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Rule2024-25042

Rail Transit Roadway Worker Protection

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Published

October 31, 2024

Effective

December 2, 2024

Issuing agencies

Transportation DepartmentFederal Transit Administration

Abstract

The Federal Transit Administration (FTA) is publishing a final rule for minimum safety standards for rail transit roadway worker protection (RWP) to ensure the safe operation of public transportation systems and to prevent safety events, fatalities, and injuries to transit workers who may access the roadway in the performance of work. This final rule applies to rail transit agencies (RTAs) covered by the State Safety Oversight (SSO) program, SSO agencies (SSOAs), and rail transit workers who access the roadway to perform work. This final rule sets minimum standards for RWP program elements, including an RWP manual and track access guide; requirements for on-track safety and supervision, job safety briefings, good faith safety challenges, and reporting unsafe acts and conditions and near-misses; development and implementation of risk-based redundant protections for workers; and establishment of RWP training and qualification and RWP compliance monitoring activities. RTAs are expected to comply with these Federal standards as a baseline and use their existing Safety Management System (SMS) processes to determine any additional mitigations appropriate to address the level of RWP risk identified. This final rule requires SSOAs to oversee and enforce implementation of the RWP program requirements.

Full Text

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<title>Federal Register, Volume 89 Issue 211 (Thursday, October 31, 2024)</title>
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[Federal Register Volume 89, Number 211 (Thursday, October 31, 2024)]
[Rules and Regulations]
[Pages 87166-87225]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25042]

[[Page 87165]]

Vol. 89

Thursday,

No. 211

October 31, 2024

Part IV

Department of Transportation

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Federal Transit Administration

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49 CFR Part 671

Rail Transit Roadway Worker Protection; Final Rule

Federal Register / Vol. 89 , No. 211 / Thursday, October 31, 2024 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 671

[Docket No. FTA-2023-0024]
RIN 2132-AB41

Rail Transit Roadway Worker Protection

AGENCY: Federal Transit Administration (FTA), Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The Federal Transit Administration (FTA) is publishing a final
rule for minimum safety standards for rail transit roadway worker
protection (RWP) to ensure the safe operation of public transportation
systems and to prevent safety events, fatalities, and injuries to
transit workers who may access the roadway in the performance of work.
This final rule applies to rail transit agencies (RTAs) covered by the
State Safety Oversight (SSO) program, SSO agencies (SSOAs), and rail
transit workers who access the roadway to perform work. This final rule
sets minimum standards for RWP program elements, including an RWP
manual and track access guide; requirements for on-track safety and
supervision, job safety briefings, good faith safety challenges, and
reporting unsafe acts and conditions and near-misses; development and
implementation of risk-based redundant protections for workers; and
establishment of RWP training and qualification and RWP compliance
monitoring activities. RTAs are expected to comply with these Federal
standards as a baseline and use their existing Safety Management System
(SMS) processes to determine any additional mitigations appropriate to
address the level of RWP risk identified. This final rule requires
SSOAs to oversee and enforce implementation of the RWP program
requirements.

DATES: The effective date of this final rule is December 2, 2024.

ADDRESSES: FTA's Office of Transit Safety and Oversight (TSO) will host
a webinar to discuss the requirements of the RWP final rule. Please
visit <a href="https://www.transit.dot.gov/TSOWebinars">https://www.transit.dot.gov/TSOWebinars</a> to register for webinars
and for information about future webinars. FTA is committed to
providing equal access for all webinar participants. If you need
alternative formats, options, or services, contact <a href="/cdn-cgi/l/email-protection#bafceefb97f1d4d5cdd6dfdedddffaded5ce94ddd5cc">[email&#160;protected]</a> at least three business days prior to the event. If
you have any questions, please email <a href="/cdn-cgi/l/email-protection#b8feecf995f3d6d7cfd4dddcdfddf8dcd7cc96dfd7ce">[email&#160;protected]</a>.

FOR FURTHER INFORMATION CONTACT: For program matters, contact Ms.
Margaretta ``Mia'' Veltri, Office of Transit Safety and Oversight, FTA,
telephone at (202) 366-5094 or <a href="/cdn-cgi/l/email-protection#0b666a796c6a796e7f7f6a257d6e677f79624b6f647f256c647d">[email&#160;protected]</a>. For legal
matters, contact Ms. Emily Jessup, Attorney Advisor, FTA, telephone at
(202) 366-8907 or <a href="/cdn-cgi/l/email-protection#03666e6a6f7a2d69667070767343676c772d646c75">[email&#160;protected]</a>. Office hours are from 8:30 a.m.
to 5 p.m., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
A. Purpose and Summary of Regulatory Action
B. Statutory Authority
C. Summary of Key Provisions
D. Summary of Economic Analysis
II. Notice of Proposed Rulemaking and Response to Comments
A. General
B. Section 671.1--Purpose and Applicability
C. Section 671.3--Policy
D. Section 671.5--Definitions
E. Section 671.11--RWP Program
F. Section 671.13--RWP Manual
G. Section 671.21--Rail Transit Worker
H. Section 671.23--Transit Worker
I. Section 671.25--State Safety Oversight Agency
J. Section 671.31--Roadway Worker in Charge Requirements
K. Section 671.33--Job Safety Briefing Policies
L. Section 671.35--Lone Worker
M. Section 671.37--Good Faith Safety Challenge
N. Section 671.39--Risk-Based Redundant Protections
O. Section 671.41--RWP Training and Qualification Program
P. Section 671.43--RWP Compliance Monitoring Program
Q. Section 671.51--Recordkeeping
R. Benefits and Costs
III. Section-by-Section Analysis
IV. Regulatory Analyses and Notices

I. Executive Summary

A. Purpose and Summary of Regulatory Action

The Federal Transit Administration (FTA) has adopted the principles
and methods of Safety Management Systems (SMS) as the basis for
enhancing the safety of public transportation in the United States. As
part of its internal SMS, FTA established a Safety Risk Management
(SRM) program to proactively address safety concerns impacting the
transit industry and to systematically apply FTA's statutory oversight
authority to improve the safety of the nation's transit infrastructure
through the Public Transportation Safety Program.
The process follows a five-step approach: (1) identify safety
concerns; (2) assess safety risk; (3) develop mitigation; (4) implement
mitigation; and (5) monitor safety performance. In general, as a result
of the first two steps, FTA may develop and advance appropriate
mitigations to address a safety hazard, such as safety regulations,
general or special directives, safety advisories, or technical
assistance and training activities.
In 2019, FTA began piloting the SRM process to focus on high-
priority safety risks and identified the roadway worker protection
(RWP) safety concern as a topic for analysis. As part of FTA's
assessment of the safety risk, FTA reviewed the rail transit industry's
existing approaches to RWP. This review showed that on a national
level, these approaches do not adequately protect transit workers from
rail transit vehicles and other roadway hazards. As a result, FTA
determined that a Federal baseline RWP program is an appropriate
mitigation and is issuing this regulation to reduce fatalities and
serious injury events involving rail transit workers that must access
the roadway in the performance of their work.
This final rule requires rail transit agencies (RTAs) covered by
the State Safety Oversight (SSO) program under 49 CFR part 674 (part
674) to implement a baseline RWP program to provide a standardized and
consistent approach to protecting roadway workers industry-wide,
overseen and enforced by State Safety Oversight Agencies (SSOAs).
This final rule prohibits the use of individual rail transit
vehicle detection as a sole form of protection for workers on the
roadway. It sets requirements for RTAs to conduct a safety risk
assessment, use their existing documented SRM processes required under
the Public Transportation Agency Safety Plans (PTASP) regulation at 49
CFR part 673 (part 673), to identify and establish redundant
protections for each category of work that roadway workers perform on
the roadway or track. Redundant protections may include procedures,
such as foul time and advance warning systems, and also physical
protections to stop trains in advance of workers, such as derailers and
shunts. The SSOA must review and approve the RTA's RWP program,
including the safety risk assessment and redundant protections.
The safety risk assessment must be consistent with the RTA's Agency
Safety Plan (ASP) and the SSOA's program standard. RTAs may supplement
the safety risk assessment with engineering assessments, inputs from
the Safety Assurance process

[[Page 87167]]

established under Sec. 673.27, the results of safety event
investigations, and other SRM strategies and approaches.
To ensure effective implementation and oversight of the RWP program
and redundant protections, this final rule also requires RWP training
and compliance-monitoring activities, supplemented by near-miss
reporting and SSOA oversight and auditing.

B. Statutory Authority

Congress directed FTA to establish a Public Transportation Safety
Program in the Moving Ahead for Progress in the 21st Century Act (Pub.
L. 112-141) (MAP-21), which was reauthorized by the Fixing America's
Surface Transportation Act (FAST Act) (Pub. L. 114-94), and the
Bipartisan Infrastructure Law, enacted as the Infrastructure Investment
and Jobs Act (Pub. L. 117-58). FTA is authorized to regulate public
transportation systems that receive Federal financial assistance under
Chapter 53 of Title 49, United States Code (U.S.C.). FTA's safety
program is authorized by 49 U.S.C. 5329.
49 U.S.C. 5329(f)(7) authorizes FTA to issue rules to carry out the
Public Transportation Safety Program, and 49 U.S.C. 5329(b)(2) directs
FTA to develop and implement a National Public Transportation Safety
Plan (National Safety Plan) that includes minimum safety standards to
ensure the safe operation of public transportation systems. In 2017,
FTA published its first iteration of the National Safety Plan, which
was intended to be FTA's primary tool for communicating with the
transit industry about safety performance (82 FR 5628). Subsequently,
on April 10, 2024, FTA published an updated version of the National
Safety Plan (89 FR 25316). While FTA has previously published a
National Safety Plan document that includes only voluntary standards,
49 U.S.C. 5329(f) provides FTA with the discretion and authority to
issue mandatory minimum standards to ensure the safe operation of
public transportation systems that consider, to the extent practicable,
relevant recommendations of the National Transportation Safety Board
(NTSB), best practices standards developed by the public transportation
industry, any minimum safety standards or performance criteria being
implemented across the public transportation industry, as well as any
additional information that the Secretary determines necessary and
appropriate. FTA's RWP rule establishes minimum standards that consider
and are responsive to NTSB recommendations that focus on the need for
Federal regulation and minimum RWP requirements, best practices and
voluntary standards issued by the American Public Transportation
Association (APTA), as well as the results of research and safety event
reviews conducted by FTA.

C. Summary of Key Provisions

This final rule establishes minimum safety standards to protect
transit workers who may access the roadway in the performance of work.
The final rule requires each RTA to adopt and implement an RWP
program to improve transit worker safety that is consistent with
Federal and State safety requirements and is approved by its SSOA. The
RWP program must be documented in a dedicated RWP manual, which
includes the following: (1) terminology, abbreviations, and acronyms
used to describe the RWP program activities and requirements; (2) RWP
program elements; (3) a definition of RTA and transit worker
responsibilities for the RWP program; (4) training, qualification, and
supervision required for transit workers to access the roadway, by
labor category or type of work performed; and (5) processes and
procedures to provide adequate on-track safety for all transit workers
who may access the roadway in the performance of their work, including
safety and oversight personnel.
The RWP manual must include or incorporate by reference a track
access guide to support on-track safety. The track access guide must be
based on a physical survey of the track geometry and condition of the
transit system.
The final rule requires the RTA to completely review and update its
RWP manual at least every two years. Updates to the manual must reflect
current conditions, lessons learned in implementing the RWP program as
described in the manual, and information provided by the SSOA and FTA.
The first review must be conducted within two years of the SSOA's
initial approval of the RWP manual.
The final rule prohibits the use of individual rail transit vehicle
detection. Each RTA is required to conduct a safety risk assessment to
identify redundant protections for all workers to be included in the
RWP program and manual. Protections must be based on the category of
work being performed. Tasks demanding more attention from roadway
workers, including the use of tools and equipment, may require RTAs to
implement greater levels of protection based on the results of the
safety risk assessment.
In addition, the final rule requires comprehensive job safety
briefings, a good faith safety challenge provision, and required
reporting of near-misses. Formal training and qualification programs
are required for all workers who access the roadway. RTAs also must
adopt a program for RWP program compliance auditing and monitoring.
SSOAs are responsible for approving, overseeing, and enforcing
implementation of the requirements in the final rule for each RTA in
their jurisdiction, including the RWP manual and supporting training
and qualification programs.
Summary of Changes
FTA made revisions throughout the rule in response to comments. FTA
also made non-substantive technical edits throughout the rule to
correct citations and typographical errors and for clarity.
In response to questions about the timeframe for implementation of
the new RWP program requirements, FTA has included a provision in the
final rule that provides RTAs with one year from the effective date of
the rule to develop a compliant RWP program and obtain SSOA approval.
FTA made changes to several definitions used throughout the rule. Those
specific changes are detailed in II.D. below. FTA struck the word
``all'' from the SSOA requirement to review training and qualification
records for transit workers who must enter a track zone to perform work
at Sec. 671.25(c)(2)(i)(E).
FTA added language at Sec. 671.31(a)(5) that clarifies that the
RTA may designate a single roadway worker in charge for the entire
working limit and that, if a single roadway worker in charge is
designated over multiple work groups within a working limit, each work
group should be accompanied by an employee qualified to the level of a
roadway worker in charge who shall be responsible for direct
communication with the roadway worker in charge.
FTA updated Sec. 671.31(b)(2) to clarify that in the event of an
emergency, the roadway worker in charge must warn each roadway worker
to immediately leave the roadway and not return until on-track safety
is reestablished and a job safety briefing is completed.
At Sec. 671.33(b)(3), FTA removed references to Federal Railroad
Administration and Occupation Safety and Health Administration
guidance, and added, as clarification, the requirement for job safety
briefing elements to explicitly address the status of power and hazards
explicitly related to electrified system for RTAs with

[[Page 87168]]

electrified systems. FTA also added general emergency response
information at Sec. 671.33(b)(4) and the inclusion of an emergency
contact number for the roadway worker in charge at Sec. 671.33(b)(8).
FTA revised Sec. 671.33(c)(2) to clarify requirements for roadway
workers to individually acknowledge, in writing, both the receipt and
understanding of the job safety briefing and the requirement to use
required personal protective equipment. In addition, FTA updated the
language in Sec. 671.33(c)(3) to clarify that the roadway worker in
charge confirms in writing that they have received written
acknowledgement of the job safety briefing from roadway workers rather
than attesting that each roadway worker understands the job safety
briefing.
FTA also revised the language in Sec. 671.33(d) to require a
follow-up briefing in the event of a change in on-track safety
conditions.
The good faith safety challenge process at Sec. 671.37(c) has been
revised for clarity. The rule now explicitly clarifies that the roadway
work group must remain clear of the roadway or track zone until a
challenge and refusal is resolved.
FTA also updated Sec. 671.39(a)(2) to clarify FTA's intent that it
is the RTA's responsibility to establish redundant protections to
ensure on-track safety for multiple roadway groups within a common work
area.
FTA has revised Sec. 671.39(d)(2) to clarify that redundant
protections may include but are not limited to the listed protections.
FTA changed the frequency of the RWP Compliance Monitoring Program
reporting from monthly to quarterly (Sec. 671.43(b)(1)).

