Maintenance Machines Equipped With A Crane.

Federal Railroad Administration

Moving America Forward

Paragraph (b) requires that each employer's training and qualification program address initial and periodic qualification for each operator of a roadway maintenance machine equipped with a crane. Both initial training and periodic refresher training must, at a minimum, include certain procedures for addressing critical safety areas. Paragraph (b)(1) requires that each employer develop procedures for determining that the operator has the skills to safely operate each machine the person is authorized to operate. FRA would expect that those procedures would include demonstrated proficiency as observed by a qualified instructor or supervisor. Paragraph (b)(2) requires that each employer develop procedures for determining that the operator has the knowledge to safely operate each machine the person is authorized to operate. As explained in the analysis of the amendments to § 214.341(b)(2), an operator must have knowledge of the safety instructions applicable to that machine, regardless of whether the machine has been adapted for a particular railroad use.  Implicit in this rule is the requirement that the employer must supply the safety instructions for the crane. If the crane has been adapted for a specific use, the employer must ensure that the safety instructions are also adapted. FRA would expect the employer to employ or contract out for a qualified person to adapt the safety instructions, but in any case the employer is responsible for ensuring that the instructions address all aspects of the safe operation of the crane. When equipment has been adapted, the employer has a duty to provide revised safety instructions that comprehensively address each adapted feature as well as any feature supplied by the manufacturer that was not removed during the adaptation.

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Each employer shall maintain records that form the basis of the training and qualification determinations of each operator of roadway maintenance machines equipped with a crane that it employs.

Availability of records: Each employer required to maintain records under this part shall make all records available for inspection and copying/photocopying to representatives of FRA, upon request during normal business hours.

(e) Training conducted by an employer in accordance with operator qualification and certification required by the Department of Labor (29 CFR 1926.1427) may be used to satisfy the training and qualification requirements of this section.

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§ 214.357 Training And Qualification For Operators Of Roadway Maintenance Machines Equipped With A Crane.

Federal Railroad Administration

Moving America Forward

Paragraph (c) requires that each employer maintain records that form the basis of the training and qualification determinations of each operator of roadway maintenance machines equipped with a crane that it employs. This requirement repeats the requirement contained in § 243.203 to maintain records. However, it is useful to repeat the requirement as a reminder to employers. In repeating this requirement, FRA does not intend the requirement to cause an employer to duplicate records kept in accordance with proposed part 243.  Similarly, paragraph (d) requires that each employer is required to make all records available for inspection and copying/photocopying to representatives of FRA, upon request during normal business hours, as is also required in part 243.

In paragraph (e), FRA permits training conducted by an employer in accordance with operator qualification and certification required by the Department of Labor (29 CFR 1926.1427) to be used to satisfy the training and qualification requirements of this section. The purpose of this paragraph is to allow an employer to choose to train and certify an employee in accordance with OSHA's Final Crane Rule and opt out of the other proposed requirements of this section for that employee. As explained in the introductory analysis to part 214 in the NPRM, if the crane equipment is modified for railroad operations there may not be an accredited crane operator testing organization that could certify the operator in accordance with OSHA's Final Crane Rule. 29 CFR 1926.1427(b).  However, there are some roadway maintenance machines equipped with a crane that are considered standard construction equipment and thus it would be possible to certify operators of that equipment through such an accredited organization. For this reason, FRA does not want to preclude the option for a person to be trained by the accredited organization and meet OSHA's requirements in lieu of FRA's requirements. Similarly, FRA envisions that some railroads or employers may employ some operators on roadway maintenance machines equipped with a crane who could be used exclusively within State or local jurisdictions in which the operators are licensed. Under those circumstances, the operator would be in compliance with OSHA's fourth option for certifying crane operators as it permits the licensing of such operators by a government entity. 29 CFR 1926.1427(e).  FRA has no objection to the use of crane operators who meet OSHA's requirements and does not intend, by the addition of this section, to impose any additional regulatory requirements on such operators. Although the purpose of this section is to provide an alternative method of training and qualification that is tailored to the unique circumstances faced by most operators of roadway maintenance machines equipped with a crane working for the railroad industry, the purpose of paragraph (e) is to permit an employer to opt out of the alternative FRA requirements as long as the operator has met OSHA's training and certification requirements.

