81_FR_85902 81 FR 85674 - Identification and Mitigation of Hazards Through Job Safety Briefings and Hazard Recognition Strategies

81 FR 85674 - Identification and Mitigation of Hazards Through Job Safety Briefings and Hazard Recognition Strategies

DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration

Federal Register Volume 81, Issue 228 (November 28, 2016)

Page Range85674-85676
FR Document2016-28558

FRA is issuing Safety Advisory 2016-02 out of concern for the number of railroad and railroad contractor fatalities that occur when roadway workers perform certain activities that fall outside the scope of FRA's safety regulations, but within the purview of the U.S. Occupational Safety and Health Administration's (OSHA) regulations. FRA is issuing this Safety Advisory to remind railroads and railroad contractors, and their employees (including roadway workers) of the importance of identifying hazardous conditions at job locations, conducting thorough job safety briefings to discuss the hazardous conditions, and taking appropriate actions to mitigate those conditions. This Safety Advisory reminds railroads, railroad contractors, and their respective employees that OSHA's job safety regulations may apply to certain roadway worker activities and makes recommendations for hazard recognition strategies and challenge procedures that could improve roadway worker safety while roadway workers are engaged in activities subject to OSHA's regulations. FRA considers this Safety Advisory responsive to the National Transportation Safety Board's (NTSB) Recommendations R-14-33, R-14-35, and R-14-36.

Federal Register, Volume 81 Issue 228 (Monday, November 28, 2016)
[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Notices]
[Pages 85674-85676]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28558]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Safety Advisory 2016-02]


Identification and Mitigation of Hazards Through Job Safety 
Briefings and Hazard Recognition Strategies

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

ACTION: Notice of Safety Advisory.

-----------------------------------------------------------------------

SUMMARY: FRA is issuing Safety Advisory 2016-02 out of concern for the 
number of railroad and railroad contractor fatalities that occur when 
roadway workers perform certain activities that fall outside the scope 
of FRA's safety regulations, but within the purview of the U.S. 
Occupational Safety and Health Administration's (OSHA) regulations. FRA 
is issuing this Safety Advisory to remind railroads and railroad 
contractors, and their employees (including roadway workers) of the 
importance of identifying hazardous conditions at job locations, 
conducting thorough job safety briefings to discuss the hazardous 
conditions, and taking appropriate actions to mitigate those 
conditions. This Safety Advisory reminds railroads, railroad 
contractors, and their respective employees that OSHA's job safety 
regulations may apply to certain roadway worker activities and makes 
recommendations for hazard recognition strategies and challenge 
procedures that could improve roadway worker safety while roadway 
workers are engaged in activities subject to OSHA's regulations. FRA 
considers this Safety Advisory responsive to the National 
Transportation Safety Board's (NTSB) Recommendations R-14-33, R-14-35, 
and R-14-36.

FOR FURTHER INFORMATION CONTACT: Mr. Joseph E. Riley, Track Specialist, 
Track Division, Office of Technical Oversight, FRA, 1200 New Jersey 
Avenue SE., Mail Stop 25, Washington, DC 20590, (202) 493-6357.

SUPPLEMENTARY INFORMATION: On April 3, 2016, two National Railroad 
Passenger Corporation (Amtrak) employees were killed in Chester, 
Pennsylvania, when an Amtrak train struck a backhoe on that track. 
Although the NTSB has not concluded its

[[Page 85675]]

investigation of this accident, FRA believes more robust protection of 
roadway workers \1\ employed by railroads and railroad contractors who 
work on or near railroad track is necessary. Railroad safety is of the 
utmost importance to FRA, and FRA has taken several measures, some of 
which are discussed below, to better protect roadway workers.
---------------------------------------------------------------------------

    \1\ FRA regulations define a ``roadway worker'' as ``any 
employee of a railroad, or of a contractor to a railroad, whose 
duties include inspection, construction, maintenance or repair of 
railroad track, bridges, roadway, signal and communication systems, 
roadway facilities or roadway maintenance machinery on or near track 
or with the potential of fouling a track, and flagmen and watchmen/
lookouts.'' 49 CFR 214.7.
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    On June 10, 2016, FRA published two final rules addressing roadway 
worker safety. One of the rules amends FRA's Roadway Worker Protection 
(RWP) regulations (49 CFR part 214, subpart C), while the second rule 
revises FRA's alcohol and drug regulations (49 CFR part 219).
    The final rule, ``Railroad Workplace Safety; Roadway Worker 
Protection Miscellaneous Revisions (RRR)'' (RWP Final Rule), resolves 
miscellaneous interpretive issues, codifies certain FRA technical 
bulletins, adopts new requirements governing redundant signal 
protections and the movement of roadway maintenance machines over 
certain types of track, and amends certain qualification requirements 
for roadway workers. See 81 FR 37840, June 10, 2016. For example, the 
RWP Final Rule mandates job briefings for roadway workers include 
information on the accessibility of the roadway worker in charge. 
Second, it sets standards for how ``occupancy'' behind train 
authorities (when the authority for a work crew does not begin until 
the train has passed the area) can be used. Third, it requires annual 
training for any train, yard, and engine service individual acting as a 
roadway worker in charge. Finally, it requires railroads to annually 
train all roadway workers on their procedures for determining whether 
it is safe to cross track.
    The final rule, ``Control of Alcohol and Drug Use: Coverage of 
Maintenance of Way (MOW) Employees and Retrospective Regulatory Review-
Based Amendments'' (MOW Final Rule), broadens the scope of FRA's 
alcohol and drug regulations to cover MOW employees.\2\ See 81 FR 
37894, June 10, 2016. The MOW Final Rule subjects all MOW employees to 
FRA's drug and alcohol testing, including random testing, post-accident 
testing, reasonable suspicion testing, reasonable cause testing, pre-
employment testing, return-to-duty testing, and follow-up testing. The 
MOW Final Rule also requires drug testing of railroad and MOW employees 
involved in certain highway-rail grade crossing accidents or incidents.
---------------------------------------------------------------------------