D. Summary of Economic Analysis

The final rule, which sets minimum safety standards for RWP
programs, will benefit roadway workers by reducing their risk of
fatalities and injuries. FTA analyzed national transit worker safety
data from 2008 to 2020 and identified safety events that would have
been prevented if agencies had implemented the protections required by
this final rule. On average, the rule would prevent an estimated 1.2
fatalities and 2.4 injuries per year, resulting in annual safety
benefits of $16.2 million in undiscounted 2023 dollars. To meet the
minimum safety standards, RTAs and SSOAs would incur an estimated $2.6
million in start-up costs plus $13.7 million in ongoing annual costs.
The largest ongoing annual costs are for redundant worker protections
($6.4 million) and RWP training ($5.1 million).
Table ES-1 summarizes the potential effects of the rule over a ten-
year analysis period from 2025 to 2034. In 2023 dollars, the rule would
have annualized net benefits of $2.0 million at a 2 percent discount
rate (discounted to 2025), $2.0 million at a 3 percent rate, and $1.8
million at a 7 percent rate.

Table ES-1--Summary of Economic Effects
[2023 Dollars, discounted to 2025]
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Annualized value Annualized value Annualized value
Item (2% discount (3% discount (7% discount
rate) rate) rate)
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Benefits............................................... $15,835,205 $15,681,465 $15,095,242
Costs.................................................. 13,840,028 13,721,849 13,273,086
Net benefits........................................... 1,995,177 1,959,615 1,822,156
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II. Notice of Proposed Rulemaking and Response to Comments

FTA issued a notice of proposed rulemaking (NPRM) for Rail Transit
Roadway Worker Protection (RWP) on March 25, 2024 (89 FR 20605).\1\ The
public comment period for the NPRM closed on May 24, 2024.
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\1\ Rail Transit Roadway Worker Protection, 88 FR 20605 (March
25, 2024). <a href="https://www.federalregister.gov/documents/2024/03/25/2024-06251/rail-transit-roadway-worker-protection">https://www.federalregister.gov/documents/2024/03/25/2024-06251/rail-transit-roadway-worker-protection</a>.
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FTA received comments from over 7100 unique respondents, including
RTAs, SSOAs, labor unions, industry businesses and organizations,
private individuals, and the National Transportation Safety Board
(NTSB). FTA also received ex parte comments about the rulemaking, which
are summarized in the rulemaking docket.
FTA reviewed all relevant comments and took them into consideration
when developing this final rule. FTA addresses these comments in the
corresponding sections below. Some comments were outside the scope of
this rulemaking, and FTA does not respond to comments in this final
rule that were outside the scope.
In response to comments, FTA made several changes to the final rule
which are summarized above and discussed in more detail in the
corresponding sections below.

A. General

1. Support for Regulation
Comments: FTA received 7,103 comments of support from individuals
as part of a ``response campaign'' that provided a form letter for
individuals to upload to the Federal Register along with their names
and addresses. This letter expressed strong support for FTA's proposed
rule aimed at protecting rail transit workers, including support for
preventing unsafe working conditions on the rail transit roadway,
acknowledgment that FTA's proposed rule aligns with long-standing
recommendations from the NTSB, broad concern over worker safety and
understaffing issues, and the urgency for finalizing and implementing
the new rule quickly to save lives and prevent injuries.
Some individuals personalized the form letter with additional
comments. Most of these commenters agreed that rail transit workers are
exposed to dangerous working conditions; should have the right to
refuse to work in unsafe conditions; and should be able to report
unsafe acts, conditions, and near-misses without fear of retaliation.
Other personal comments emphasized the importance of a safe working
environment. Some commenters included details about themselves or
mentioned that family members or friends worked on the rail transit
roadway. Many of these personal comments also expressed the need to
address unsafe working conditions, long hours, understaffing, and the
prioritization of profits over safety.
FTA also received comments of support from the NTSB, three SSOAs,
four RTAs, two industry associations, fourteen labor organizations, one
vendor, and multiple individuals. These commenters generally applauded
FTA for taking action to address roadway worker safety in the transit
industry and were supportive of FTA establishing standardized and
robust safety standards to protect these essential workers. Commenters
noted that the rule would signal a significant shift for

[[Page 87169]]

the industry and emphasize the importance of ensuring that tasks are
performed safely. Commenters urged FTA to act quickly to finalize this
rule and noted support for the rule despite possible increased costs.
The NTSB expressed appreciation for FTA's consideration of many of
the NTSB's safety recommendations on this topic and support for the
proposals that address specific NTSB safety recommendations.
One SSOA commenter stated that the SSOA agrees with the purpose and
intent of this proposal but suggested that RTAs should be allowed to
comply with this rule in a manner that is not obstructive to
operations. One SSOA commenter noted the important role SSOAs play in
enforcing Federal requirements through auditing, inspections,
deficiency resolution, and technical assistance. The commenter added
that the SSOA supports many of the proposed changes, but suggested
adjustments. Another SSOA commented that they are pleased that FTA
recognizes the potential need for SSOAs to prescribe more stringent
standards. The SSOA expressed support for specific requirements related
to the proposed regulation's requirements that RTAs have an RWP manual,
review and update it biennially, and share it with their SSOA. The
commenter added that moving from piecemeal updates to a biennial update
process, initial and refresher training requirements, and annual audits
would lead to greater RTA compliance with RWP programs and improved
worker safety.
An RTA commenter expressed support for the proposed requirement
that RTAs develop a track access guide for on-track safety. One
industry association commenter stated that a mandated RWP program is
something that freight industry contractors have become accustomed to
and fully recognize as an essential part of roadway worker safety.
Another industry association commenter stated that the association
supports FTA's proposed regulation where it leverages existing program
elements, when possible, to promote efficient enhancements of the
regulatory framework; increases involvement from frontline transit
workers in safety-related decision-making; promotes or requires the
meaningful use of safety data for safety-related decision-making; and
clarifies roles, responsibilities, and reporting thresholds needed to
comply with the regulation. In addition, the industry association
commenter encouraged FTA to continue to hone and clarify its regulatory
language, strengthen meaningful collaboration and communication with
agencies and organizations to develop its standards and minimum
requirements, and provide clear and consistent guidance to transit and
oversight agencies affected by the public transportation safety
regulation. Another industry organization, the American Public
Transportation Association (APTA), emphasized its support of FTA's
efforts and strongly urged FTA to utilize the APTA standard for RWP,
which it noted was recently updated and was prepared with input from a
very diverse group of RTAs and business members.
One labor organization commenter agreed with the alignment of on-
track safety regulations with the Federal Railroad Administration's
(FRA) standards, which would ensure a heightened level of safety for
workers as they carry out their daily responsibilities. Another labor
organization commenter supported FTA's recommendations for aligning
rail industry track worker safety with best-demonstrated practices that
have proven beneficial to freight service engineers, conductors, and
assistant conductors. The commenter also expressed support for FTA's
proposal to implement job safety briefings, good faith safety
challenges for workers whose safety is in jeopardy, additional formal
safety training and qualifications for railroad workers whose duties
involve being on and about the tracks, and full, formal reporting of
near-misses or close calls that occur on or near railroad tracks. The
commenter pointed out that all of the safety redundancies in the RWP
are necessary and welcome. Another labor organization commented that it
is hopeful that FTA will utilize this rulemaking process as a starting
point to establish more specific and prescriptive RWP standards in the
future. One international labor organization shared its trackwork
collective bargaining agreement (CBA) clauses and Rail Safety
Management Committee rules to assist FTA in further discussions and in
the process of implementing new safety standards to protect railway
workers and to improve the overall safety of public transport systems.
One vendor suggested that FTA use clarified guidance, circulars, or
appendices, as appropriate, to define these standards in line with
industry best practice.
An individual commenter noted that using the SSOAs as an oversight
metric provides additional scrutiny to ensure compliance with safety
standards. One individual commenter stated their strong support for
FTA's new rule protecting rail workers and commented that the rule is
necessary because of understaffing and increased assaults on transit
workers. Another individual commenter stated their support for FTA's
proposal to increase safety standards for rail transit roadway workers
and added that anyone working on a roadway or near a railroad crossing
deserves a safe work environment. One individual noted that they
particularly support the proposed requirements for redundant
protections and comprehensive safety risk assessments, which are vital
for mitigating the unique dangers rail workers face. In addition, the
commenter stated that the requirement to prohibit reliance on
individual rail transit vehicle detection as the sole form of
protection resonates with the need for multifaceted safety approaches.
One individual commenter agreed that job safety briefings; good faith
safety challenges; and reporting unsafe acts, conditions, and near-
misses would help with information transparency, allowing for increased
transit worker safety. One individual commenter noted that the
proposal's requirements to enhance job safety briefings and good faith
safety challenges and establish clear protocols for reporting unsafe
acts and conditions align with pro-union principles of empowering
workers and ensuring that their voices are heard and acted upon in the
workplace. One individual who commented noted that the proposal
emphasizes the importance of adequate training and qualifications of
rail transportation workers and the need to establish RWP-compliance-
monitoring activities.
One anonymous individual commenter stated that FTA's emphasis on
the importance of comprehensive safety protocols, notably the
prohibition of sole reliance on individual rail transit vehicle
detection, would ensure multiple layers of protection for railway
workers.
FTA Response: FTA appreciates the extensive support for this rule
from all stakeholders advocating for RWP in the rail transit industry.
FTA agrees with the many comments that support the need for this rule
due to the exposure of transit workers to dangerous working conditions
when performing duties on or near the roadway. FTA has developed this
rule to address many of the concerns that supporters have voiced in
their comments. FTA designed the rule to be flexible and to address
risks and challenges that RTAs face, as well as competing priorities
for safety in the rail transit environment. This rule is also designed
and intended to provide protections together with existing safeguards
and regulations, including the PTASP regulation (49 CFR part 673).