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Issues Handled in Preamble, But Not In Rule Text

Verbal Protection

Physical characteristics qualification for watchmen/lookouts and lone workers

Removal of object by hand under train approach warning

Definition for the term “remotely controlled hump yard facility”

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Federal Railroad Administration

Moving America Forward

NTSB Recommendation R-08-06  

In the NPRM, FRA requested comment on the issue of whether to require railroads to utilize redundant forms of protection when working limits are established in accordance with existing § 214.321.  This request for comment was in response to NTSB Safety Recommendation R-08-06, issued after a 2007 accident near Woburn, Massachusetts, in which two Massachusetts Bay Transportation Authority (MBTA) maintenance-of way employees were killed.  MBTA had a rule in effect at the time of the accident which required that roadway workers shunt track circuits in order to provide additional signal protections to prevent trains or other rolling equipment from entering working limits.  The NTSB found that the roadway work group involved in the incident did not comply with that rule, and found that that the probable cause of that accident was “the failure of the train dispatcher to maintain blocking that provided signal protection for the track segment occupied by the maintenance-of-way work crew, and the failure of the work crew to apply a shunting device that would have provided redundant signal protection for their track segment.”  The NTSB made several safety recommendations in response to that accident, including Safety Recommendation R-08-06.  That recommendation states FRA should “[r]equire redundant signal protection, such as shunting, for maintenance of way work crews who depend on the train dispatcher to provide signal protection.” See NTSB Accident Report NTSB/RAR-0801, Collision of Massachusetts Bay Transportation Authority Train 322 and Track Maintenance Equipment near Woburn, Massachusetts, January 9, 2007; available online at http://www.ntsb.gov/doclib/reports/2008/RAR0801.pdf. In addition, the NTSB has reiterated recommendation R-08-06 to FRA after a May 28, 2013, accident in which a Metro-North maintenance of way employee was struck and killed by a train in Connecticut.

Industry replied to the FRA request for comments indicating that mandatory provision of shunt application  would be counterproductive because shunting cannot be relied on due to: 1) the characteristics of track infrastructure that lead to periodic loss of shunt for certain equipment, 2) the susceptibility of shunts to only work intermittently when used near signal islands, and 3) the lack of reliability of individual locomotives or roadway maintenance machines to shunt.  Further, there are safety issues that shunting presents, specifically grade crossing warning device malfunctions and signal system interference, and also to concerns related to cost, training, and practicality of shunting requirements. 

FRA is not adopting a redundant protections requirement in this final rule, but will continue to consider the issue for purposes of future rulemaking proceedings.   FRA has not resolved how to address the dangers to safety that shunting itself presents in many instances, as pointed out by several commenters (including the labor organizations).  Shunting procedures can be disruptive to signal systems and grade crossing warning systems, and, in some circumstances, are not permissible under FRA’s regulations at 49 CFR parts 234 and 236.  

An additional concern FRA has with shunting is exposing the employees who are required to shunt to electrical hazards in certain territories that they might otherwise not be exposed to in the absence of such a requirement.  In signalized controlled track territories, other than shunting (or somehow making the track physically inaccessible, which eliminates the ability of trains to travel through working limits when necessary and presents its own risks to railroad safety, e.g., derails being placed in signalized high-speed territories, and potential signal system interference) there are limited options for redundant protections.   