    \2\ The MOW Final Rule defines the term ``maintenance-of-way 
employee'' or ``MOW employee'' as ``a roadway worker, as defined in 
49 CFR 214.7.''
---------------------------------------------------------------------------

    On March 17, 2016, FRA published Safety Advisory 2016-01 addressing 
the movement of roadway maintenance machines over highway-rail grade 
crossings. In Safety Advisory 2016-01, FRA emphasized the importance of 
compliance with railroad operating rules over highway-rail grade 
crossings and the need for railroad employees and contractors operating 
those machines to maintain situational awareness. See 81 FR 14516, Mar. 
17, 2016. Specifically, in Safety Advisory 2016-01 FRA recommends 
railroads and railroad contractors review, update, and follow rules and 
procedures governing the safe movement of roadway maintenance machines 
traversing highway-rail grade crossings.
    As discussed above, FRA has taken a number of recent steps to 
better protect roadway workers when those roadway workers are engaged 
in activities subject to FRA's safety jurisdiction. When those 
employees are engaged in activities outside the scope of FRA's safety 
regulations, they may be required to comply with OSHA's regulations, 
such as 29 CFR part 1910 (Occupational Safety and Health Standards) and 
29 CFR 1926 (Safety and Health Regulations for Construction). 
Specifically, railroads and railroad contractors may be required to 
implement policies and procedures mandated by OSHA relating to the 
working conditions for roadway workers.
    Between January 1, 2000 and December 31, 2015, over 60 roadway 
worker fatalities occurred while the roadway workers performed work not 
covered by FRA's safety regulations. This leads FRA to believe 
railroads and railroad contractors, as well as their employees, may 
fail to recognize potential hazards outside of those directly governed 
by FRA's rail safety regulations and may fail to develop and implement 
appropriate risk mitigation actions.
    During the NTSB's September 24, 2014, hearing regarding the 2013 
MOW and signal employee fatalities, the NTSB reminded the rail industry 
that, in certain situations, OSHA's regulations apply to railroads and 
railroad contractors, including OSHA's requirements that employees: (1) 
Conduct hazard assessments to identify and address existing conditions 
that pose safety hazards; (2) conduct job safety briefings prior to 
every work activity; and (3) conduct additional job briefings if 
significant changes occur during the course of the work. See 29 CFR 
1910.132(d), 1910.269(a)(3), 1910.269(c), 1926.952(b)-(d).\3\
---------------------------------------------------------------------------

    \3\ Also on September 24, 2014, the NTSB issued a report titled 
Special Investigation Report on Railroad and Rail Transit Roadway 
Worker Protection, SIR-14/03. In that report, NTSB issued three 
Safety Recommendations to FRA that this Safety Advisory is 
responsive to, including Safety Recommendations R-14-33, R-14-35, 
and R-14-36. NTSB's Recommendation R-14-33 states FRA should revise 
the job briefing provisions of its Roadway Worker Protection 
regulations (49 CFR part 214) to include best practices found in 
OSHA's regulations. NTSB's Recommendation R-14-35 states FRA should 
work with OSHA to establish guidelines for when and where OSHA 
standards should be applied to railroads and railroad workers. 
NTSB's Recommendation R-14-36 states FRA should require initial and 
recurring training for roadway workers in hazard recognition and 
mitigation, including recognition and mitigation of the hazards of 
tasks performed by coworkers.
---------------------------------------------------------------------------

    Although FRA's safety regulations require on-track safety job 
briefings prior to an employee fouling track,\4\ through this Safety 
Advisory, FRA reminds railroads and railroad contractors and their 
respective employees that when their roadway workers are engaged in 
activities that fall outside the scope of FRA's safety regulations, 
those activities may be subject to OSHA's regulations. And, those OSHA 
regulations may require job safety briefings prior to beginning certain 
work activities, and additional job safety briefings if a new hazard is 
discovered during the work assignment. Job safety briefings, specific 
to the task or tasks to be performed, provide a mechanism to not only 
communicate identified risks to every member of the roadway work group, 
but to also ensure that the roadway work group agrees as to how the 
identified risks will be mitigated. The job safety briefing is a key 
component in preventing individual conditions, which can be harmless in 
isolation, from becoming a potentially dangerous situation.
---------------------------------------------------------------------------