[[Page 87170]]

FTA also appreciates the references and suggestions that commenters
provided for rule development, including the considerations to align
this rule with FRA standards and best practices, incorporate safety
redundancies, reference the recently updated APTA standard for RWP, and
review clauses from an international labor organization trackwork CBA
and rules from the Rail Safety Management Committee to assist with
development of the new RWP safety standards. As noted by many
supporting commenters, the rule considers RWP-related NTSB
recommendations as well as existing practices implemented through the
FRA and RTAs that effectively support roadway worker safety. Some of
these practices include requiring job safety briefings, instituting
practices for good faith safety challenges to allow workers to refuse
in good faith assignments in unsafe conditions, establishing a safety
reporting program, ensuring adequate training and qualifications for
workers, and ensuring multiple layers of protection for workers.
FTA welcomes the support for the role of the SSOA in enforcing the
RWP programs and practices at RTAs including the review of the RWP
manuals and RWP program implementation. While a few SSOAs suggested
more stringent timeframes for RWP manual updates, training
requirements, and audit activities, FTA's rule does provide
opportunities for SSOAs to go above and beyond its requirements, as
appropriate, in order to effectively oversee and enforce RWP practices
at the RTAs within their jurisdiction.
FTA is encouraged to hear from a commenter that the freight
industry has become accustomed to and fully recognizes RWP as an
essential part of roadway worker safety. FTA also appreciates the
support for the track access guide for on-track safety and the rule's
application to railroad crossings.
FTA confirms that this rulemaking is a starting point for RWP and
will consider strengthening requirements through the rulemaking
process, if necessary, in the future. As requested by a number of
commenters, FTA will plan to provide further guidance on RWP practices
outside of this final rule, as well as present opportunities for
collaboration with the rail transit industry and SSOAs in sharing best
practices on RWP.
Finally, FTA is pleased to hear from many commenters that this rule
signals a positive shift for the safety of rail transit RWP.
2. Implementation Timeframe
Comments: One industry association, two RTAs, and one individual
commented on the implementation timeframe for the rule. The industry
association expressed concern with the requirement for RTAs to submit
their RWP program and manual to the SSOA for initial approval within 90
days, and strongly urged FTA to extend the deadline to at least 180
days. One RTA remarked that developing, implementing, updating, and
maintaining an RWP program, as well as addressing ``numerous downstream
effects,'' will require a substantial investment of time and effort.
The RTA noted that it is imperative that enough time is provided to
safely roll out and manage a new rules program and suggested that FTA
set an implementation period of no less than three years.
Another RTA commented that transitioning to a new RWP program could
be challenging for RTAs that will have to overhaul their existing
safety protocols and stated that the regulation should provide a
flexible timeline for implementation to allow agencies enough time to
adapt to the new requirements without compromising current safety
measures.
One individual questioned why the regulation is just now going into
effect and then asked how long it will take for everything to be put in
place.
FTA Response: FTA agrees with the commenter that 90 days would be
an insufficient timeframe to accommodate the development of the RTA's
RWP program. Further, FTA agrees that setting up an RWP program will
take time and effort and may require RTAs to revise existing programs.
FTA has included in the final rule a provision, at Sec. 671.1(d), that
provides RTAs with one year from the effective date of the rule to
develop an RWP program and manual and obtain SSOA approval. FTA
believes that this one-year implementation timeframe balances the
urgency of addressing RWP-related safety risk with the time and effort
required by RTAs and SSOAs to comply with the rule requirements. FTA
believes that the suggestion of three years is too long, given that FTA
offers agencies significant flexibilities in how to structure their RWP
programs under this rule, and recent FTA audits have revealed that
unsafe conditions and practices persist in the industry and pose a
substantial risk to workers.
FTA notes that safety-related regulations for RTAs have been in
place since the initial 49 CFR part 659 Rail Fixed Guideway Systems
State Safety Oversight rule was finalized and went into effect January
26, 1996. Since then, rail transit safety has seen improvements, and in
some cases setbacks, and regular revisions of regulations have
continued enhancing safety for the rail transit industry.
3. Standards
Comments: One labor organization, one industry association, and one
RTA provided comments related to RWP standards. The labor organization
expressed concern over FTA's management-driven approach of issuing
open-ended directives to address identified hazards instead of
promulgating specific safety standards. They recommended that FTA adopt
a standards-driven approach and develop specific standards for each
element of the RWP program following the publication of this rule.
One RTA and industry association (APTA) recommended that FTA adopt
the APTA standards because they provide a solid foundation for the
governing documents of a rail system and are meant to be scalable
without being overly prescriptive.
FTA Response: Due to the varying RTA operating characteristics and
environments, this final rule establishes minimum standards as a
baseline for rail transit RWP, which will provide important protections
for workers. While FTA did not adopt APTA's standards, in developing
this rule FTA did consider APTA's standards along with FTA's internal
Safety Risk Assessment findings, NTSB recommendations, FRA regulations,
California General Order No. 175-A regulations, common industry
practices, and recommendations from the Transit Advisory Committee for
Safety (TRACS). FTA declines to adopt wholesale any of the above-
mentioned RWP standards and views the requirements finalized in this
final rule as most appropriate for the transit industry. FTA notes that
the final rule allows RTAs and SSOAs to establish additional or more
stringent rules that are consistent with this part. FTA believes that
it would be difficult to develop standards for all RWP elements that
would be appropriate for the varying sizes of agencies subject to this
rule. However, FTA will continue to monitor RWP safety concerns after
the implementation of this rule to ensure effectiveness and may take
additional action in the future.
4. Other Comments
Comments: One SSOA, one labor organization, one individual, two
RTAs, and the NTSB provided additional

[[Page 87171]]

general comments on FTA's proposed part 671. The SSOA suggested that
FTA should use the term ``Public Transportation Agency Safety Plan
(PTASP)'' rather than ``Agency Safety Plan (ASP)'' since ``PTASP'' is
defined throughout Federal regulations and is used as an industry
standard for consistency with Federal statute and regulation.
The labor organization suggested that FTA provide a process for
RTAs to request a variance where the RTAs can propose an alternative
approach that does not compromise roadway worker safety to address any
concerns regarding flexibility (size and scope) for RTAs. The commenter
emphasized that FTA must take responsibility for enforcing standards
and discouraged RTA self-monitoring, citing that this practice has
contributed to the troubling roadway worker safety record that
necessitated the proposed rule. Similarly, regarding implementation and
oversight of the RWP requirements, an individual recommended FTA
increase monitoring and evaluation of local implementation to ensure
these measures are effective and support safety improvements for rail
transit workers.
The NTSB encouraged FTA to address Safety Recommendation R-14-41 in
future rulemaking, which recommends that FTA revise its SSO program
regulation to require all federally funded rail transit properties to
comply with certain Occupational Safety and Health Administration
(OSHA) requirements.
An RTA commenter noted that the proposed rule will impact how an
RTA handles city permits, traffic control, maintenance, and operations.
The commenter added that allowing flexibility in following the law will
help RTAs better protect transit workers in a format consistent with
the rule's intent and meet industry best practices. Another RTA asked
FTA to consider the burden that this and other additional regulations
place on small transit providers and consider that regulations that
might be manageable for larger systems could be overwhelming for small
urban and rural transit systems, especially given their limited labor
pool and high-cost operating environment. The commenter warned that
implementing new regulations before recent PTASP requirements are fully
adopted may not be sustainable with existing resources and funding
levels.
FTA Response: FTA uses the acronym ``PTASP'' to refer to the
regulation, 49 CFR part 673, and to describe associated regulatory
requirements established in part 673. FTA uses the acronym ``ASP'' to
refer to the agency safety plan required by the PTASP regulation. FTA
reiterates that, due to the varying RTA operating characteristics and
environments, this final rule establishes minimum safety standards as a
baseline for rail transit RWP and allows RTAs flexibility in developing
RWP programs. Because there is significant flexibility in how RTAs can
interpret and implement protections, FTA does not believe a formal
process for requesting a variance is necessary. Congress has delegated
direct safety oversight of RTAs to the SSOAs through 49 U.S.C. 5329(e).
Therefore, FTA believes that the SSOA is best equipped to provide
first-level oversight of compliance with this rule that goes beyond RTA
self-monitoring. FTA will continue to monitor SSOA oversight through
existing processes and will receive RTA RWP programs from the SSOAs
following their approval.
FTA confirms that it will consider the NTSB recommendation for
potential future efforts.
FTA is mindful of burdens on localities and small RTAs and
reiterates that this final rule allows RTAs flexibility in developing
RWP programs that best fit an RTA's needs based on operating
characteristics and environments. For small urban and rural systems,
FTA expects that RWP programs developed by these systems may be less
complex, and therefore may not significantly impact staffing needs. FTA
will provide additional technical assistance to smaller transit
providers regarding the expectations of the rule. Additionally, as
noted above, FTA is including in the final rule a provision that
provides RTAs a one-year implementation timeframe to finalize their RWP
programs and obtain SSOA approval, by which time all agencies subject
to PTASP will have fully adopted the updated requirements under part
673.

B. Section 671.1--Purpose and Applicability

FTA received submissions from 16 commenters related to Sec.
671.1's proposed requirements.
1. Flexibility and Scalability
Comments: FTA received comments from SSOAs, RTAs, an industry
association, and individuals regarding the flexibility and scalability
of the proposed rule. One commenter emphasized that FTA should consider
the particular needs and realities of RTAs because operating
environments and technical conditions among RTAs vary significantly.
The commenter recommended that FTA work with local safety regulators
and railroad operators before the regulation is implemented to ensure
the regulation considers local specifics. One SSOA and multiple RTAs
noted that the proposed requirements appear to focus on larger RTA
systems and the safety events occurring on those systems and
recommended that FTA consider how the size of an RTA system will impact
the RTA's implementation of RWP requirements.
Two SSOAs, several RTAs, and one industry association expressed
their view that the proposals did not sufficiently consider different
levels of risk and operating environments and may be burdensome or
unattainable for street-running streetcar systems, inclined planes, or
systems in similar environments and small and medium-sized RTAs in
small urban or rural communities. The RTAs and an SSOA emphasized the
need for scalability, including one RTA request that the rule be
flexible or that FTA grant waivers or alternatives at a scaled-down
level for RTAs that do not experience the same roadway worker risk as
heavy rail agencies. One industry association requested a bifurcated
final rule that imposes requirements that are commensurate with the
system size and level of risk, while another industry association
advocated for a nationally recognized program consistent with the
regulation with consideration for the nuances of different operations.
A commenter suggested that differentiating rule requirements between
types of rail systems will help RTAs track what is more applicable to
their systems.
FTA Response: FTA acknowledges commenters' concerns regarding the
applicability of the rule for diverse RTAs providing service in
different operating environments, under different operating plans, with
different equipment and conditions, and with varying levels of
associated risk. FTA intends the rule to be flexible enough to allow
RTAs to craft an RWP program that complies with the RWP program
requirements and fits the size and complexity of each agency. While FTA
agrees that larger and heavy rail systems may experience more frequent
RWP-related events or have a need for a more robust RWP program, FTA
believes that hazards exist on and near the roadway for all RTAs,
regardless of size. FTA has considered the difference in size and
operating environments across the country and anticipates that RWP
programs will not look the same due to the variability of needs. For
example, the requirement for redundant protections prescribes that
agencies use a safety risk assessment to implement protections that are
proportional to the

[[Page 87172]]

RTA's determined risk, which will not be the same across agencies.
Smaller systems may opt to develop RWP programs and correlated
documentation that are briefer and more basic based on the RTA's self-
assessed level of risk, while larger and more complex systems will
necessarily have more complex and detailed RWP programs.
While FTA acknowledges that a bifurcated rule could potentially
create more specific requirements based on the size of the RTA, FTA
believes it would be difficult, even in a bifurcated rule, to address
the nuances of various RTAs' operating practices and environments more
fully. FTA believes the rule is sufficiently flexible to address all
system sizes and therefore that it does not need to be bifurcated.
Likewise, FTA declines to establish a nationally recognized program
consistent with the regulation, as a national program would face the
same challenge of attempting to cover the nuances of various operators.
2. Revenue Service
Comments: FTA received comments from one RTA and one industry
association seeking clarification on whether the rule would apply to
vehicles on storage tracks and/or during the design and construction of
a system, or whether the rule applies only to vehicles in revenue
service. The industry organization recommended that the requirements
apply only when trains are in revenue service because of the difference
in risks.
FTA Response: To protect workers against various hazards, FTA
confirms that this rule applies to any rail fixed guideway public
transportation system, including those in engineering or construction.
In FTA's safety risk analysis of hazards associated with RWP, it was
determined that hazards are not limited to times when vehicles are in
revenue service. FTA is aware of RWP-related safety events that have
involved other on-track rail equipment, outside of revenue service
times and off revenue service tracks. As such, FTA has defined ``on-
track safety'' to mean freedom from the danger of being struck by a
moving rail transit vehicle or other equipment,'' which includes non-
revenue service vehicles. While there may be a difference in the level
of risk between revenue and non-revenue service, FTA believes that all
transit workers working on revenue and non-revenue service will benefit
from the protections identified by this rule.
3. Roadway Workers and Transit Workers
Comments: FTA received several comments requesting clarification of
the difference between ``roadway workers'' and ``transit workers'' and
their respective responsibilities under the regulation. One RTA
commenter recommended that the RWP program be specific to roadway
workers and not include transit workers. One vendor suggested modifying
the end of Sec. 671.1(c) to remove the language ``in the performance
of work,'' which they commented would broaden the applicability of the
rule. An RTA and an industry association suggested adding language to
Sec. 671.1(c) to specify that this part applies to transit workers who
``perform work within a track zone'' to clarify the applicability of
the rule.
FTA Response: FTA appreciates the request to clarify the difference
between the terms ``transit workers'' and ``roadway workers'' as used
throughout the rule. FTA intends for the rule to provide protection for
all transit workers who access the roadway to perform work. FTA has
defined a ``transit worker'' to mean ``any employee, contractor, or
volunteer working on behalf of the RTA or SSOA.'' In comparison, a
``roadway worker means a transit worker whose duties involve
inspection, construction, maintenance, repairs, or providing on-track
safety such as flag persons and watchpersons on or near the roadway or
right-of-way or with the potential of fouling track.'' In other words,
not all transit workers will be roadway workers. Because FTA intends
for RWP policies, process, and procedures to prevent safety events for
all transit workers, not just roadway workers, FTA disagrees with the
suggestion to make the rule specific to ``roadway workers.''
FTA declines to revise Sec. 671.1(c) as suggested by commenters
because FTA believes the language in Sec. 671.1(c) is sufficiently
clear and has identified the individuals subject to the rule
requirements throughout the regulation.
4. General
Comments: FTA received general comments on the applicability of the
rule. An industry association inquired about the applicability of this
rule to transit systems with shared corridors with FRA tracks. An SSOA
asked about the applicability of the regulation to individuals or
groups performing work on the right-of-way that are not associated with
the RTA, such as personnel from Federal, State, and local agencies, and
utilities. One RTA asked that FTA clarify how it determined that
existing measures across the nation are not adequately protecting
transit workers and whether FTA's identification of RWP as a safety
risk included data specific to streetcar or light rail systems.
FTA Response: Nothing in this final rule changes any existing FRA
requirement that may apply to a rail transit system, and this part does
not apply to rail systems that are already subject to the safety
oversight of FRA. This final rule applies to all RTAs covered by the
SSO program and RTAs that share corridors with FRA tracks should
consider this configuration when developing their RWP programs.
The rule applies to RTAs, SSOAs, and transit workers who access any
rail fixed guideway public transportation system in the performance of
their work. The rule does not apply to individuals who are trespassing,
transit workers accessing the track for reasons other than the
performance of work, or routine pedestrian activity where applicable.
Transit workers who access the roadway in the performance of their work
must follow the RTA's RWP program access and rules practices with
minimum standards established by this regulation. FTA agrees that there
are others who may need to access the track who are not transit
workers. Therefore, and in response to comments, FTA has added language
to the final rule, at Sec. 671.21(a)(8) that requires RTAs to include
procedures in their RWP programs to provide an escort, as needed, for
individuals that are not RWP-certified and do not fall into the
categories of roadway worker, transit worker, or emergency personnel,
who may need to access the track zone such as utilities workers.
FTA's internal SRM process identified RWP as a safety concern for
analysis and determined that a Federal baseline RWP program is an
appropriate mitigation. FTA considered information and data specific to
streetcar and light rail systems during the SRM process and while
drafting the NPRM and final rule.