FRA believes that this issue requires more study and discussion with the railroad industry on how to accomplish redundant protections in a safe, efficient, and cost-effective manner before action in the form of Federal railroad safety regulation is prudent.  Varying signal systems, physical characteristics, equipment, operating rules, and other factors from railroad to railroad make a one-size fits all Federal regulation governing the use of redundant protections impractical, and likely, not cost beneficial.  However, as explained in the NPRM, roadway workers are already required by existing § 214.313(a) to follow all on-track safety rules and procedures of a railroad even if such rules are not enumerated in Federal regulation.   FRA also notes that the forthcoming implementation of required Positive Train Control (PTC) systems in the future will prevent unauthorized incursions into working limits on territories where that technology is required to be installed.  PTC is required to be installed in the future on both of the railroad properties (MBTA and Metro-North) on which the accidents that NTSB made this recommendation in response to occurred.   The cost of PTC installation and the corresponding benefits in the form of prevented work zone incursions have already been accounted for in the final rule promulgating the PTC requirements at 49 CFR part 236.  75 FR 2598; See accompanying FRA Regulatory Impact Analysis, Docket No. 2008-0132-0060; available online at www.regulations.gov.   

Additionally, on November 25, 2014, FRA published Safety Advisory 2014-02 regarding clear communication, compliance with existing rules and procedures, and ensuring that appropriate safety redundancies are in place.  79 FR 70268; correction published at 79 FR 71152 (Dec. 1, 2014).  The safety advisory recommended, in part, that railroads monitor their employees for compliance with existing applicable rules and procedures and that they also examine their train dispatching systems, rules, and procedures to ensure that appropriate safety redundancies are in place in the event of miscommunication or error.  Id. at 70270.  The safety advisory was in response to concerns raised by NTSB recommendation R-08-06, and to other incidents that had occurred where roadway workers were either outside of working limits authority, or where working limits were no longer protected due to dispatcher error.  The safety advisory discussed several methods of technology available to establish redundant protections that might be available depending on a railroad’s specific operating situation.  The safety advisory also reiterated that the probability of such incidents occurring as a result of non-compliance with existing rules and regulations could be significantly reduced upon the installation of PTC systems in the future. 

Verbal Protection

Consistent with a recommendation of the Working Group, in the NPRM FRA recommended a new proposed § 214.324, designed to enable roadway workers to establish working limits through the use of “verbal protection”   In the NPRM, FRA explained that by proposing to adopt the Working Group’s “verbal protection” recommendations, the agency intended to address discrepancies discussed by the Working Group regarding how on-track safety terminology and use varies in different parts of the country.  As proposed, verbal protection nearly mirrors the requirements of foul time.  For example, as proposed, if a roadway worker in charge established working limits utilizing either verbal protection or foul time, he or she would not be required to copy a written authority and maintain possession of it while working limits were in effect.  Instead, the roadway worker in charge would only be required to correctly repeat back the applicable working limits information to the train dispatcher or control operator.  The primary differences between verbal protection as proposed and the existing allowing for establishing working limits via foul time (existing § 214.323) are (1) verbal protection could only be utilized within manual interlockings or controlled points; and (2) verbal protection would allow a roadway worker in charge to authorize on-track equipment and trains to move into and within working limits.  Under existing § 214.323, foul time, can be utilized both within and outside of manual interlockings or controlled points, and trains and on-track equipment are prohibited from moving into working limits until the roadway worker who obtained the foul time reports clear of the track.  

In the NPRM, FRA requested comment on whether a roadway worker in charge using verbal protection to establish working limits should be required to make and maintain a copy of the working limits information.  FRA noted that such a requirement would ensure that a roadway worker in charge could reference a written document if any question regarding the working limits arose.  FRA believed that this would be particularly important  for a roadway worker in charge utilizing verbal protection who is asked to clear track to permit trains or other on-track equipment to move through his or her working limits and then resume work.    

FRA reviewed the records of the Working Group’s discussions related to verbal protection.  That review indicates that the Working Group largely intended verbal protection as a method for roadway maintenance machines to occupy and move through interlockings and to perform short duration work as necessary.   FRA notes that existing part 214 already accommodates these activities through the establishment of working limits via foul time (§ 214.323) and exclusive track occupancy (§ 214.321).  Because existing part 214 already provides the flexibility that FRA intended the proposal for verbal protection to achieve, in this final rule FRA is not adopting the proposal. FRA notes that part 214 does not require the establishment of working limits to move roadway maintenance machines through an interlocking or controlled point.  Existing § 214.301, allows roadway maintenance machine movements on controlled track that are made under the direction of the dispatcher or control operator.  Accordingly, verbal protection is not necessary to accommodate the movement of roadway maintenance machines through an interlocking or controlled point.  

