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Railroad Workplace Safety
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 10, 2005 (Volume 70, Number 27)]
[Rules and Regulations]
[Page 7047-7050]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10fe05-17]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 214
[Docket No. FRA-2001-10426]
RIN 2130-AA48
Railroad Workplace Safety
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Interim final rule.
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SUMMARY: FRA is amending regulations on Railroad Workplace Safety to
clarify an ambiguous provision concerning the circumstances under which
life vests or buoyant work vests are required for bridge workers
working over water.
DATES: Effective Date: This rule becomes effective April 11, 2005.
Written Comments: Written comments must be received no later than
March 28, 2005. Comments received after that date will be considered to
the extent possible without incurring additional expense or delay.
ADDRESSES: You may submit comments, identified by DOT DMS Docket Number
FRA-2001-10426, by any of the following methods:
? Federal eRulemaking Portal: Go to http://www.regulations.gov. 
[[Page 7048]]
Follow the online instructions for submitting comments.
? Web site: Go to http://dms.dot.gov. Follow the
instructions for submitting comments on the DOT electronic docket site.
? Fax: 1-202-493-2251.
? Mail: Docket Management Facility, U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
? Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://dms.dot.gov, including any personal
information provided. Please see the Privacy Act heading under Regulatory
Impact, below.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to Room
PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Gordon A. Davids, Bridge Engineer,
Office of Safety, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590
(telephone: 202-493-6320); or Anna Nassif, Trial Attorney, Office of
Chief Counsel, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590
(telephone: 202-493-6166).
SUPPLEMENTARY INFORMATION:
Public Participation
The Administrative Procedure Act (5 U.S.C. 551-559) permits an
agency to dispense with notice of rulemaking when it is otherwise not
required by statute and the agency ``for good cause finds that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.'' 5 U.S.C. 553(b)(B). FRA finds that
notice and public participation are, in this case, unnecessary and
contrary to the public interest for the reasons set forth below.
These amendments do not expand the scope of the rule, nor do they
impose additional burdens on those covered by the rule. Moreover, FRA
finds that any further delay in issuance of this rule could perpetuate
confusion or inconsistencies regarding the use of personal floatation
devices in conjunction with effective fall prevention measures. FRA
believes that the identification of inconsistent safety requirements
and the noncontroversial nature of the amendments necessary to make the
requirements consistent justify the issuance of an interim final rule.
FRA will consider, however, any comments received during the post-
publication comment period before it issues a final rule in this
proceeding.
Background
On June 24, 1992, FRA issued Railroad Workplace Safety Regulations
in 49 CFR part 214. 57 FR 28127. Subsequent amendments to that
regulation have added subpart C, Roadway Worker Protection, and subpart
D, On-Track Roadway Maintenance Machines and Hi-Rail Vehicles. 61 FR
65959 (December 16, 1996), 68 FR 44388 (July 28, 2003). Additional
amendments have provided technical corrections and changes to improve
the effectiveness of the regulation.
FRA has since received a request from the Norfolk Southern Railway
Company (NS) to permit NS employees who are working on a bridge deck
over water to work without a life vest or buoyant work vest under
circumstances in which falls are effectively prevented. NS refers to
factual situations under the present regulation, where a bridge worker
who is located 12 feet or more over the ground is prevented from
falling by hand rails, walkways, or acceptable work procedures and is
therefore not required to use a personal fall arrest system. However,
if the same circumstances prevail on a bridge over water, the bridge
worker is required to wear a life vest or buoyant work vest even though
the bridge worker over water may have the same safety hand rails,
walkways, or acceptable work procedures in place as the bridge worker
has over dry land. FRA has considered this request, and has found that
the situation addressed by NS is not limited to one railroad. FRA
therefore considers it advisable to provide an industry-wide resolution
by issuing a technical amendment to the regulation.
The present regulation, in section 214.107, ``Working over or
adjacent to water'' states, in part:
(a) Bridge workers working over or adjacent to water with a
depth of four feet or more, or where the danger of drowning exists,
shall be provided and shall use life vests or buoyant work vests in
compliance with U.S. Coast Guard requirements in 46 CFR 160.047,
160.052, and 160.053. Life preservers in compliance with U.S. Coast
Guard requirements in 46 CFR 160.055 shall also be within ready
access. This section shall not apply to bridge workers using
personal fall arrest systems or safety nets that comply with this subpart.
(b) Life vests or buoyant work vests shall not be required when
bridge workers are conducting inspections that involve climbing
structures above or below the bridge deck.