C. Section 671.3--Policy

Comments: One SSOA and one RTA provided FTA with comments relevant
to Sec. 671.3. One commenter suggested referencing the ASP in this
section because that is the document where the RTA establishes its SMS
process. An RTA recommended adding a section into this requirement
stating that if the SSOA desires more stringent RWP-related
requirements beyond the regulation, then the SSOA must collaborate with
the RTA in the

[[Page 87173]]

development of these additional requirements.
FTA Response: FTA has included references to part 673 where
appropriate throughout this rule, including in this section at Sec.
671.3(b), where FTA requires RWP standards to be integrated into the
RTA's SMS and Safety Assurance processes. FTA declines to add to this
section a requirement for an SSOA to collaborate with the RTAs on any
additional RWP-related requirements contained in the SSO's program
standard that go beyond the requirements established in this final
rule. While FTA encourages SSOAs and RTAs to work together whenever
feasible, SSOAs play a critical role overseeing safety at RTAs, and as
such, should have latitude to prioritize safety concerns and hazards at
the RTAs they oversee. The SSO regulation at 49 CFR part 674 requires
SSOAs to establish a disposition process that defines how the SSOA will
address any comments the RTA makes with respect to the SSO program
standard and FTA expects the requirements of this final rule and part
674 requirements to operate in concert.

D. Section 671.5--Definitions

FTA received several comments, both general and specific, related
to Sec. 671.5 definitions.
1. General
Comments: One industry association commenter requested flexibility
to allow RTAs to continue to use their existing, long-standing agency
RWP terminology since transit workers have been trained on and are
familiar with the terminology unique to their operating environments.
The association expressed concern that changing RTA terminology may
introduce hazards, including the potential for miscommunication and
misapplication.
One RTA commenter recommended that FTA revise the definitions
proposed in the NPRM to be consistent with those in APTA's RWP Program
Requirements Standard (APTA RT-OP-S-106-11, Rev.2), noting that
misalignment with APTA terminology may have a broader impact beyond the
RWP manual such as on other RTA governing documents. The commenter
noted that updating existing RTA terminology, such as in procedures and
on forms, would require significant work and additional resources.
One vendor commented that RTAs should work with APTA and other
industry groups to develop common operations terminology by geography
and/or type of operations.
FTA Response: FTA acknowledges that changes to terms and
definitions may have an impact on RTAs and their existing RWP programs.
FTA encourages RTAs to use the definitions in this final rule in their
RWP programs for consistency in RWP programs across RTAs. However, the
final rule does not require RTAs to adopt these terms, and RTAs may use
their own definitions as appropriate. Through the final rule, FTA has
developed a set of common terminology and considered multiple sources
for definitions to be used in the development of this rule, including
APTA's standard. However, FTA declines to simply adopt the definitions
in APTA's RWP standard. When possible, FTA has opted to be consistent
with FRA regulations. This decision will create commonly understood
practices and terminology across the rail systems subject to Federal
oversight, helps align FTA and FRA safety priorities, and ensure
consistency for agencies that may be subject to both FRA and FTA
regulations, among other benefits.
2. Accountable Executive
Comments: FTA received a comment from an SSOA that suggested
removing ``ultimate responsibility'' from the proposed definition of
Accountable Executive, and replacing it with ``the power and
authority,'' because the meaning of ``ultimate responsibility'' is
unclear and potentially unattainable. The SSOA commenter noted that the
Board of Directors can also control or direct the human and capital
resources needed to develop, maintain, and implement the ASP.
FTA Response: FTA declines to revise the definition as it would be
inconsistent with the definition of Accountable Executive that FTA has
established in part 673 and part 674. As these terms all refer to the
same person within a transit agency, FTA believes consistency across
the regulations is imperative and is finalizing the definition as
proposed.
3. Ample Time
Comments: FTA received comments from two RTAs, one SSOA, and one
vendor regarding the proposed definition of ``ample time.'' One RTA
commenter noted that the definition implies two options for work crews
to exercise: vacating the track zone or entering a place of safety,
which is defined as ``outside of the track zone.'' This commenter
recommended that FTA review the ``place of safety'' definition in
conjunction with the ``ample time'' proposed definition to ensure the
two do not conflict. Another RTA commenter submitted a recommendation
for revising the ``ample time'' definition by replacing ``to be clear
of the track zone or in a place of safety 15 seconds before'' with ``to
occupy a place of safety for no less than 15 seconds before'' and ``at
the maximum authorized speed'' with ``at the civil speed limit.'' The
RTA noted that using ``maximum authorized speed'' could potentially
introduce human error to reduce the time needed to find safety. The
SSOA commenter suggested adding ``at least'' before ``15 seconds'' and
``or equipment'' after ``a rail transit vehicle.'' The comment from the
vendor noted support for the definition with the clarification that
``ample time'' should be calculated from the moment the roadway worker
is in a place of safety and clear of the track zone. Additionally, the
vendor asked for clarification about whether ``maximum authorized
speed,'' as used in this proposed definition, is calculated based on
line speed or a reduced speed enforced through control measures.
FTA Response: As suggested by the commenters, FTA reviewed the
definitions of ``place of safety'' and ``ample time'' and determined
they are not conflicting and notes these terms are consistent with the
FRA RWP regulation. FTA considered the suggestions to revise the
definition but declines to make changes as it views them as
unnecessary. First, FTA notes that if a rail vehicle is moving above
the authorized speed, the operator is violating the operating rules.
Second, FTA declines to add ``at least'' before ``15 seconds'' to the
definition, as the definition as proposed sufficiently establishes that
15 seconds is the baseline required time for workers to be clear of the
track zone or in a place of safety. While 15 seconds is commonly
adopted in the industry as an appropriate minimum time for workers to
clear the track zone or enter a place of safety, FTA recognizes that
some RTAs may wish to prescribe additional or more stringent time
requirements consistent with this part. FTA believes it is unnecessary
to add ``or equipment'' to the definition because the final rule
defines ``rail transit vehicle'' as ``any rolling stock.'' Therefore,
FTA is finalizing the definition as proposed. FTA declines to opine on
how to calculate ``ample time'' in this final rule but may provide
guidance to RTAs in the future. FTA notes this calculation will vary
based on an RTA's unique operating characteristics. FTA refers readers
to the ``maximum authorized speed'' definition in this rule, which is
calculated and established by an RTA based on the rail transit vehicle
control

[[Page 87174]]

system, service schedule, and operating rules.
4. Equivalent Protection
Comments: One SSOA commenter asked FTA to clarify in the definition
whether the SSOA must approve or concur with the ``equivalent
protection'' after the RTA demonstrates to the SSOA that the
alternative design, material, or method will provide equal or greater
safety for roadway workers. The commenter recommended clarification on
what happens if the SSOA does not agree with the protection.
FTA Response: FTA is finalizing the definition as proposed. FTA
believes it is unnecessary to clarify the definition because Sec.
671.39(d)(3) establishes that an equivalent protection for lone workers
must be ``approved by the SSOA.'' In accordance with an SSOA's
oversight responsibilities, FTA expects the SSOA to exercise judgment
and authority in the review and approval of the RTA's RWP program
elements. In the event the SSOA does not agree with the RTA's proposed
equivalent protection in lieu of foul time for lone workers, the SSOA
must notify the RTA expeditiously so that the RTA may propose revisions
or an alternate equivalent protection that both parties agree is
adequate.
5. Flag Person
Comments: One RTA and one industry association recommended that FTA
revise the proposed definition of ``flag person'' by changing
``designated by the RTA'' to ``designated by the Roadway Worker in
Charge.'' Both commenters noted this would further clarify that the
roadway worker in charge is the authority for safety while overseeing
an active work zone and is typically the one to designate a qualified
transit worker as a flag person. The industry association commenter
added that a designated flag person should be able to perform work done
by other crew members and not be restricted to solely flagging.
Otherwise, RTAs will need additional personnel on every work crew,
which is overly burdensome and inefficient.
FTA Response: In response to these comments, FTA has revised the
definition of ``flag person'' to provide additional flexibility for the
designation of a flag person across the diverse operating
characteristics of rail fixed guideway public transportation systems
and notes that the revised definition supports the designation of a
flag person by the roadway worker in charge. FTA disagrees that a flag
person should be able to perform other work while flagging. FTA
believes it is necessary for the flag person to be engaged solely in
performing the flagging function to ensure the on-track safety of the
roadway work group. Even minor tasks risk diverting a flagger's
attention, which increases the risk that they may err in their flagging
duties. Flaggers also must be prepared to respond immediately to novel
hazards or quickly changing situations and should not be engaged in any
tasks that may divert their focus or delay their reaction time. In
previous safety incidences, it is clear that undefined roles have
resulted in communication breakdowns, with very serious consequences.
In accordance with Sec. 671.31(a)(4) a roadway worker in charge
serves in the function of maintaining on-track safety for members of
the roadway group. FTA notes that, in the function of maintaining on-
track safety, a roadway worker in change may perform flagging duties in
some situations. When a roadway worker in charge performs flagging
duties, they cannot perform other duties. If a roadway worker in charge
performing flagging duties needs to respond to a work crew issue, prior
to responding, the roadway worker in charge must suspend flagging
activity by stopping work, designating another flag person, or taking
other action. While a roadway worker in charge position carries
considerably more training experience and qualification than a flag
person, FTA understands that in some situations a roadway worker in
charge may carry out flagging duties as described above. In these
scenarios, FTA expects that the roadway worker in charge would perform
their other duties such as providing the job safety briefing prior to
fouling the track and would perform the associated recordkeeping tasks
prior to, and after, flagging duties are complete.
6. Foul Time Protection
Comments: Three commenters suggested revisions to the proposed
definition of ``foul time protection.'' One SSOA commenter suggested
adding ``RTA designated'' in front of the first instance of ``roadway
worker.'' One RTA commenter suggested adding the following: ``on
controlled track when that work will not disturb the track or third
rail structure in a manner that would prevent movements at normal
speeds'' after ``working limits,'' ``qualified'' in front of the first
instance of ``roadway worker,'' and ``controlled'' in front of
``track.'' They also suggested replacing ``will be authorized to
operate'' with ``will operate.'' One vendor recommended adding ``for a
defined time period'' after ``working limits,'' ``and issued
authority'' after ``notified,'' ``to occupy a specific segment of track
under which'' after ``control center,'' and ``or on-track equipment''
after ``no rail transit vehicles.''
FTA Response: FTA declines to make any of the recommended changes
as they are too specific given the varied complexities in the operating
characteristics of the rail fixed guideway public transportation
systems this rule addresses and are not necessary for clarity of
purpose in this final rule. Therefore, FTA is finalizing the definition
as proposed.
7. Fouling a Track
Comments: FTA received comments from three RTAs regarding the
proposed definition of ``fouling a track.'' One RTA commenter asked if
FTA will also define the term ``proximity'' as used in the definition.
One RTA commenter recommended adopting the definition of ``fouling a
track'' from 49 CFR part 214. The commenter noted that based on the
proposed definitions of ``fouling a track'' and ``track zone,'' the
distance from the running rail considered to be ``fouling the track''
would increase from four feet to six feet. The commenter added that
this may require protection for some inspection and maintenance
activities that currently do not need it. In addition, the commenter
suggested that if these two proposed definitions become the standard,
passengers would be fouling the track while standing behind the tactile
warning strip. One RTA commenter recommended that FTA incorporate a
standard distance for ``fouling a track,'' such as four feet from the
nearest running rail or require RTAs to establish a set distance based
on their fleets.
FTA Response: In response to comments, FTA has revised the
definition of ``fouling a track'' in the final rule by adding
``typically within four feet of the outside rail on both sides of any
track'' and has removed the last sentence of the proposed definition
for clarity. The distance and language are adopted from the
recommendations of the commenters and are consistent with FRA
requirements in 49 CFR 214, which considers an individual or item of
equipment to be fouling the track if ``within four feet'' of the rail.
However, FTA opted to use the term ``typically,'' as FTA intends for
RTAs to have flexibility to define greater distances, as needed. FTA
has removed any distance language from the definition of ``track
zone,'' and instead has included distance-related language in the
definition of ``fouling a track'' to further parallel the definitional
approach used