    \4\ See e.g., 49 CFR 214.315(a) and (d) (addressing job safety 
briefings).
---------------------------------------------------------------------------

    Railroads and railroad contractors should consider having a 
workable strategy for identifying safety hazards that exist in their 
work environments and for eliminating or addressing such safety 
hazards. Railroads and railroad contractors should therefore consider 
developing and implementing annual training for their roadway workers 
in various hazard recognition techniques. Whenever a hazard or risk is 
identified, a roadway worker should stop, look around, and analyze the 
situation for potential harm. Recognizing every situation for its 
potential danger may be

[[Page 85676]]

challenging. Moreover, individual, isolated conditions may appear to be 
harmless. However, a combination of several seemingly harmless 
conditions can present a serious safety hazard.
    Examples of contributing factors or actions roadway workers may 
face or engage in that may have been a factor in one or more roadway 
worker fatalities since 2000 while the roadway workers were performing 
work not covered by FRA regulations include, but are not limited to: 
Ascending or descending; falling objects; electrocution; an 
unanticipated energy release; slips, trips and falls; hoisting or 
lowering an object; off-track equipment striking roadway workers; 
collisions between roadway maintenance machines and standing trains; 
highway vehicle collisions (vehicle to vehicle); highway vehicles 
striking roadway workers; and environmental-related hazards (swarming 
bees, mudslides, heat stroke, flash floods, etc.).
    FRA and the railroad industry have witnessed success using the Good 
Faith Challenge Procedures found in FRA's regulations \5\ for 
situations when a roadway worker believes the on-track safety procedure 
being used is inadequate for the work being performed. In such a 
situation, the roadway worker may remain clear of the track until the 
challenged safety issue is resolved without fear of retribution or 
retaliation. Many railroads have adopted Good Faith Challenge 
Procedures for any safety-related concern, not just those FRA 
regulates. FRA recommends all railroads and railroad contractors adopt 
appropriate Good Faith Challenge Procedures for any recognized hazard 
identified during job safety briefings or any hazard otherwise arising 
during the course of work activities roadway worker believes requires 
remediation, whether FRA, OSHA, or another Federal agency regulate the 
that hazard.
---------------------------------------------------------------------------

    \5\ See 49 CFR 214.311 (responsibility of employers to implement 
Good Faith Challenge Procedures).
---------------------------------------------------------------------------

    Recommendations: In light of the above discussion, and in an effort 
to improve job safety briefings, improve the identification and 
mitigation of potential safety hazards existing in the working 
environments of roadway workers, and reduce the number of injuries and 
fatalities occurring when roadway workers are engaged in activities 
outside the scope of FRA's safety regulations, FRA recommends railroads 
and railroad contractors:
    1. Develop hazard-recognition strategies identifying and addressing 
existing conditions posing actual or potential safety hazards, 
emphasizing the contributing factors or actions involved in roadway 
worker-related fatalities occurring since 2000.
    2. Provide annual training to roadway workers on the use of hazard-
recognition strategies developed by the railroad or the railroad 
contractor.
    3. Institute procedures for mandatory job safety briefings 
compliant with OSHA's regulations prior to initiating any roadway 
worker activity. Consistent with OSHA's regulations, roadway workers 
should use hazard-recognition procedures to identify potential hazards 
in their job briefings and then determine the appropriate measures to 
mitigate the identified hazards. If an unforeseen situation develops 
during work performance, roadway workers should stop working and 
conduct a second job briefing to determine the appropriate means of 
mitigating the new hazard.
    4. Develop and apply Good Faith Challenge Procedures for all 
roadway workers who, in good faith, believe a task is unsafe or an 
identified hazard has not been mitigated.
    FRA encourages railroad and railroad contractor industry members to 
take actions consistent with the preceding recommendations and any 
other actions that may help ensure the safety of roadway workers. 
Although the primary purpose of this Safety Advisory is for railroads 
and railroad contractors to apply these recommendations to activities 
that fall outside the scope of FRA's safety regulations, FRA also 
encourages the industry to apply these recommendations to activities 
FRA's regulations govern.
    FRA may modify this Safety Advisory, issue additional safety 
advisories, or take other appropriate actions necessary to ensure the 
safety of the Nation's railroads, including pursuing other corrective 
measures under its safety laws and regulations.