The present regulation also provides for circumstances in which
bridge workers are not required to use personal fall arrest systems or
safety nets while working at heights over land because the risk of
falling is minimized by components of the bridge or by suitable work
procedures. In particular, section 214.103, ``Fall protection,
generally'' states:
(a) Except as provided in paragraphs (b) through (d) of this
section, when bridge workers work twelve feet or more above the
ground or water surface, they shall be provided and shall use a
personal fall arrest system or safety net system. All fall
protection systems required by this section shall conform to the
standards set forth in Sec. 214.105 of this subpart.
(b)(1) This section shall not apply if the installation of the
fall arrest system poses a greater risk than the work to be
performed. In any action brought by FRA to enforce the fall
protection requirements, the railroad or railroad contractor shall
have the burden of proving that the installation of such device
poses greater exposure to risk than performance of the work itself.
(2) This section shall not apply to bridge workers engaged in
inspection of railroad bridges conducted in full compliance with the
following conditions:
(i) The railroad or railroad contractor has a written program in
place that requires training in, adherence to, and use of safe
procedures associated with climbing techniques and procedures to be used;
(ii) The bridge worker to whom this exception applies has been
trained and qualified according to that program to perform bridge
inspections, has been previously and voluntarily designated to
perform inspections under the provision of that program, and has
accepted the designation;
(iii) The bridge worker to whom this exception applies is
familiar with the appropriate climbing techniques associated with
all bridge structures the bridge worker is responsible for inspecting;
(iv) The bridge worker to whom this exception applies is engaged
solely in moving on or about the bridge or observing, measuring and
recording the dimensions and condition of the bridge and its
components; and
(v) The bridge worker to whom this section applies is provided
all equipment necessary to meet the needs of safety, including any
specialized alternative systems required.
(c) This section shall not apply where bridge workers are
working on a railroad bridge equipped with walkways and railings of
sufficient height, width, and strength to prevent a fall, so long as
bridge workers do
[[Page 7049]]
not work beyond the railings, over the side of the bridge, on
ladders or other elevation devices, or where gaps or holes exist
through which a body could fall. Where used in place of fall
protection as provided for in Sec. 214.105, this paragraph (c) is
satisfied by:
(1) Walkways and railings meeting standards set forth in the
American Railway Engineering Association's Manual for Railway
Engineering; and
(2) Roadways attached to railroad bridges, provided that bridge
workers on the roadway deck work or move at a distance six feet or
more from the edge of the roadway deck, or from an opening through
which a person could fall.
(d) This section shall not apply where bridge workers are
performing repairs or inspections of a minor nature that are
completed by working exclusively between the outside rails,
including but not limited to, routine welding, spiking, anchoring,
spot surfacing, and joint bolt replacement.
The exceptions to the requirement for a personal fall arrest system
or safety net are found in paragraphs (b) through (d) of Sec. 214.103.
Sub-paragraph (b)(2), and paragraphs (c) and (d), address alternate
means of fall protection. In strict application of the regulation,
these exceptions may be used in appropriate circumstances by bridge
workers working at heights over dry land, but do not relieve bridge
workers from the requirement to use life vests or buoyant work vests
when over water, even though the risk of a fall to the water is minimized.
This inconsistency was not intended. FRA is therefore issuing this
technical amendment to resolve the inconsistency. This amendment will
permit the exceptions in Sec. 214.103 which presently only apply to
the use of personal fall arrest systems and safety nets over dry land
to also apply to the use of life vests or buoyant work vests while
working over water. Including Sec. 214.103(b)(2) and its related sub-
paragraphs concerning bridge inspectors among the exceptions in Sec.
214.107(a) makes Sec. 214.107(b) redundant. It is therefore being deleted.
This amendment will have the effect, in a common example, of
permitting a railroad track inspector, when on a bridge that is over
water and equipped with effective handrails and walkways, to replace a
joint bolt without having to wear a life vest or buoyant work vest,
without the need to have a life preserver within ready access, and
without the need for ring buoys and a boat or skiff in the water. The
amendment should also have the beneficial effect of encouraging bridge
owners to install effective fall prevention components on low bridges
over water in order to improve labor efficiency.
Section-by-Section Analysis
Section 214.107 Working Over or Adjacent to Water
This section sets forth standards for bridge workers working over
or adjacent to water. Paragraph (a) requires that bridge workers must
wear life vests or buoyant work vests in compliance with various Coast
Guard requirements, when working over water, except where bridge
workers are working with fall arrests systems or in compliance with the
provisions of Sec. 214.103(b)(2), (c) or (d). These provisions
establish exceptions to the general requirement for protection against
drowning. The exceptions include situations where there is little or no
risk of falling, since bridge workers are working on bridges with
walkways and railings, or, when on bridges with roadways, are working
more than six feet from the edge of a roadway deck or any opening
through which they could fall.