[[Page 87175]]

by the FRA and recommended by the commenters.
8. Individual Rail Transit Vehicle Detection
Comments: One RTA and one SSOA commented on the proposed definition
of ``individual rail transit vehicle detection.'' The RTA commenter
noted that including lone worker provisions in the definition
contradicts the proposed requirement regarding redundant protection.
The SSOA commenter suggested rewording the proposed definition for
clarity by adding ``information on'' before ``approaching rail transit
vehicles,'' removing ``and leaving the track,'' and changing ``in ample
time'' to ``within ample time.''
FTA Response: FTA intends for this definition to describe the
practice of relying on an individual to detect approaching vehicles or
equipment and does not believe it conflicts with the requirements for
redundant protections. FTA declines to revise the definition as
suggested because it does not believe that the suggested revisions
would make the definition clearer. Since individual rail transit
vehicle detection is a commonly understood term in the industry, FTA
has opted to adopt the FRA definition of this term and is finalizing
the definition as proposed.
9. Job Safety Briefing
Comments: FTA received comments from several commenters, including
the NTSB, one RTA, one SSOA, and two vendors, regarding the proposed
definition of ``job safety briefing.'' The NTSB expressed concern that
the definition allows virtual job safety briefings without providing
limitations for when RTAs can employ them and urged FTA to indicate
when RTAs are permitted to conduct virtual job safety briefings. A
vendor recommended adding for emphasis, ``including the on-track safety
being provided'' after ``the protections to eliminate or protect
against those hazards.'' One SSOA commenter suggested rewording the
definition to, ``Job safety briefing means a meeting conducted by the
RTA designated Roadway Worker in Charge that addresses the requirements
of this part.'' The commenter noted that, if the regulation refers to
the ``requirements of this part'' at the end of the definition, it is
unnecessary to include some of the requirements within the definition.
The commenter added that the definition also creates confusion by
outlining only some of the requirements when all the requirements are
important. Further, the commenter suggested that FTA clarify in the
regulation where and when a job safety briefing should be conducted
rather than in the definition. One vendor commenter suggested that FTA
clarify in the definition that a job safety briefing is conducted prior
to commencing work or fouling the track because the information
conveyed in a briefing is critical to safely fouling a track.
FTA also received a comment from an RTA regarding the use of ``job
safety briefing'' compared with ``roadway job safety briefing.''
FTA Response: While FTA understands the concern regarding virtual
job safety briefings, the final rule permits virtual job safety
briefings to account for situations where a roadway worker in charge is
not physically located with a crew or lone worker. This may include
situations where a lone worker calls in to receive a job safety
briefing or where a work crew may be spread out over a larger working
limit. FTA believes this flexibility is necessary for the unique
operating environments of the RTAs covered by this rule and will help
ensure that job safety briefings are provided. FTA leaves it to the
RTAs to determine when a virtual briefing is permissible, and each RTA
may establish its own limitations as necessary. FTA declines to adopt
suggested revisions to the definition because FTA believes that the
language as it is written is inclusive of all topics relating to the
protections that may be necessary for on-track safety, and emphasis is
not needed. FTA declines to remove the words ``requirements of this
part'' as it makes it clear that the definition of ``job safety
briefing'' is inclusive of all requirements specified elsewhere in the
rule. The requirements of a job safety briefing and its use are
included throughout the rule and not every aspect of these requirements
can be captured within the definition. Details on the particular
circumstances or events that may require a roadway worker in charge to
provide the job safety briefing are included in the relevant sections
of the rule, including Sec. 671.31(b)(1), which describes when the
roadway worker in charge must provide a job safety briefing. FTA also
declines to revise the term ``job safety briefing'' to ``roadway job
safety briefing'' because FTA intends to cover all individuals
responsible for on-track safety or who are required to access the track
zone to perform work and does not believe the suggested addition helps
provide clarity.
10. Lone Worker
Comments: One RTA asked whether rail supervisors perform activities
that fall into the lone worker category, and if so, should rail
supervisors also be qualified as lone workers. This RTA commenter also
requested clarification regarding the definition of ``Lone Worker'' and
its implications related to brief track access (under 1 minute in
duration).
FTA Response: If a rail supervisor is performing duties that fit
the ``lone worker'' definition of ``an individual roadway worker who is
not afforded on-track safety by another roadway worker, who is not a
member of a roadway work group, and who is not engaged in a common task
with another roadway worker,'' then the rail supervisor is a ``lone
worker'' and must have the appropriate qualifications. The provisions
in Sec. 671.35 apply to lone workers as a subclassification of roadway
workers, whose duties involve inspection, construction, maintenance,
repairs, or providing on-track safety, such as flag persons and
watchpersons, on or near the roadway or right-of-way or with the
potential of fouling track. Transit workers who are not roadway workers
and who must momentarily access the roadway in the performance of work
are covered under the RWP program under Sec. 671.23(b). Individual
transit workers may only foul the track in the performance of work once
they have received the appropriate permissions and redundant
protections, such as foul time, that have been established as specified
in the RWP manual. However, individual transit workers fouling the
track momentarily in the performance of work are not roadway workers or
lone workers and, therefore, are not subject to Sec. 671.35
provisions.
11. Maximum Authorized Speed
Comments: FTA received two comments on the proposed definition of
``maximum authorized speed.'' One RTA proposed that FTA change the
definition to ``the highest speed permitted for the movement of trains
permanently established by timetable/special instructions.'' One vendor
requested FTA clarify whether an operating rule requiring speed
reduction when personnel are trackside would be considered the
``maximum authorized speed'' per this definition.
FTA Response: FTA agrees that the maximum authorized speed includes
the highest speed permitted on the rail transit system and therefore a
definitional change is not necessary. This speed could be determined by
the RTA's design or engineering; it could be enforced by the train
control system; or it could be specified in procedures, operating
requirements, and timetables. FTA is finalizing the definition as
proposed to ensure the highest or

[[Page 87176]]

maximum speed permitted on the system is used, wherever and however it
may be specified, when calculating ample time. In response to the
vendor, FTA confirms that the maximum authorized speed applies to the
highest speed permitted for the movement of rail transit vehicles on
the system, or part of the system, but does not extend to a general
operating rule requiring speed reduction when personnel are trackside,
unless that speed reduction was required for the entire system, or part
of the system, not just when workers are encountered.
12. Minor Tasks
Comments: FTA received comments about the proposed definition of
``minor tasks'' from one SSOA, one industry association, and one
vendor. The SSOA commenter noted that FTA should clarify in the
definition whether it intends to allow the use of individual rail
transit vehicle detection for minor tasks. The comment from the
industry association recommended that FTA change the definition to make
clear that if a roadway worker performing a task with a tool can
visually assess their surroundings every five seconds, the task remains
a minor task under this regulation. The vendor also asked FTA to
clarify the definition of ``tool'' because certain necessary inspection
devices, such as a tape measure or track gauge, could be considered
tools. The vendor recommended that minor tasks could include, but need
not be limited to, visually inspecting, examining, or patrolling on a
track. These tasks do not use tools and allow workers to hear and
visually assess their surroundings regularly. The vendor recommended
that ``can hear'' be added to the ``minor task'' definition because
hearing is critical to receiving immediate notice of train movement.
Further, the vendor recommended that a minor task should be defined
based on a safety risk assessment of the task, which is necessary to
determine whether a worker performing the task can assess their
surroundings every five seconds.
FTA Response: FTA does not believe that it is necessary to provide
greater clarity regarding the use of individual rail transit vehicle
detection while conducting minor tasks within the definition because,
as stated in Sec. 671.21, this rule prohibits the use of individual
rail transit vehicle detection as the only form of protection in the
track zone. FTA confirms that as defined, a ``minor task'' is one that
does not include the use of tools, which would include items such as a
track gauge as suggested by the commenter. However, Sec. 671.35 allows
for lone workers to perform minor tasks or routine inspections. Routine
inspections do allow for the use of common inspection devices, such as
tape measures or rail gauges, that do not impact a worker's ability to
assess their surroundings at least every five seconds. Additionally,
FTA agrees with the vendor's recommendation to revise the definition to
specify that minor tasks should not prevent a transit worker from being
able to assess their surroundings through what they hear. Therefore, in
response to this comment, FTA has revised the definition of ``minor
tasks'' to include ``hear and'' before ``visually assess'' to
incorporate this aspect of awareness. FTA disagrees with the vendor's
recommendation to define a minor task based on a safety risk assessment
of the task. The range of tasks that may fall within this description
are numerous. Performing a safety risk assessment on each potential
situation would be, at times, onerous. Agencies are encouraged to
conduct safety risk assessments whenever they deem them necessary, but
FTA declines to require RTAs to adopt this approach across the board
for determining what constitutes a minor task in order to reduce the
burden of implementing these new requirements.
13. Near-Miss
Comments: One SSOA, two RTAs, and one vendor submitted comments
regarding the proposed definition of ``near-miss.'' A vendor suggested
FTA adopt a definition more specific to this rule, such as that
provided by APTA in its ``Roadway Worker Near-Miss Reporting
Requirements'' standard. The SSOA commenter stated the definition is
ambiguous and needs clarity and suggested that FTA consider using a
definition more in line with the OSHA definition. The SSOA stated that
additional clarity in the definition would help an RTA more effectively
report near-misses and limit under- or over-reporting events due to
doubt about the definition and how to apply it and also would help
SSOAs administer and enforce the regulation, minimize disputes between
SSOAs and RTAs, and facilitate consistent application across the
States. One RTA noted that the proposed definition of ``near-miss'' is
somewhat generic and provides too little detail. The commenter
recommended that FTA adopt the National Safety Council (NSC)
definition, ``an unplanned event that doesn't result in injury or death
but could have.'' One RTA commented that the definition is highly
subjective, and RTAs will apply it inconsistently because a transit
worker's interpretation of a near-miss may not necessarily align with
the agency's interpretation. The commenter asked FTA to consider
providing guidance to help RTAs navigate potential discrepancies.
FTA Response: FTA appreciates the comments recommending that FTA
add more detail and specificity to the definition or adopt one of the
alternative suggested definitions; however, FTA declines to make any
changes in order to maintain consistency with the definition of ``near-
miss'' used in 49 CFR part 673. FTA believes this consistency is
necessary as near-miss information will be relevant to an agency's SMS,
as required under part 673 of this chapter. FTA recognizes that the
definition of near-miss is not lengthy; this definition is intended to
allow RTAs to use their own discretion and judgment to determine when
an avoided safety event was narrowly missed and thus constitutes a
near-miss. FTA also acknowledges that what constitutes a near-miss for
one agency may be different for another, due to system configurations
and other factors. FTA confirms the agency's intent to provide
technical assistance and guidance on the final rule, including how to
identify near-miss situations. FTA recognizes the inherent challenges
in defining a term such as ``near-miss,'' which is intended to include
events with outcomes that did not occur. Necessarily, such terms will
rely on some level of subjectivity or interpretation, and FTA
encourages RTAs to work closely with frontline staff to educate
personnel on near-misses and the procedures associated with the RTA's
transit worker safety reporting program required in 49 CFR part 673.
14. On-Track Safety
Comments: FTA received comments from one SSOA, one RTA, and one
vendor regarding the proposed definition of ``on-track safety.'' The
SSOA commenter suggested that FTA revise the proposed definition by
removing the words ``a state of'' before the word ``freedom'' to
provide clarity. The RTA commenter recommended FTA adopt APTA's
definition of ``on-track safety'' from the ``Roadway Worker Program
Requirements'' standard. The vendor commented that limiting the
definition solely to vehicle-based hazards may exclude other
significant hazards, such as electrical or switch movement. The
commenter requested that FTA clarify whether ``operating and safety
rules that govern track occupancy'' are intended to cover these other
types of hazards.
FTA Response: FTA intends for ``on-track safety'' to encompass all
hazards a