    Issued in Washington, DC, on November 22, 2016.
John K. Alexy,
Director, Office of Safety Analysis.
[FR Doc. 2016-28558 Filed 11-25-16; 8:45 am]
BILLING CODE 4910-06-P



                                                  85674                      Federal Register / Vol. 81, No. 228 / Monday, November 28, 2016 / Notices

                                                  http://www.archives.gov and the                         have a verified Federal tax delinquency                 Issued on: November 17, 2016.
                                                  Government Publishing Office’s                          or companies who have been convicted                  Gregory G. Nadeau,
                                                  database at: http://www.access.gpo.gov/                 of a Federal felony offense within 2                  Administrator, Federal Highway
                                                  nara.                                                   years prior to the award. The new                     Administration.
                                                  Background                                              certifications implement the                          [FR Doc. 2016–28586 Filed 11–25–16; 8:45 am]
                                                                                                          Government-wide General Provisions,                   BILLING CODE P
                                                     As provided in 23 CFR 633.103, Form
                                                                                                          currently under Division E, Title VII,
                                                  FHWA–1273 includes contract
                                                                                                          Financial Services and General
                                                  provisions and proposal notices that are                                                                      DEPARTMENT OF TRANSPORTATION
                                                  required by regulations promulgated by                  Government Appropriations Act, FY
                                                  FHWA or other Federal agencies. The                     2016 (Sections 745–746 in the FY 2016                 Federal Railroad Administration
                                                  provisions include non-discrimination,                  Act, 129 STAT. 2485–2486 and similar
                                                                                                          provisions in subsequent appropriations               [Safety Advisory 2016–02]
                                                  prevailing wage rates, subcontracting,
                                                  job-site safety, and other important                    acts). In addition, the Excluded Parties
                                                                                                                                                                Identification and Mitigation of Hazards
                                                  requirements that must be included in                   List System (www.EPLS.gov) has been                   Through Job Safety Briefings and
                                                  every Federal-aid construction project.                 replaced with the System for Award                    Hazard Recognition Strategies
                                                  According to 23 CFR 633.104(a), FHWA                    Management (www.SAM.gov). The
                                                  will update the form as regulatory                      reference to this system in the form is               AGENCY: Federal Railroad
                                                  revisions occur. Since the form was last                updated.                                              Administration (FRA), U.S. Department
                                                  revised on May 1, 2012, a number of                                                                           of Transportation (DOT).
                                                                                                             • We propose to add a new Section
                                                  policy revisions have occurred. The                                                                           ACTION: Notice of Safety Advisory.
                                                                                                          XII—Use of United States-Flag Vessels
                                                  revisions that are being proposed by
                                                                                                          to implement Cargo Preference Act                     SUMMARY:    FRA is issuing Safety
                                                  FHWA to Form FHWA–1273 will bring
                                                                                                          requirements on Federal-aid projects.                 Advisory 2016–02 out of concern for the
                                                  the form up to date with the current
                                                                                                          On October 14, 2008, President Obama                  number of railroad and railroad
                                                  requirements. The proposed revisions
                                                                                                          signed the ‘‘Duncan Hunter National                   contractor fatalities that occur when
                                                  are being made for the following
                                                                                                          Defense Authorization Act of 2009.’’                  roadway workers perform certain
                                                  reasons:
                                                     • The U.S. Department of Labor,                      Section 3511 of that Act amended the                  activities that fall outside the scope of
                                                  Office of Federal Contract Compliance                   Cargo Preference Act by stating the                   FRA’s safety regulations, but within the
                                                  (OFCCP) issued a final rule on                          requirements apply to cargoes financed                purview of the U.S. Occupational Safety
                                                  December 9, 2014, which revised the                     ‘‘in any way with Federal funds for the               and Health Administration’s (OSHA)
                                                  Equal Employment Opportunity                            account of any persons unless otherwise               regulations. FRA is issuing this Safety
                                                  requirements for Federal and federally                  exempted.’’ This Act requires the use of              Advisory to remind railroads and
                                                                                                                                                                railroad contractors, and their
                                                  assisted projects. We propose to                        a United States-Flag vessel for all
                                                                                                                                                                employees (including roadway workers)
                                                  implement minor revisions in Sections                   oceanic shipments (or shipments across
                                                                                                                                                                of the importance of identifying
                                                  II and III—Nondiscrimination and Non-                   the Great Lakes) necessary for materials              hazardous conditions at job locations,
                                                  segregated Facilities to replace the terms              or equipment acquired for a specific,                 conducting thorough job safety briefings
                                                  ‘‘sex’’ with ‘‘sex, sexual orientation, and             Federal aid highway project. See                      to discuss the hazardous conditions,
                                                  gender identity’’ to be consistent with                 FHWA’s December 8, 2015, legal                        and taking appropriate actions to
                                                  the 41 CFR 60–1.                                        opinion titled: ‘‘Cargo Preference Act
                                                     • Revisions are proposed to Section                                                                        mitigate those conditions. This Safety
                                                                                                          and Federal-aid Projects’’ (available                 Advisory reminds railroads, railroad
                                                  II.10 as follows: This section is retitled              online at https://www.fhwa.dot.gov/                   contractors, and their respective
                                                  as ‘‘Assurance Required,’’ the assurance
                                                                                                          construction/cqit/cargo/151208.cfm) for               employees that OSHA’s job safety
                                                  required by 49 CFR 26.13(b) is included
                                                                                                          additional information.                               regulations may apply to certain
                                                  verbatim, and incorporation by
                                                                                                             • Minor grammatical and formatting                 roadway worker activities and makes
                                                  reference is provided for the Title VI
                                                                                                          revisions are proposed throughout the                 recommendations for hazard recognition
                                                  assurance required by U.S. DOT Order
                                                                                                          document for clarity and to be                        strategies and challenge procedures that
                                                  1050.2A Appendices A and E.
                                                     • A revision is proposed to the first                consistent with 2 CFR part 200.                       could improve roadway worker safety
                                                  paragraph of Section IV to address the                                                                        while roadway workers are engaged in
                                                                                                             The proposed revision to Form                      activities subject to OSHA’s regulations.
                                                  ‘‘treatment of projects’’ provision in 23               FHWA–1273 will incorporate the
                                                  U.S.C. 133(i), which requires that all                                                                        FRA considers this Safety Advisory
                                                                                                          changes noted above as well as other                  responsive to the National
                                                  projects (excluding those funded under
                                                                                                          important changes to the required                     Transportation Safety Board’s (NTSB)
                                                  the recreational trail set-aside) be
                                                                                                          contract provisions. A list of the                    Recommendations R–14–33, R–14–35,
                                                  treated as if on a Federal-aid highway.
                                                     • Revisions are proposed to Section                  proposed changes and a marked-up                      and R–14–36.
                                                  IX—Implementation of Clean Air Act                      version of the changes are available at               FOR FURTHER INFORMATION CONTACT: Mr.
                                                  and Federal Water Pollution Control Act                 the following Web site: https://                      Joseph E. Riley, Track Specialist, Track
                                                  to be consistent with the provisions in                 www.fhwa.dot.gov/construction/cqit/                   Division, Office of Technical Oversight,
                                                  Appendix II to Part 200—Contract                        form1273.cfm.                                         FRA, 1200 New Jersey Avenue SE., Mail
                                                  Provisions for Non-Federal Entity                          The FHWA anticipates issuing a                     Stop 25, Washington, DC 20590, (202)
                                                  Contracts Under Federal Awards in 2                                                                           493–6357.
mstockstill on DSK3G9T082PROD with NOTICES