If it is necessary for a roadway worker moving a roadway maintenance machine through an interlocking or controlled point to stop and make a repair, under existing § 214.323, the worker could use foul time to establish working limits.  In the same manner as the proposed verbal protection section, existing § 214.323 permits the establishment of foul time working limits within a manual interlocking or controlled point, and permits the working limits to be established orally by the roadway worker in charge and the dispatcher.  Although part 214 does not specify any time limit on the duration of foul time that can be granted, typically, foul time is used for short durations of time.  If longer duration work needs to be performed such that a roadway worker in charge desires to let trains through working limits without giving up his or her authority, the roadway worker in charge can use the exclusive track occupancy procedures at § 214.321.  

Further, FRA believes that a requirement to write down verbal protection would make verbal protection virtually indistinguishable from the existing exclusive track occupancy procedures under existing § 214.321.  This reinforces FRA’s belief that a new verbal protection section is unnecessary.  

FRA also believes that in some instances the use of verbal protection could raise safety issues if not utilized as intended (e.g., to establish working limits within an interlocking to perform involved work such that a roadway work group had to repeatedly clear and then re-occupy track to let trains travel through working limits).  After careful consideration of this issue, FRA strongly believes that if a work group desires to be able to let trains or other on-track equipment travel through working limits without releasing its authority, the roadway worker in charge should have a written (or electronic) document to refer to that contains all the relevant information related to that authority (e.g., the exact limits of the authority, track number(s)).  The existing exclusive track occupancy procedures at § 214.321 provide for such a document for the work group to reference.  

FRA understands that the operating rules of various railroads may utilize different terminology than exists in part 214 (e.g., some railroads’ rules refer to § 214.321’s exclusive track occupancy requirements as “foul time”).  FRA also understands some railroad rules may differ from part 214 in not permitting the use of certain forms of working limits within the limits of an interlocking or controlled point.  However, existing part 214 contains no such restrictions.  Either foul time or exclusive track occupancy may be used to establish working limits within a manual interlocking or controlled point, and already accommodate a desire to perform work in which working limits are transmitted verbally, and other situations whereby a roadway worker in charge would not have to give up working limits in order to let equipment pass into or through working limits.  In sum, a new verbal protection section would not create any flexibility in establishing working limits within a manual interlocking or controlled point that part 214 does not already provide,  and could potentially introduce safety concerns that do not currently exist if not used as the Working Group may have originally intended.   Thus, FRA declines to adopt this new section in this final rule.     

Physical characteristics qualification for watchmen/lookouts and lone workers:  

In the NPRM, FRA requested comment regarding whether to require qualification on the physical characteristics for lone workers and watchmen/lookouts.  The request was to determine whether such a requirement would potentially improve safety for lone workers, who are essentially roadway workers in charge, and whether such a requirement would enable watchmen/lookouts the knowledge regarding how to safely give train approach warning at a particular location. 

As background, existing § 214.353 governs qualification and training for roadway workers in charge that provide for on-track safety, and requires such training include the “relevant physical characteristics of the territory of the railroad upon which the roadway worker is qualified.”  However, such a qualification is not required in § 214.347, which governs training for lone workers, and from § 214.349, which governs training for watchmen/lookouts.  

FRA has decided not to adopt either the lone worker or watchmen/lookouts physical characteristics requirement.  First, no commenters supported the proposal with regard to watchmen/lookouts, pointing to cost prohibitions, the fact that each roadway work group is already required to have a roadway worker in charge who is qualified on the physical characteristics, and also to issues relating to logistics and efficiency.  With regard to lone workers, some commenters did support such a requirement.  FRA is not aware of accident data to offset the costs that such a requirement might entail.  As a practical matter, lone workers are often already qualified on the physical characteristics of a territory, as they need to be conversant in which type of protection (working limits versus individual train detection) is appropriate at any given location where they are required to perform work.  FRA also notes that under the existing RWP regulation that lone workers always have the absolute right to establish working limits when fouling track.  