[[Page 87177]]

worker may encounter while working on the track roadway, including
electrical and switch movement, as applicable to the RTA's operating
environment. In response to the comments, FTA has updated the
definition of on-track safety to include ``other on-track hazards'' for
clarity. FTA declines to revise the definition further or adopt the
APTA definition because FTA believes the definition in the final rule
is sufficiently clear, and notes that it is consistent with FRA's
definition of ``on-track safety.''
15. Place of Safety
Comments: Three RTAs, one industry association, and one vendor
submitted comments on the proposed definition of ``place of safety.''
An RTA recommended FTA adopt APTA's definition of ``place of safety''
from the ``Roadway Worker Program Requirements'' standard. Another RTA
commenter suggested FTA define ``place of safety'' as a ``location
within the roadway but outside the dynamic envelope of rail vehicles,
to include at least four feet from the nearest running rail.'' The
commenter added that the distance FTA defines in ``fouling a track''
should be used in the ``place of safety'' definition. One RTA commenter
and an industry association commenter recommended that FTA revise the
definition by removing ``outside the track zone.'' The commenters
suggested that this change would better suit RTAs with median street-
running alignments that will find it impossible to identify a ``place
of safety'' that is ``outside the track zone'' such as segments of rail
alignment that are flanked by traffic lanes on both sides of the
tracks. The vendor commenter agreed with the proposed definition of
``place of safety;'' however, they pointed out that the proposed
definition of ``track zone'' currently suggests that ``places of
safety'' within six feet of the track may be within the track zone.
FTA Response: FTA is finalizing the proposed definition without
change. Due to the many varied configurations of rail transit systems,
FTA believes that the definition balances the need to ensure safe
egress for workers with the need to ensure that terminology can apply
to a variety of different systems.
FTA does wish to clarify that ``place of safety'' includes cut-outs
because these are areas of refuge safe from train passage. As for the
definition of ``place of safety'' referencing the condition of being
safely ``outside of the track zone,'' several commenters suggested
modifications to the term ``track zone'' for clarity. FTA considers a
``place of safety'' as being outside of the track zone and therefore
ensuring workers are safe from train vehicles and other rail hazards
directly related to rail operations. With regard to other hazards, like
nearby passing traffic, FTA expects RTAs to effectively protect workers
from these external but real hazards near to and potentially impacting
the track right-of-way and associated work when identifying places of
safety. FTA has revised the definition of ``track zone'' (see Section
II.D.26) by removing ``typically an area within six feet of the outside
rail on both sides of any track,'' and adding proximity language to the
definition of ``fouling a track'' to better align with FRA's
definitional approach and to provide flexibility to RTAs (see Section
II.D.7).
16. Rail Transit Vehicle
Comments: One SSOA commenter noted apparent inconsistency
throughout the proposed rule's definitions regarding FTA's use of the
terms ``rail transit vehicle'' or ``equipment'' and noted that
sometimes both terms are used in a definition and sometimes not. The
commenter noted that FTA did not define ``rail transit equipment'' and
asked if the equipment used by an RTA contractor is included in the
meaning of the term ``equipment.''
FTA Response: Definitions that reference rail transit vehicles in
the context of ensuring workers have the necessary time and sight
distance to be sufficiently clear of moving vehicles do not include the
term ``equipment.'' These definitions are the following: ``ample
time,'' ``foul time protection,'' ``maximum authorized speed,'' and
``minor tasks.'' On-track equipment other than rolling stock, such as
machinery or tools, may still pose safety risks and are referenced in
other definitions throughout this section as relevant. As stated in the
definition, ``rail transit vehicle'' includes ``any rolling stock used
on a rail fixed guideway public transportation system.'' This includes
all vehicles used by contractors as well as by the RTA employees.
17. Rail Transit Vehicle Approach Warning
Comments: One RTA commented on the proposed definition of ``rail
transit vehicle approach warning'' and suggested FTA use the term
``train'' rather than ``rail transit vehicle.''
FTA Response: FTA declines to adopt this change out of
consideration for and to encompass the various terms and equipment used
in the rail transit industry including light rail vehicles, streetcars,
inclined plane cars, cable cars, and others.
18. Redundant Protection
Comments: One RTA and one vendor submitted comments regarding the
definition of ``redundant protection.'' The RTA commenter asked FTA to
clarify what constitutes ``procedural'' protection. The commenter
expressed that the proposed definition allows too much room for
subjectivity, leading to inconsistent application and conflicts between
RTAs and SSOAs. Further, the commenter noted that although the proposed
requirement at Sec. 671.39(d) includes a list of types of redundant
protections, most of which appear to be procedural, the term inherently
encompasses much more than the list suggests. The vendor commenter
recommended that FTA reword the definition of ``redundant protection''
if this type of protection must encompass all roadway workers. The
commenter suggested FTA replace in the definition ``individual rail
transit vehicle detection'' with ``the minimum levels of protection
specified in this subpart.''
FTA Response: FTA will provide more information on ``procedural''
protections in the future. The list of ``redundant protections'' in the
rule at Sec. 671.39 is not meant to be exhaustive or limiting, but
rather serve as a list of common examples. The rule allows flexibility
for RTAs to design programs with effective redundant protections that
work for their operations and environments, thus a degree of
subjectivity is intended within this definition. FTA declines to amend
the definition as the current definition makes clear that redundant
protections are intended to ensure the safety of roadway workers. FTA
also believes it is necessary to reference the limitations on
individual rail transit vehicle detection within this definition to
ensure RTAs, who commonly use this practice, understand the
requirements for building out additional protections in relation to
that practice.
19. Roadway
Comments: FTA received comments from one SSOA regarding the
proposed definition of ``roadway.'' The SSOA commenter asked if the
term includes maintenance facilities as they are ``support
infrastructure'' for the movement of rail transit vehicles.
FTA Response: FTA does not intend for the term ``roadway'' in this
rule to apply to maintenance structures, but it does apply to all track
outside of those structures.

[[Page 87178]]

20. Roadway Maintenance Machine
Comments: One SSOA and one RTA commented on the proposed definition
of ``roadway maintenance machine.'' The SSOA commenter suggested FTA
change the term from ``roadway maintenance machine'' to ``roadway
machine'' if, per the definition, this equipment is used for other
activities beyond maintenance. The RTA commenter recommended that FTA
revise the definition of roadway maintenance machine by adding
``powered by any means of energy rather than hand power'' after
``device'' and changing ``rail transit track'' to ``railroad track.''
FTA Response: FTA disagrees that the definition of ``roadway
maintenance machine'' needs revision. ``Roadway maintenance machine''
encompasses vehicles that support maintenance broadly, to include
repair, construction, or inspection, as listed in the definition. A
roadway maintenance machine encompasses a broad spectrum of machinery,
from a hi-rail inspection vehicle to track vacuum equipment, which may
be owned by the RTA or by contractors authorized to work on the
roadway. Further, FTA does not find it necessary to exclude machinery
by power mode for this definition. The roadway maintenance machine is
used in this rule in relation to the RWP training and qualification
program and job safety briefings, and in both contexts the term could
potentially apply to hand-powered machinery. FTA will also keep the
term ``rail transit track'' in the definition for clarity between rail
transit track and other track.
21. Roadway Worker
Comments: Three RTAs submitted comments regarding the proposed
definition of ``roadway worker.'' One RTA commenter asked FTA to define
``construction'' and how work in construction areas interacts with
these proposed rules in pre-revenue and revenue service areas, because
a construction area can be a very different environment than revenue
service. The commenter recommended FTA exclude construction areas from
the rule, as OSHA and other Federal guidelines already govern
construction safety and argued that including construction contractors
as roadway workers would unnecessarily burden RTAs. In support of this
argument, the RTA commenter recommended that FTA add ``in revenue
service segments'' to the end of the roadway worker definition to
exclude workers in a non-service area. The commenter also suggested
that FTA adopt APTA's definition from its ``Roadway Worker Program
Requirements'' standard. Another RTA commented that the definition of
roadway worker should be limited to anyone doing work (inspection,
maintenance, or construction) in the track zone or providing protection
for roadway workers in the track zone. One RTA argued that FTA should
not use ``transit workers'' in the definition as there are alternate
means of protection in place for those who do not meet the definition
of a roadway worker. The commenter suggested the following revised
definition for roadway worker: ``An employee of a railroad or a
contractor to a railroad whose duties include inspection, construction,
maintenance, or repair of railroad track, bridges, roadway, signal and
communication systems, electric traction systems, roadway facilities or
maintenance machinery on or near track or with the potential of fouling
a track, and watchperson/lookout.''
FTA Response: FTA declines to remove transit workers whose duties
include construction from the definition of ``roadway worker.'' FTA's
proposed definition aligns with the FRA definition of roadway worker
and the comprehensive protection it provides. This means a ``roadway
worker'' includes an individual working in roadway construction in pre-
revenue environments, and each RTA will need to ensure RWP during pre-
revenue and revenue phases. FTA believes this is necessary as pre-
revenue work may involve unique risks, including but not limited to,
working alongside non-revenue service equipment or working adjacent to
RTA infrastructure. For pre-revenue phases, RTAs should implement the
RWP program and worker protections in a manner that is appropriate to
address the specific risks of that working environment.
FTA considered adopting APTA's definition of roadway worker from
its ``Roadway Worker Program Requirements'' standard; however, FTA
declined to do so because it is narrower. FTA's definition is
intentionally broader than APTA's roadway worker definition, and all
workers encompassed under APTA's definition will also fall under FTA's
definition, including contractors. Likewise, FTA declines to further
limit the definition of roadway worker to either eliminate the phrase
``transit worker'' or adjust the enumerated duties of a roadway worker.
The definition of roadway worker in this rule was designed to protect
any worker who may be exposed to hazards on or near the tracks while in
the performance of work. FTA designed this definition to encompass a
wide range of potential job duties, and to ensure consistency across
agencies. FTA has further clarified the relationship in this rule
between the term transit worker and the term roadway worker in response
to the comments on Sec. 671.1. FTA is finalizing the definition of
roadway worker as proposed.
22. Roadway Worker in Charge
Comments: FTA received comments regarding the proposed definition
of ``roadway worker in charge'' from one SSOA, two RTAs, and one
industry association. The SSOA commenter suggested that FTA add
``protection and designated in this role by the RTA'' to the end of the
definition. One RTA commenter recommended FTA add ``and may perform
work that is part of the work crew's responsibilities'' to the end of
the definition, arguing this revision would clarify that a roadway
worker in charge may perform duties such as overseeing their work crew.
Another RTA commenter suggested the following definition: ``A qualified
employee who is responsible for establishing on-track safety for
roadway work crews.'' An industry association commenter recommended
adding ``and may perform work that is part of the work crew's
responsibilities, including flagging for trains'' to the end of the
definition as it would clarify that the roadway worker in charge can
flag trains, making a dedicated flagger unnecessary, especially for
RTAs that require a flagger and a dedicated watchperson.
FTA Response: FTA declines to incorporate suggestions to amend the
definition because Sec. 671.31 sufficiently addresses the RTA's role
in designating the roadway worker in charge. Similarly, Sec.
671.31(a)(4) requires a roadway worker in charge to serve in the role
of maintaining on-track safety for all members of the roadway work
group and perform no other unrelated job function while designated for
duty; therefore, the recommendation to add ``and may perform work that
is part of the work crew's responsibilities'' would be inconsistent
with FTA's intent. The roadway worker in charge may only perform
responsibilities related to maintaining on-track safety. This may
include safety roles, such as flagging, though FTA declines to add
``flagging for trains'' to the definition of roadway worker in charge,
as this responsibility would be ancillary and determined on a case-by-
case basis. FTA also declines to add ``safety for roadway work crews''
to the end of this definition. FTA does not think it necessary to
caveat that on-track safety be established for work crews only, as on-
track safety in some

[[Page 87179]]