                                                                                                          second notice responding to the
                                                  CFR 200.                                                comments received and requiring the                   SUPPLEMENTARY INFORMATION: On April
                                                     • Revisions are proposed to Section                  use of the revised form for all Federal-              3, 2016, two National Railroad
                                                  X—Certification Regarding Debarrment,                   aid projects advertised 60 days after the             Passenger Corporation (Amtrak)
                                                  Suspension, Ineligibility and Voluntary                 publication date of the second notice.                employees were killed in Chester,
                                                  Exclusion to implement new                                                                                    Pennsylvania, when an Amtrak train
                                                  certification language to ensure that                     Authority: 23 U.S.C. 112; 23 CFR 633; 49            struck a backhoe on that track. Although
                                                  awards are not made to companies who                    CFR 1.85.                                             the NTSB has not concluded its


                                             VerDate Sep<11>2014   21:15 Nov 25, 2016   Jkt 241001   PO 00000   Frm 00167   Fmt 4703   Sfmt 4703   E:\FR\FM\28NON1.SGM   28NON1


                                                                             Federal Register / Vol. 81, No. 228 / Monday, November 28, 2016 / Notices                                                    85675

                                                  investigation of this accident, FRA                     testing, post-accident testing, reasonable            pose safety hazards; (2) conduct job
                                                  believes more robust protection of                      suspicion testing, reasonable cause                   safety briefings prior to every work
                                                  roadway workers 1 employed by                           testing, pre-employment testing, return-              activity; and (3) conduct additional job
                                                  railroads and railroad contractors who                  to-duty testing, and follow-up testing.               briefings if significant changes occur
                                                  work on or near railroad track is                       The MOW Final Rule also requires drug                 during the course of the work. See 29
                                                  necessary. Railroad safety is of the                    testing of railroad and MOW employees                 CFR 1910.132(d), 1910.269(a)(3),
                                                  utmost importance to FRA, and FRA has                   involved in certain highway-rail grade                1910.269(c), 1926.952(b)–(d).3
                                                  taken several measures, some of which                   crossing accidents or incidents.                         Although FRA’s safety regulations
                                                  are discussed below, to better protect                    On March 17, 2016, FRA published                    require on-track safety job briefings
                                                  roadway workers.                                        Safety Advisory 2016–01 addressing the                prior to an employee fouling track,4
                                                     On June 10, 2016, FRA published two                  movement of roadway maintenance                       through this Safety Advisory, FRA
                                                  final rules addressing roadway worker                   machines over highway-rail grade                      reminds railroads and railroad
                                                  safety. One of the rules amends FRA’s                   crossings. In Safety Advisory 2016–01,                contractors and their respective
                                                  Roadway Worker Protection (RWP)                         FRA emphasized the importance of                      employees that when their roadway
                                                  regulations (49 CFR part 214, subpart C),               compliance with railroad operating                    workers are engaged in activities that
                                                  while the second rule revises FRA’s                     rules over highway-rail grade crossings               fall outside the scope of FRA’s safety
                                                  alcohol and drug regulations (49 CFR                    and the need for railroad employees and               regulations, those activities may be
                                                  part 219).                                              contractors operating those machines to               subject to OSHA’s regulations. And,
                                                     The final rule, ‘‘Railroad Workplace                 maintain situational awareness. See 81                those OSHA regulations may require job
                                                  Safety; Roadway Worker Protection                       FR 14516, Mar. 17, 2016. Specifically, in             safety briefings prior to beginning
                                                  Miscellaneous Revisions (RRR)’’ (RWP                    Safety Advisory 2016–01 FRA                           certain work activities, and additional
                                                  Final Rule), resolves miscellaneous                     recommends railroads and railroad                     job safety briefings if a new hazard is
                                                  interpretive issues, codifies certain FRA               contractors review, update, and follow                discovered during the work assignment.
                                                  technical bulletins, adopts new                         rules and procedures governing the safe               Job safety briefings, specific to the task
                                                  requirements governing redundant                        movement of roadway maintenance                       or tasks to be performed, provide a
                                                  signal protections and the movement of                  machines traversing highway-rail grade                mechanism to not only communicate
                                                  roadway maintenance machines over                       crossings.                                            identified risks to every member of the
                                                  certain types of track, and amends                        As discussed above, FRA has taken a                 roadway work group, but to also ensure
                                                  certain qualification requirements for                  number of recent steps to better protect              that the roadway work group agrees as
                                                  roadway workers. See 81 FR 37840, June                  roadway workers when those roadway                    to how the identified risks will be
                                                  10, 2016. For example, the RWP Final                    workers are engaged in activities subject             mitigated. The job safety briefing is a
                                                  Rule mandates job briefings for roadway                 to FRA’s safety jurisdiction. When those              key component in preventing individual
                                                  workers include information on the                      employees are engaged in activities                   conditions, which can be harmless in
                                                  accessibility of the roadway worker in                  outside the scope of FRA’s safety                     isolation, from becoming a potentially
                                                  charge. Second, it sets standards for                   regulations, they may be required to                  dangerous situation.
                                                  how ‘‘occupancy’’ behind train                          comply with OSHA’s regulations, such                     Railroads and railroad contractors
                                                  authorities (when the authority for a                   as 29 CFR part 1910 (Occupational                     should consider having a workable
                                                  work crew does not begin until the train                Safety and Health Standards) and 29                   strategy for identifying safety hazards
                                                  has passed the area) can be used. Third,                CFR 1926 (Safety and Health                           that exist in their work environments
                                                  it requires annual training for any train,              Regulations for Construction).                        and for eliminating or addressing such
                                                  yard, and engine service individual                     Specifically, railroads and railroad                  safety hazards. Railroads and railroad
                                                  acting as a roadway worker in charge.                   contractors may be required to                        contractors should therefore consider
                                                  Finally, it requires railroads to annually              implement policies and procedures                     developing and implementing annual
                                                  train all roadway workers on their                      mandated by OSHA relating to the                      training for their roadway workers in
                                                  procedures for determining whether it is                working conditions for roadway                        various hazard recognition techniques.
                                                  safe to cross track.                                    workers.                                              Whenever a hazard or risk is identified,
                                                     The final rule, ‘‘Control of Alcohol                   Between January 1, 2000 and                         a roadway worker should stop, look
                                                  and Drug Use: Coverage of Maintenance                   December 31, 2015, over 60 roadway                    around, and analyze the situation for
                                                  of Way (MOW) Employees and                              worker fatalities occurred while the                  potential harm. Recognizing every
                                                  Retrospective Regulatory Review-Based                   roadway workers performed work not                    situation for its potential danger may be
                                                  Amendments’’ (MOW Final Rule),                          covered by FRA’s safety regulations.
                                                  broadens the scope of FRA’s alcohol and                 This leads FRA to believe railroads and                  3 Also on September 24, 2014, the NTSB issued