Removal of object by hand under train approach warning:

The Working Group reached consensus to add a new paragraph (g) to § 214.337 to prohibit lone workers from utilizing individual train detection to provide on-track safety when using a roadway maintenance, machine, or piece of equipment that cannot be readily removed from the track by hand.  The Working Group also discussed a similar provision as related to the use of train approach warning in situations when roadway work groups use maintenance machines, equipment, or material not easily removed from the track, but was not able to reach consensus on this point.  As such, in the NPRM, FRA proposed a new paragraph (h) to § 214.329, which would have specifically prohibited train approach warning from being used as the form of on-track safety when a roadway work group was using such equipment that could not be readily removed by hand.  This proposal was intended to expressly establish that train approach warning is not the safe or appropriate form of on-track safety when equipment that cannot be removed from the track is being used, but rather the establishment of working limits is in such situations. 

FRA has decided not to include proposed paragraph (h) in this final rule.  As discussed in the NPRM, the Working Group was unable to reach consensus on this topic during its deliberations.  Also, FRA believes that the commenters raise valid points regarding the safety of roadway workers.  The regulation is intended to provide an effective method of on-track safety for roadway workers.  A roadway workers first responsibility upon receiving train approach warning is to move to occupy a place of safety so as to not be struck by an approaching train or piece of on-track equipment.  While FRA’s intent in making the proposal was to improve safety, after weighing the issue has decided that safety is best improved by reinforcing strict compliance with the existing train approach warning regulation which, if followed, provides for effective on-track safety for roadway workers.  Railroad operating rules already dictate whether roadway maintenance machinery has the authority to occupy track (See § 214.301(c)), and FRA believes railroad rules are the most appropriate arbiter of the use of tools or equipment being used under train approach warning.  

In evaluating the fatalities that have occurred under train approach warning since promulgation of the RWP regulation, FRA believes that to prevent future roadway worker accidents the focus should remain be on appropriately complying with § 214.329’s existing requirements designed to ensure roadway worker safety.

The industry’s Fatality Analysis of Maintenance-of-Way Employees and Signalmen (FAMES) group recently analyzed the fatal accidents that have occurred under train approach warning, and published a report on such on January 6, 2014.  The report makes findings and recommendations with regard to train approach warning fatalities, with particular areas of emphasis being compliance with existing § 214.329(b), which requires that watchmen/lookouts devote their full attention to detecting the approach of trains and communicating the warning of such, and not be assigned any other duties while performing duties as a watchmen/lookout.  FRA believes that emphasis on the existing requirements of § 214.329 and continued vigilant enforcement efforts will help to ensure roadway worker safety when train approach warning is used as the method of establishing on-track safety http://www.fra.dot.gov/eLib/Details/L04902.  

Definition “Remotely controlled hump yard facility”

The Working Group discussed possible definitions for that term as used in § 214.337 but was unable to reach consensus.  FRA received a comment in response to that NPRM discussion from BMWED/BRS.  The BMWED/BRS comment stated the labor organizations believe that a remotely controlled hump yard facility begins at the crest of the hump, through the retarders and classification tracks, to and including the far pull-out end.  The comment requested that if FRA were to make a determination concerning the limits of a hump yard facility in the event a concern was raised with regard to compliance with § 214.337, that the labor organizations’ designated representatives be involved in any discussions regarding the determination of the hump yard limits.  FRA anticipates if a dispute were to arise regarding this issue that FRA staff would speak to all interests involved in making a determination.

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What we hope you now can do!