Regulatory Impact
Privacy Act
Anyone is able to search the electronic form of all comments
received into any of FRA's dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (volume 65, number 70; pages 19477-78), or you may visit
http://dms.dot.gov.
Executive Order 12866 and DOT Regulatory Policies and Procedures
This amendment clarifying the final rule has been evaluated in
accordance with existing policies and procedures and is not considered
significant under Executive Order 12866 or under DOT policies and
procedures. The minor technical changes made in this amendment will not
increase the costs or alter the benefits associated with this
regulation to any measurable degree.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of rules to assess their impact on small entities.
This amendment to the final rule clarifies existing requirements. The
changes will have no new direct or indirect economic impact on small
units of government, businesses, or other organizations. Therefore, it
is certified that this rule will not have a significant economic impact
on a substantial number of small entities under the provisions of the
Regulatory Flexibility Act.
Paperwork Reduction Act
There are no paperwork requirements associated with this amendment
of the final rule.
Environmental Impact
FRA has evaluated this amendment in accordance with its procedures
for ensuring full consideration of the environmental impact of FRA
actions, as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and DOT Order 5610.1c. The amendment meets the criteria establishing
this as a non-major action for environmental purposes.
Federalism Implications
This amendment will not have a substantial effect on the states, on
the relationship between the national government and the states, or on
the distribution of power and responsibilities among the various levels
of government. Thus, in accordance with Executive Order 13132,
preparation of a Federalism Assessment is not warranted.
Compliance With the Unfunded Mandates Reform Act of 1995
Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) each Federal agency ``shall, unless otherwise prohibited by law,
assess the effects of Federal Regulatory actions on State, local, and
tribal governments, and the private sector (other than to the extent
that such regulations incorporate requirements specifically set forth
in law).'' Sec. 201. Section 202 of the Act further requires that
``before promulgating any general notice of proposed rulemaking that is
likely to result in promulgation of any rule that includes any Federal
mandate that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of
$120,700,000 or more in any 1 year, and before promulgating any final
rule for which a general notice of proposed rulemaking was published,
the agency shall prepare a written statement * * * ``detailing the
effect on State, local and tribal governments and the private sector.
The rule issued today does not include any mandates which will result
in the expenditure, in the aggregate, of $120,700,000 or more in any
one year, and thus preparation of a statement is not required.
List of Subjects in 49 CFR Part 214
Bridges, Fall arrest equipment, Incorporation by reference,
Occupational safety and health,
[[Page 7050]]
Personal protective equipment, Railroad employees, Railroad safety.
The Interim Final Rule
? In consideration of the foregoing, FRA amends part 214 of chapter II,
subtitle B of title 49, Code of Federal Regulations, as follows:
PART 214--[AMENDED]
? 1. The authority for part 214 is revised to read as follows:
Authority: 49 U.S.C. 20103, 20107, 21301, 21304; 28 U.S.C. 2461,
note; and 49 CFR 1.49.
? 2. Section 214.107 is revised to read as follows:
Sec. 214.107 Working over or adjacent to water.
(a) Bridge workers working over or adjacent to water with a depth
of four feet or more, or where the danger of drowning exists, shall be
provided and shall use life vests or buoyant work vests in compliance
with U.S. Coast Guard requirements in 46 CFR 160.047, 160.052, and
160.053. Life preservers in compliance with U.S. Coast Guard
requirements in 46 CFR 160.055 shall also be within ready access. This
section shall not apply to bridge workers using personal fall arrest
systems or safety nets that comply with this subpart or to bridge
workers who are working under the provisions of Sec. 214.103(b)(2),
(c) or (d) of this subpart.
(b) Prior to each use, all flotation devices shall be inspected for
defects that reduce their strength or buoyancy by designated
individuals trained by the railroad or railroad contractor. Defective
units shall not be used.
(c) Where life vests are required by paragraph (a) of this section,
ring buoys with at least 90 feet of line shall be provided and readily
available for emergency rescue operations. Distance between ring buoys
shall not exceed 200 feet.
(d) Where life vests are required, at least one lifesaving skiff,
inflatable boat, or equivalent device shall be immediately available.
If it is determined by a competent person that environmental
conditions, including weather, water speed, and terrain, merit
additional protection, the skiff or boat shall be manned.
Issued in Washington, DC, on February 2, 2005.
Robert D. Jamison,
Acting Federal Railroad Administrator.
[FR Doc. 05-2560 Filed 2-9-05; 8:45 am]
BILLING CODE 4910-06-P