                                                                                                          railroad contractors, as well as their                a report titled Special Investigation Report on
                                                  drug regulations to cover MOW                                                                                 Railroad and Rail Transit Roadway Worker
                                                  employees.2 See 81 FR 37894, June 10,                   employees, may fail to recognize                      Protection, SIR–14/03. In that report, NTSB issued
                                                  2016. The MOW Final Rule subjects all                   potential hazards outside of those                    three Safety Recommendations to FRA that this
                                                  MOW employees to FRA’s drug and                         directly governed by FRA’s rail safety                Safety Advisory is responsive to, including Safety
                                                                                                          regulations and may fail to develop and               Recommendations R–14–33, R–14–35, and R–14–
                                                  alcohol testing, including random                                                                             36. NTSB’s Recommendation R–14–33 states FRA
                                                                                                          implement appropriate risk mitigation                 should revise the job briefing provisions of its
                                                     1 FRA regulations define a ‘‘roadway worker’’ as     actions.                                              Roadway Worker Protection regulations (49 CFR
                                                  ‘‘any employee of a railroad, or of a contractor to       During the NTSB’s September 24,                     part 214) to include best practices found in OSHA’s
                                                  a railroad, whose duties include inspection,            2014, hearing regarding the 2013 MOW                  regulations. NTSB’s Recommendation R–14–35
                                                  construction, maintenance or repair of railroad         and signal employee fatalities, the NTSB              states FRA should work with OSHA to establish
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                                                  track, bridges, roadway, signal and communication                                                             guidelines for when and where OSHA standards
                                                  systems, roadway facilities or roadway maintenance      reminded the rail industry that, in                   should be applied to railroads and railroad workers.
                                                  machinery on or near track or with the potential of     certain situations, OSHA’s regulations                NTSB’s Recommendation R–14–36 states FRA
                                                  fouling a track, and flagmen and watchmen/              apply to railroads and railroad                       should require initial and recurring training for
                                                  lookouts.’’ 49 CFR 214.7.                               contractors, including OSHA’s                         roadway workers in hazard recognition and
                                                     2 The MOW Final Rule defines the term                                                                      mitigation, including recognition and mitigation of
                                                  ‘‘maintenance-of-way employee’’ or ‘‘MOW
                                                                                                          requirements that employees: (1)                      the hazards of tasks performed by coworkers.
                                                  employee’’ as ‘‘a roadway worker, as defined in 49      Conduct hazard assessments to identify                   4 See e.g., 49 CFR 214.315(a) and (d) (addressing

                                                  CFR 214.7.’’                                            and address existing conditions that                  job safety briefings).



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                                                  85676                      Federal Register / Vol. 81, No. 228 / Monday, November 28, 2016 / Notices