instances has wider implications for people such as transit operators
or pedestrians.
23. Roadway Worker Protection
Comments: One RTA commenter argued that the proposed definition of
``roadway worker protection'' should refer to the protection from
hazards associated with moving rail vehicles and not be so broad by
mentioning ``safety events.'' The commenter added that RWP should only
pertain to roadway workers, not transit workers. Further, the commenter
noted that the definition specifies that RWP protects workers on the
roadway, which they argued is vague and could be interpreted to mean
that RWP is always required whenever a transit worker is on the
roadway.
FTA Response: As recommended by the NTSB, FTA intends for RWP to
address more safety events than just hazards associated with moving
rail vehicles. FTA intends for the roadway worker protections
established by this rule to protect all transit workers while they
perform approved duties on the track roadway; therefore, FTA declines
to amend the definition to only cover roadway workers. It is FTA's
intent that safety protections established in this rule will provide
comprehensive safety coverage for workers on the roadway, irrespective
of job titles.
24. State Safety Oversight Agency
Comments: One SSOA commented that the proposed definition of
``State Safety Oversight Agency (SSOA)'' does not include the statutory
reference to 49 U.S.C. 5329(k) that was included in the definition of
``State Safety Oversight Agency (SSOA)'' that was proposed in the NPRM
for 49 CFR part 673 (PTASP regulation).
FTA Response: FTA has revised the definition of ``State Safety
Oversight Agency'' in the final rule to include the statutory reference
to 49 U.S.C. 5329(k).
25. Track Access Guide
Comments: Two RTAs commented on the proposed definition of ``track
access guide.'' One commenter recommended that FTA change the term from
``track access'' to ``physical characteristics,'' as many RTAs use
``track access'' in reference to their track allocation process. One
commenter noted the definition is excessively broad, particularly the
requirement to describe the physical characteristics of track areas
with loud noise or potential environmental conditions.
FTA Response: Because FTA allows RTAs the flexibility to use their
existing terms as long as the definitions do not conflict with the
definitions in this final rule, FTA declines to change the term ``track
access guide'' as suggested. FTA believes a broad definition is
necessary to account for a wide range of systems and ensure
inclusivity. FTA also believes this broad definition is balanced by the
minimum requirements of the track access guide, which are clearly
enumerated in Sec. 671.13(d)(1-7). RTAs may design their track access
guides to address the components in this definition, and the
requirements of Sec. 671.13, to a degree of detail that is appropriate
based on their respective systems.
26. Track Zone
Comments: FTA received comments from multiple commenters, including
the NTSB, five RTAs, and two vendors, regarding the proposed definition
of ``track zone.'' The NTSB expressed concern that, within the
definition, the track zone is identified by transit workers rather than
the RTAs and encouraged FTA to update its definition of track zone to
state that RTAs identify the track zone, not transit workers. NTSB
noted in their comment that an NTSB investigation determined that the
probable cause of a significant safety event was the failure of a
transit worker to stay clear of the approaching train, either because
the worker was not aware of its presence or because they lacked a
physical reference by which to identify a safe area outside the train's
dynamic envelope. The NTSB commented that RTAs should identify the
track zone because transit workers may lack a physical reference to
identify where a person or equipment could be struck by the widest
equipment that could occupy the track. One RTA commenter recommended
that FTA review the definition to better account for tight working
conditions in subways and on elevated environments and suggested FTA
remove the following from the track zone definition: ``typically is an
area within six feet of the outside rail on both sides of any track.''
One RTA commenter questioned the practicality of the proposed
definition and recommended FTA change the definition to follow the
established APTA standard of track zone in ``Roadway Worker Program
Requirements.'' The commenter also recommended FTA change the term from
``track zone'' to ``foul zone'' for consistency, as it is more in
keeping with ``fouling a track.'' One RTA commenter noted the
definition for track zone is defined separately from fouling a track,
but that they appear very similar. The commenter asked if there is a
significant difference between these two definitions. Another RTA
commenter indicated that the six feet referenced in the proposed track
zone definition would not work for the RTA's system, especially in
tunnels and on tight rights-of-way. In addition, since the track zone
definition is synonymous with ``fouling the track,'' the commenter
recommended FTA use the term ``foul zone'' or ``fouling zone'' instead
of ``track zone.'' One RTA commenter proposed that FTA remove the term
``track zone,'' because including the term could result in confusion
about where protections are required. One vendor noted that many
current places of safety, including niches, walkways, and bench walls,
might be within the track zone as proposed to be defined by FTA and
recommended that FTA remove the following from the track zone
definition: ``typically is an area within six feet of the outside rail
on both sides of any track.'' Another vendor commenter recommended FTA
consider establishing a clear minimum threshold by making the track
zone a minimum of six feet from the edge of the outside rail.
FTA Response: FTA agrees with the NTSB's comment that the RTA
should identify the track zone rather than the transit workers and has
amended the definition in this final rule to replace ``transit worker''
with ``the RTA.'' Ensuring the RTA identifies the track zone will
provide needed consistency and allow the RTA to better assess and
manage risks in the track zone. FTA also agrees with commenters that
the phrase ``typically is an area within six feet of the outside rail
on both sides of any track'' should be removed. FTA notes that it has
added proximity language to the definition of ``fouling a track'' (see
section II.D.7) and reiterates that this rule is intended to consider
the needs of various operating systems and track configurations. FTA
disagrees with adopting the APTA standard and disagrees that the term
should be changed to ``foul zone.'' FTA declines these changes as they
would conflict with the changes just discussed. FTA notes that the
track zone is the ``location'' of where the action of fouling a track
occurs. FTA disagrees that including the term ``track zone'' on the
list of definitions in the final rule might result in confusion about
where protections are required because the final rule requires
protections within track zones. FTA has defined this in Sec.
671.39(c), which requires RTAs to identify redundant protections for
roadway workers performing work on the roadway and ``within track
zones.'' FTA also declines to establish a clear

[[Page 87180]]

threshold of ``six feet from the edge of the outside rail'' due to the
need for flexibility, as mentioned above, to account for systems such
as those operating on streets with mixed traffic.
27. Transit Worker
Comments: One SSOA, one RTA, and one vendor submitted comments on
the proposed definition of ``transit worker.'' The SSOA commenter asked
if the definition includes an RTA's police force. The RTA commented
that the definition of ``transit worker'' does not align with the
definition in 49 CFR part 673.5. In addition, the RTA commenter
recommended that FTA remove SSOA personnel from throughout the
provisions of part 671 and have rail transit stakeholders refer to the
appropriate sections of part 674 or an SSO program standard, as
appropriate. Further, the RTA commented that in part 671, subpart D
(Sec. Sec. 671.31 through 671.41), the term ``roadway worker'' takes
precedence over ``transit worker'' or other terms that were previously
defined. The commenter added that it is unclear to what extent transit
workers must comply with these RWP program elements, even though the
preceding sections seem to intentionally describe this larger
population beyond those personnel working within the track zone. The
vendor recommended FTA include language for third parties (such as
emergency personnel) in the transit worker definition or a separate one
to support Sec. 671.21(b)(3), which proposes to require each RTA to
establish requirements for on-track safety, ``including protections for
emergency personnel who must access the roadway or the track zone.''
FTA Response: FTA confirms that an RTA's police force personnel are
transit workers if they are ``employees'' or ``contractors'' working on
behalf of the RTA as described in the definition. FTA confirms that it
explicitly includes SSOA personnel and contractors in the definition of
``transit worker'' in part 671 to ensure that transit worker-related
provisions apply to SSOA personnel conducting inspections or performing
other activities that require track access. FTA refers readers to
section II.D.21 of this preamble for more discussion about the terms
``transit worker'' and ``roadway worker'' as they pertain to the
requirements established in this rule. FTA declines to include
``emergency'' in the personnel in the definition of transit worker
because emergency personnel would not meet the definition of ``transit
worker'' if they are not an employees, contractors, or volunteers
working on behalf of the RTA or SSOA.
28. Transit Worker Safety Reporting Program
Comments: One SSOA commenter asked FTA for a definition of ``senior
management'' in the context of the ``transit worker safety reporting
program'' proposed definition.
FTA Response: FTA declines to establish a formal definition for
this term as RTAs may have varied levels of authority and leadership
depending on size, and it is the responsibility of the individual
agency to understand and determine which members of leadership should
be involved.
29. Watchperson
Comments: Two vendors commented on the proposed definition of
``watchperson.'' One vendor requested that FTA clarify whether ``sole
duty'' in the definition means the roadway worker in charge and
watchperson are separate roles carried out by separate workers. The
other vendor noted that sufficient ``reaction time'' or, as the
definition describes it, ``plus time to clear,'' has often been debated
among RWP training professionals and Federal inspectors. The commenter
recommended that FTA reword the definition of watchperson for
consistency with other definitions. This commenter also recommended
that FTA add language such as, ``Watchpersons shall consider roadway
worker reaction time to ensure full ample time is provided.'' The
commenter noted this restructuring would refer agencies, trainers, and
employees to the ``ample time'' definition, which includes the language
they proposed striking from the definition of ``watchperson'' and would
emphasize the importance of the reaction time component that the
watchperson is responsible for assessing.
FTA Response: This final rule provides that the roadway worker in
charge must ``serve only the function of maintaining on-track safety
for all members of the roadway work group and perform no other
unrelated job function while designated for duty.'' The final rule
allows a roadway worker in charge to serve in the role of watchperson
because this role falls within the function of maintaining on-track
safety.
FTA does not believe that the definition requires further
clarification on response time because ``plus time to clear'' is
sufficient to ensure ample time is given to the transit workers in such
a scenario.
30. Working Limits
Comments: One RTA commented on the proposed definition of ``working
limits.'' The commenter suggested that FTA add how working limits may
be defined.
FTA Response: FTA declines to make this revision as the definition
is intended to encompass RTAs of varying sizes and complexities and
adding more specific detail would reduce the flexibility and scope of
applicability.
31. Work Zone
Comments: One vendor commented on the proposed definition of ``work
zone'' and recommended that FTA incorporate ``or adjacent to'' into the
definition after ``within.'' The commenter noted there had been
numerous occasions where work zones adjacent to the track did or did
not have sufficient on-track safety afforded, and the work activity
unintentionally fouled the track zone. The commenter asked if this
situation would meet the intent of the ``work zone'' definition.
FTA Response: FTA agrees that areas adjacent to the track zone have
the potential to affect the track zone. FTA declines to amend the
definition as suggested because the definition contemplates these areas
already. The final rule uses the term ``work zone'' to refer to the
immediate area of a track zone, which means it is the area where
workers are performing work and therefore could be struck by a rail
transit vehicle or equipment. FTA expects information on adjacent
tracks and multiple roadway worker groups working in adjacent areas to
be included in job safety briefings, including safety information about
any adjacent track and identification of the roadway maintenance
machines or on-track equipment that may foul adjacent tracks.
32. Recommended Additions
Comments: FTA received comments from one SSOA and three RTAs
recommending that FTA define additional terms in part 671. The SSOA
commenter recommended FTA clearly define the terms ``resources,''
``qualified personnel,'' and ``complexity'' to fully eliminate
subjectivity because SSOAs are evaluated by these regulations, and FTA
should clearly define expectations. One RTA commenter recommended FTA
include a definition for ``adjacent track'' in Sec. 671.5 because it
is defined in Sec. 671.33(b)(7). One RTA recommended FTA add a
definition for ``contractor'' and adopt the definition from APTA's
``Roadway Worker Program Requirements'' standard. Another RTA commenter
suggested that FTA define ``unsafe acts'' and ``unsafe conditions'' to
support employee education on the

[[Page 87181]]

requirements for safety reporting in Sec. Sec. 671.21(a)(6) and
671.23(e).
FTA Response: FTA declines to establish formal definitions of the
terms ``resources,'' ``qualified personnel,'' and ``complexity''
because these terms are not used in this final rule. However,
``qualified'' is defined in Sec. 671.5 in relation to a roadway worker
or transit worker's training, proficiency, and authorization status.
FTA appreciates the RTA commenter that recommended defining ``adjacent
track'' in Sec. 671.5 but does not believe it is necessary to add this
to the definition section of the rule as it is only referred to in one
section of the rule (Sec. 671.33(b)(7)) and is sufficiently clear in
that context. FTA does not believe it is necessary to define commonly
understood terms such as ``contractor.'' Similarly, FTA declines to
formally define the terms ``unsafe acts'' and ``unsafe conditions'' as
they are also commonly understood and intended to be flexible in this
rule. By not defining these terms, FTA allows for adaptability in
different scenarios and environments and ensures workers do not feel
constrained in their ability to report potential hazards.

E. Section 671.11--RWP Program

Comments: FTA received comments related to the requirements for an
RWP program in Sec. 671.11. One SSOA commenter urged FTA to require
relevant RTAs to include electrical safety plans within their RWP
program to protect workers from electrocution.
An RTA commenter asked for specificity on the types of ``subsequent
updates'' of the RWP manual that must be submitted to the SSOA for
review and approval as required by Sec. 671.11(c).
A vendor recommended that all RWP program elements and procedures
align with an RTA's operating procedures, and that RTA operating
procedures must facilitate on-track safety implementation.
FTA Response: FTA appreciates the reminder of the electrical risk
and safety concerns around many transit systems and has kept the rule
language broad to account for varying types of systems and hazards. FTA
recommends that RTAs incorporate electrical safety practices within
their RWP programs as applicable.
With regard to the inquiry on approval of ``subsequent updates'' to
the RWP manual, FTA considers those revisions or updates that result in
any RWP policy changes as necessitating SSOA review and approval.
Minor, non-substantive updates are not required by the rule to be
approved by the SSOA. FTA expects SSOAs and RTAs to identify any
necessary thresholds and practices to execute RWP manual revisions and
approvals.
FTA acknowledges the need for RWP programs to align with RTA
operating procedures and encourages agencies to tailor RWP programs to
synchronize with existing operating procedures accounting for agency
size, operating environments, infrastructure, service delivery, and
more.

F. Section 671.13--RWP Manual

1. Requirements
Comments: FTA received comments from multiple RTAs, two industry
associations, and one vendor related to the requirement at Sec. 671.13
to establish a single manual documenting the RWP Program elements,
including responsibilities, processes and procedures, and the required
training, qualification, and supervision for transit workers.
One industry association commenter expressed concern about RTAs
having to create an RWP manual instead of using their existing rulebook
and standard operating procedures (SOPs) for employees working on or
near the track. The commenter urged FTA to provide flexibility for
agencies to incorporate the requirements from the RWP manual into their
rulebooks, SOPs, or other agency documents as long as they cover all
the Sec. 671.13 requirements. One RTA asserted that FTA should not
require the RWP manual to be a stand-alone document but instead be
integrated into existing rulebooks and recommended FTA remove the
requirement of a separate document. The commenter suggested that a
separate manual would increase the burden on employees who must
maintain the operating rulebook, RWP manual, and a track access guide
while performing duties. The commenter added that a separate manual
could create version control issues where RWP manuals might be updated
in conflict with operating rules and noted that version control is
easier with a single operating rulebook. The commenter claimed this
integration would streamline documentation, reduce redundancy, and
better ensure compliance. One RTA commenter noted its system has both
third rail-powered (heavy rail) lines and catenary-powered streetcar
(light rail) lines and it intends to create separate RWP manuals, each
satisfying the RWP program requirements, for each of its rail transit
modes.
One industry association commenter suggested that the RWP manual
should address distractions related to personal communication devices,
which are a major factor contributing to roadway worker safety events.
The commenter recommended that Sec. Sec. 671.13 and 671.23 could
specifically identify ``compliance with State, local, and agency rules
and guidelines regarding worker distractions and prohibited devices/
items.''
One RTA commenter recommended that FTA clarify the meaning of ``by
labor category or type of work performed'' in terms of defining the
training, qualification, and supervision required for accessing the
track zone that must be documented in the RWP manual.
One RTA requested that FTA clarify how the ``processes and
procedures, including any use of roadway workers to provide adequate
on-track safety, for all transit workers who may access the track zone
in the performance of their work'' affect transit workers such as an
operator entering the roadway to troubleshoot a train, or a customer
service representative accessing the right-of-way to retrieve a
personal item. Another RTA requested flexibility to maintain RWP
processes and procedures outside the RWP manual, similar to the
flexibility proposed for the track access guide. The commenter noted
that if those processes and procedures are included in the RWP manual,
employees' printed manuals may become outdated and no longer be
reliable sources soon after issuance. Further, the commenter noted it
is impossible to include the details of all track access and safety
processes and procedures in the RWP manual while maintaining a
reasonably sized document that employees can carry with them and easily
navigate. The commenter argued that maintaining procedures separately
would allow the manual to be more ``evergreen'' because its information
will hold true even if the RTA makes minor procedure changes.
One vendor commenter asked FTA for guidance on processes and
procedures to provide on-track safety for ``safety and oversight
personnel,'' especially in emergencies, that could be included in the
RWP manual. One RTA commenter noted that the requirement to include in
the RWP manual ``procedures for SSOA personnel to access the roadway''
seem out of place. The commenter recommended that if procedures for an
SSOA to enter RTA property need to be referenced in the manual, the
SSOA and the RTA should work together to develop a process by which the
SSOA will engage the RTA to ensure proper protection when entering the
RTA's track zone. One RTA commented that information on protecting
safety and oversight personnel from moving rail vehicles should be in a
separate section