Explain the new definitions and their relationship to the new regulations.  § 214.7

List the railroad and FRA requirements for an initial submission or modification of a railroad’s OTS program. § 214.307

State the 3 designated procedural elements associated with a railroads OTS manual. § 214.309

Specify the new job briefing requirements related to the RWIC’s accessibility. § 214.315(a)(5)

Stipulate the new training requirement associated with walking across track(s) without OTS. §  214.317(b)

Define the procedures required of a railroad RWIC when weed spraying or utilizing snow blowing equipment in non-controlled track in lieu of Inaccessible Track. § 214.317(c)

Explain the requirements to utilize a tunnel niche as the POS when the niche does not meet the fouling clearance envelope.  214.317(d)

78

Federal Railroad Administration

Moving America Forward

Adjacent Track Rule learning objectives. 

Upon completion of this class, you should be able to accomplish the following objectives.

The appropriate information to comply with each objective is found under the section/paragraph listed at the end of each objective

78

What we hope you now can do!

Specify when and where Part 218 designated workers and contractors may utilize Blue Signal protection in lieu of RWP. § 214.318

Understand the requirements for redundant signal protections for roadway work groups who depend on a train dispatcher or control operator to provide signal protection in establishing controlled track working limits. § 214.319(b) and (c).

Define the requirements associated with RMM movement in non-controlled ABS signalled track operated in excess of Restricted Speed. § 214.320

State the requirements related to authority related communications between the RWIC and trains or OTE. § 214.321(b)(4)

List the verification procedures required of a RWIC and piggyback crew when securing occupancy authority behind a train. § 214,321(e)

Explain the RWIC requirements should his electronic authority display fail while he is foul of the track. § 214.322(b)

79

Federal Railroad Administration

Moving America Forward

Adjacent Track Rule learning objectives. 

Upon completion of this class, you should be able to accomplish the following objectives.

The appropriate information to comply with each objective is found under the section/paragraph listed at the end of each objective

79

What we hope you now can do!

Specify the modifications and changes associated with § 214.323 Foul Time. § 214.323

Describe the procedures required to utilize a manned locomotive with or without cars to create working limits on non-controlled track (Iron Flagman Rule).  § 214.327(a)(6)  

List the conditions that must be implemented should a railroad desire to utilize Block Register Territory to create working limits.  § 214.327(a)(7)  

Describe under what conditions a train, engine or OTE may seek to enter Yard Limits. § 214.327(a)(8)  

State the requirement regarding a roadway worker utilizing another track as the POS under Train Approach Warning. § 214.329(a)  

Provide the one situation where a Lone Worker can utilize ITD inside the limits of a Controlled Point. § 214.337(c)(3)    

Specify what form of OTS a Lone Worker may not utilize when operating RMM’s, equipment or material not readily removable by hand. § 214.337(g)

80

Federal Railroad Administration

Moving America Forward

Adjacent Track Rule learning objectives. 

Upon completion of this class, you should be able to accomplish the following objectives.

The appropriate information to comply with each objective is found under the section/paragraph listed at the end of each objective

80

What we hope you now can do!

List the conditions when an audible warning must be provided and what a railroad’s procedures must address. § 214.339

Explain the railroad requirements for safety instructions where a manufactured machine has been modified for a specific railroad use. § 214.341(b)(2)

Specify the additional training requirement for annual training of all roadway workers. § 214.345(f)

State the maximum period permitted between requalification of all roadway worker duties associated defined in this part. § 214.347(b) - § 214.355(b)

List the training requirements for a RWIC or an employee acting as a RWIC. § 214.353

Describe the railroad compliance requirements related to RMM’s equipped with a crane. § 214.357

81

Federal Railroad Administration

Moving America Forward

Adjacent Track Rule learning objectives. 

Upon completion of this class, you should be able to accomplish the following objectives.

The appropriate information to comply with each objective is found under the section/paragraph listed at the end of each objective

81

Questions

82

Joseph E Riley PE (Joe)

Acting Staff Director Track

Office of Railroad Safety

Federal Railroad Administration

1200 New Jersey Ave SE, Mail Stop 25

Washington, DC  20590

(202)493-6357

(202)744-6057 (Cell)

Joseph.e.riley@dot.gov 

Moving America Forward

Questions......

82

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