                                                  challenging. Moreover, individual,                      involved in roadway worker-related                    private enterprise participation
                                                  isolated conditions may appear to be                    fatalities occurring since 2000.                      requirements under the Moving Ahead
                                                  harmless. However, a combination of                        2. Provide annual training to roadway              for Progress in the 21st Century Act
                                                  several seemingly harmless conditions                   workers on the use of hazard-                         (MAP–21). It also includes additional
                                                  can present a serious safety hazard.                    recognition strategies developed by the               clarifications under the Fixing
                                                     Examples of contributing factors or                  railroad or the railroad contractor.                  America’s Surface Transportation
                                                  actions roadway workers may face or                        3. Institute procedures for mandatory              (FAST) Act. Because the policy
                                                  engage in that may have been a factor                   job safety briefings compliant with                   guidance requirement reiterates existing
                                                  in one or more roadway worker fatalities                OSHA’s regulations prior to initiating                statutes and regulations and imposes no
                                                  since 2000 while the roadway workers                    any roadway worker activity. Consistent               new requirements on recipients, FTA is
                                                  were performing work not covered by                     with OSHA’s regulations, roadway                      not soliciting public comment on this
                                                  FRA regulations include, but are not                    workers should use hazard-recognition                 policy guidance.
                                                  limited to: Ascending or descending;                    procedures to identify potential hazards              DATES: Effective Date: This policy
                                                  falling objects; electrocution; an                      in their job briefings and then determine             guidance will be effective January 12,
                                                  unanticipated energy release; slips, trips              the appropriate measures to mitigate the              2017.
                                                  and falls; hoisting or lowering an object;              identified hazards. If an unforeseen                  FOR FURTHER INFORMATION CONTACT: For
                                                  off-track equipment striking roadway                    situation develops during work                        policy guidance questions, Kimberly
                                                  workers; collisions between roadway                     performance, roadway workers should                   Gayle, Office of Budget and Policy,
                                                  maintenance machines and standing                       stop working and conduct a second job                 telephone: 202–366–1429; or email:
                                                  trains; highway vehicle collisions                      briefing to determine the appropriate                 Kimberly.Gayle@dot.gov. For legal
                                                  (vehicle to vehicle); highway vehicles                  means of mitigating the new hazard.                   questions, Dana Nifosi, Office of Chief
                                                  striking roadway workers; and                              4. Develop and apply Good Faith                    Counsel, telephone: 202–366–1936; or
                                                  environmental-related hazards                           Challenge Procedures for all roadway                  email: Dana.Nifosi@dot.gov.
                                                  (swarming bees, mudslides, heat stroke,                 workers who, in good faith, believe a
                                                  flash floods, etc.).                                    task is unsafe or an identified hazard                I. Background
                                                     FRA and the railroad industry have                   has not been mitigated.                                  The FTA is issuing this policy
                                                  witnessed success using the Good Faith                     FRA encourages railroad and railroad               guidance pursuant to Section 20013(d)
                                                  Challenge Procedures found in FRA’s                     contractor industry members to take                   of the Moving Ahead for Progress in the
                                                  regulations 5 for situations when a                     actions consistent with the preceding                 21st Century Act (MAP–21) (Pub. L.
                                                  roadway worker believes the on-track                    recommendations and any other actions                 112–141). Section 20013(d) requires the
                                                  safety procedure being used is                          that may help ensure the safety of                    Secretary of Transportation to publish
                                                  inadequate for the work being                           roadway workers. Although the primary                 policy guidance regarding how
                                                  performed. In such a situation, the                     purpose of this Safety Advisory is for                recipients of Federal financial assistance
                                                  roadway worker may remain clear of the                  railroads and railroad contractors to                 under 49 U.S.C. chapter 53 can best
                                                  track until the challenged safety issue is              apply these recommendations to                        document compliance with the
                                                  resolved without fear of retribution or                 activities that fall outside the scope of             requirements for private enterprise
                                                  retaliation. Many railroads have adopted                FRA’s safety regulations, FRA also                    participation in public transportation
                                                  Good Faith Challenge Procedures for                     encourages the industry to apply these                planning and transportation
                                                  any safety-related concern, not just                    recommendations to activities FRA’s                   improvement programs contained in
                                                  those FRA regulates. FRA recommends                     regulations govern.                                   sections 5303(i)(6), 5306(a), and
                                                  all railroads and railroad contractors                     FRA may modify this Safety                         5307(b)1 of title 49, United States Code.
                                                  adopt appropriate Good Faith Challenge                  Advisory, issue additional safety
                                                  Procedures for any recognized hazard                    advisories, or take other appropriate                 A. Statutory Requirements for Private
                                                  identified during job safety briefings or               actions necessary to ensure the safety of             Enterprise Participation
                                                  any hazard otherwise arising during the                 the Nation’s railroads, including                        Section 5303(i)(6) requires that each
                                                  course of work activities roadway                       pursuing other corrective measures                    metropolitan planning organization
                                                  worker believes requires remediation,                   under its safety laws and regulations.                (MPO) provide interested parties,
                                                  whether FRA, OSHA, or another Federal                                                                         including private providers of
                                                                                                            Issued in Washington, DC, on November
                                                  agency regulate the that hazard.                        22, 2016.                                             transportation, with a reasonable
                                                     Recommendations: In light of the                                                                           opportunity to comment on the
                                                                                                          John K. Alexy,
                                                  above discussion, and in an effort to                                                                         metropolitan transportation plan (MTP).
                                                  improve job safety briefings, improve                   Director, Office of Safety Analysis.
                                                                                                                                                                The Fixing America’s Surface
                                                  the identification and mitigation of                    [FR Doc. 2016–28558 Filed 11–25–16; 8:45 am]          Transportation (FAST) Act (Pub. L. 114–
                                                  potential safety hazards existing in the                BILLING CODE 4910–06–P                                94) amended this section to include the
                                                  working environments of roadway                                                                               following private providers: ‘‘intercity
                                                  workers, and reduce the number of                                                                             bus operators, employer-based
                                                  injuries and fatalities occurring when                  DEPARTMENT OF TRANSPORTATION                          commuting programs, such as a carpool
                                                  roadway workers are engaged in                                                                                program, vanpool program, transit
                                                                                                          Federal Transit Administration
                                                  activities outside the scope of FRA’s                                                                         benefit program, parking cash-out
                                                  safety regulations, FRA recommends                      Private Enterprise Participation                      program, shuttle program, or telework
                                                  railroads and railroad contractors:                                                                           program.’’ In addition, MPOs must
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                                                     1. Develop hazard-recognition                        AGENCY: Federal Transit Administration                develop a participation plan that defines
                                                  strategies identifying and addressing                   (FTA), DOT.
                                                  existing conditions posing actual or                    ACTION: Notice of policy guidance.                       1 FTA notes that Section 20013(d) of MAP–21

                                                  potential safety hazards, emphasizing                                                                         refers to 49 U.S.C. 5307(c); however, the private
                                                                                                          SUMMARY:  The Federal Transit                         transportation provider participation requirement is
                                                  the contributing factors or actions                                                                           contained within 5307(b). Section 3010(b) of the
                                                                                                          Administration (FTA) hereby                           Fixing America’s Surface Transportation Act makes
                                                    5 See 49 CFR 214.311 (responsibility of employers     establishes policy guidance for                       a technical correction to reference the correct
                                                  to implement Good Faith Challenge Procedures).          documenting compliance with the                       subsection.



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Document Created: 2018-02-14 08:35:29
Document Modified: 2018-02-14 08:35:29
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of Safety Advisory.
ContactMr. Joseph E. Riley, Track Specialist, Track Division, Office of Technical Oversight, FRA, 1200 New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590, (202) 493-6357.
FR Citation81 FR 85674 

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