[[Page 87182]]

and not included in the RWP manual section specific to ``roadway
workers.''
FTA Response: While FTA understands that RTAs may have existing
rulebooks and SOPs in place that address RWP, FTA believes it is
critical that RTAs establish and maintain a single, authoritative
document so that it is clear to all parties where all the RWP
information is housed and can be found. FTA believes that a singular
document is also more conducive to annual reviews, and better
facilitates SSOA and FTA oversight. FTA declines to remove the
requirement for a separate manual but confirms that employees are not
required under this rule to carry the RWP manual on their person. The
rule only requires the RTA to distribute the RWP manual to all transit
workers who access the roadway. FTA agrees with the commenter that
suggested a single operating rulebook is preferable for version control
and to reduce redundancy, which is why FTA is finalizing the
requirement for a separate, dedicated manual. To reduce redundancy, FTA
encourages RTAs to reference the RWP manual in existing rulebooks or
operating procedures where appropriate or incorporate these existing
documents into its RWP manual. In response to the comment that an RTA
intends to create separate manuals for its heavy and light rail lines,
FTA reiterates the requirement that RTAs establish one RWP manual as
the single authoritative source of RWP program information for all rail
modes operated by the RTA. However, the RTA could clearly differentiate
in the manual the sections that are relevant to workers, based on the
mode of operation.
While FTA agrees that electronic personal communication devices can
cause distractions, FTA believes that electronic devices do have a
purpose in the field at times. Therefore, FTA declines to revise the
rule to specifically address distractions related to personal
communication devices but notes that RTAs may establish additional
rules that are consistent with this regulation.
FTA confirms that the intent of including the training,
qualification, and supervision required for transit workers by labor
category or type of work performed is to encourage RTAs to consider the
different job roles, tasks, or functions for different classifications
of workers or groupings of workers when addressing this requirement.
Each labor category or worker classification may have distinct
requirements based on the nature of the work they perform, which might
require distinct training or supervision. As such, defining the
necessary training, qualification, and supervision by labor category or
type of work performed ensures that each group is appropriately trained
and certified to access the roadway and supervised as necessary.
The final rule requires that the RWP manual document processes and
procedures for all transit workers who must access the track to perform
their duties, which would include an operator entering the roadway to
troubleshoot a train, or a customer service representative accessing
the right-of-way to retrieve a personal item. For these instances of
momentary track fouling, the final rule states that a transit worker
may only foul the track once they have received appropriate permissions
and redundant protections have been established as specified in the RWP
manual. In response to the commenter that requested flexibility to
maintain RWP processes and procedures outside the RWP manual, FTA
reiterates the requirement that RTAs must establish one RWP manual as a
single authoritative source of RWP program information. FTA believes
maintaining one document ensures consistency and accountability for the
workforce and strengthens the dependability of training and oversight
measures. FTA also believes this requirement will encourage more
efficient manual review and update processes pursuant to Sec.
671.13(e). FTA has drawn the distinction for the track access guide to
be incorporated by reference as track access guides for some agencies
may be especially lengthy and/or may require more frequent updates than
the updates to RTA policies and procedures. Because Sec. 671.13
requires RTAs to update their RWP manuals as necessary and as soon as
practicable upon any change to the system that conflicts with any
element of the document, FTA is not concerned that including the
processes in the RWP manual will result in outdated manuals. FTA notes
that the final rule does not establish a requirement that RTAs must
distribute a physical copy of the manual to all transit workers who
access the roadway, thus eliminating the concern that the manuals may
be too large to carry. The final rule offers RTAs flexibility to select
the format for manual distribution, which could include electronically,
as long as transit workers have easy access to an up-to-date version.
FTA will consider the request for FTA guidance on processes and
procedures to provide on-track safety for safety and oversight
personnel, especially in emergencies, for future guidance and technical
assistance. FTA disagrees with the commenter that procedures for SSOA
personnel to access the roadway are out of place in the RWP manual
because the final rule establishes requirements to ensure protections
apply to all transit workers that access the roadway to perform work,
including SSOA personnel conducting inspections or performing other
oversight activities. FTA encourages the RTA and SSOA to work together,
when appropriate, to establish procedures for SSOA personnel to access
the roadway. The SSOA and RTA will also have the opportunity to
formally agree on RWP procedures via the SSOA's approval of the RWP
manual under Sec. 671.25. FTA disagrees that information on protecting
safety and oversight personnel from moving rail vehicles should not be
included in the RWP manual. The RWP manual is intended to document
processes and procedures for all transit workers who may access the
track zone in the performance of work, including SSOA personnel.
2. Track Access Guide
Comments: One SSOA, seven RTAs, two industry associations, and two
vendors submitted comments regarding the proposed requirement at Sec.
671.13(d) that the RWP manual must include or incorporate by reference
a track access guide to support on-track safety. An RTA commenter
agreed that having this information easily accessible and maintained in
one document would assist with its safety-promotion efforts.
The SSOA commenter recommended that FTA consider requiring the
track access guide be part of the RWP manual and not be incorporated by
reference, given the guide's integral nature with the RWP manual. One
industry association commenter noted that while the association
supports written RWP procedure requirements, FTA's requirement for both
an RWP manual and a track access guide is very prescriptive and the
requirement for a track access guide for numerous employees on
thousands of miles of track would be extremely burdensome. Further, the
commenter added that it would be nearly impossible for employees to
carry the guide daily. One RTA commenter noted that RTA right-of-way
training and familiarization gives roadway employees all the tools they
need to understand right-of-way limitations and exceptions and
suggested additional guides may become confusing and detrimental to
track access and could hinder the roadway worker. One RTA commenter
asked if all updates to the track access guide would also be subject to
SSOA review and approval. One RTA commenter asked if the RTA could use

[[Page 87183]]

its current track access guide to meet the requirement at Sec.
671.13(d).
Several RTAs and two industry associations commented on the
locations that FTA proposed must be included in the track access guide.
One RTA recommended FTA strike the requirements from the track access
guide regarding identifying locations with specific conditions since
many of the locations and conditions are variable.
One RTA commenter provided their assessment that the focus of the
locations only applies to work conducted under train approach warning,
as other forms of RWP restrict rail vehicle movement. Two commenters
asked FTA to clarify whether the track access guide requires a physical
map or whether a detailed written description of system locations could
meet the requirement. One industry association commenter noted the
requirements at Sec. 671.13(d)(1) could be problematic for some
agencies because their systems may not have many ``clearance'' zones
along the track, especially in enclosed and elevated portions of subway
systems while other systems such as streetcar will have clearance zones
all along the track. One RTA commenter recommended that FTA include
``changes in track grade'' as locations required to be included in the
track access guide.
Multiple RTAs, one SSOA, and two vendors commented on the
requirement to include noise and environmental conditions in the track
access guide. One RTA noted that these conditions constantly change
within the RTA's system and cannot be pre-determined. The commenter
added that these site-by-site locational conditions should be addressed
through a site-specific job safety briefing during each shift. Another
commenter suggested FTA remove ``environmental conditions'' from the
track access guide because listing all potential environmental
conditions that would require additional consideration will be very
difficult.
An SSOA and an RTA similarly asserted that the requirement to
identify locations of reduced visibility due to weather conditions is
unfeasible. The commenters added that identifying specific areas where
weather may be a concern would be difficult, as weather conditions
affecting visibility can change frequently and occur at any outdoor
location on RTA property. The RTA commenter recommended that FTA modify
this requirement to instead ``identify additional procedures or
precautions that RTAs must take when weather conditions reduce
visibility'' rather than identify locations subject to reduced
visibility due to weather conditions. One vendor requested that FTA
clarify whether ``reduced rail transit vehicle operator visibility due
to precipitation or other weather conditions'' is intended to cover any
outdoor track generally or to call out specific areas of higher risk.
One RTA commenter noted that the requirement to identify
``locations subject to increased rail vehicle or on-track equipment
braking requirements'' (Sec. 671.13(d)(2)) is only relevant to rail
vehicle operators and not to roadway workers. The commenter recommended
that RTAs incorporate this location information into a timetable or
other documentation for rail vehicle operators. This RTA also suggested
FTA remove the requirements from the track access guide regarding
identifying locations with limited visibility, noise, and other
environmental conditions for RTAs that may have this information
integrated into their timetable. One vendor commented on the
requirement to identify ``locations with limited or no visibility due
to obstructions or topography.'' The commenter suggested that track
access guides should identify locations with ``permanent obstructions''
and include general notes regarding temporary obstructions in the RWP
manual. The commenter noted temporary obstructions are potentially
caused by train movement on adjacent tracks.
One RTA commenter asked FTA to define ``portals with a restricted
view.'' One vendor recommended FTA incorporate other locations that
require hazard analysis to support safe access and adequate on-track
safety. Two RTAs recommended that rather than including the
environmental or weather conditions in the track access guide, the
roadway worker in charge should respond to environmental conditions
with appropriate additional safety procedures and discuss these
conditions during job safety briefings.
FTA Response: FTA disagrees with requiring the track access guide
to be part of the RWP manual because FTA believes that offering
flexibility for RTAs to choose to maintain this track access guide
separately from their RWP manual will allow frequent updates as the
condition of the track system changes, which may be more frequent than
changes to the RWP policies and procedures. FTA defers to RTAs on the
design of the track access guide and expects that the level of detail
for track access guides will correlate with the complexity of the
transit system. The final rule does not require RTAs to distribute a
physical copy of the track access guide to all transit workers who
access the roadway, nor does it require transit workers to carry it on
their person. The final rule offers RTAs flexibility to select the
format of the track access guide, which may include an electronic
format, to distribute the track access guide as long as transit workers
have easy access to an up-to-date version. FTA believes that right-of-
way training and familiarization can be bolstered with the development
of a track access guide. FTA does not believe that the addition of a
track access guide will promote confusion, as the track access guide is
based on a physical survey of the track geometry and condition of the
transit system and is intended to provide workers a tangible reference
point of the RTA's track system. RTAs are encouraged to provide
additional information to help workers identify which sections of the
track access guide are relevant to their roles and how the guide
applies to their specific job duties.
The final rule requires that the RWP manual include or incorporate
by reference a track access guide and the SSOA must review and approve
the RWP manual and any subsequent updates. As such, the SSOA must also
review and approve updates to the track access guide.
FTA confirms that creating a new track access guide is unnecessary
as long as the existing guide meets all the requirements of Sec.
671.13.
FTA acknowledges that the requirement for the content of the track
access guide is prescriptive but affirms that a track access guide is
an important component of the RWP program to ensure awareness,
coordination, and compliance among workers. FTA reviewed the comments
regarding the specific locations that must be included in the track
access guide and is finalizing the requirement as proposed. FTA
believes that it is necessary to include all the areas listed in the
rule because of the known safety risk posed by the enumerated locations
and conditions. The track access guide is meant to inform workers of
these areas of heightened risk and better allow for RTAs and workers to
control for potential hazards. RTAs may opt to include additional
environmental hazards in their track access guides, as needed. FTA
disagrees that the focus of identified locations is only applicable to
work that is being conducted under train approach warning and believes
that identifying locations that may need additional consideration for
establishing on-track safety is important and useful when accessing the
roadway in the performance of all types of work.

[[Page 87184]]

However, FTA agrees that the information is particularly useful under
train approach warning.
FTA is deferring to RTAs to determine the best way to structure the
guide, and the final rule does not require a physical map. FTA
emphasizes that the location of close clearance points is an important
detail, particularly in enclosed systems.
FTA reiterates that the final rule establishes minimum standards as
a baseline for rail transit RWP and expects that RTAs will establish
their track access guides based on the unique environments and
characteristics of their systems. FTA disagrees with the commenter that
recommended FTA include ``changes in track grades'' as one of the
locations required to be included in the track access guide, as it is
unnecessary because this condition would fall under the umbrella of the
requirement at Sec. 671.13(d)(2) to include ``locations subject to
increased rail vehicle or on-track equipment braking requirements.''
FTA agrees that noise and environmental conditions may routinely
change within an RTA's system and cannot be pre-determined, and FTA
agrees with the commenter that job safety briefings should include
site-specific hazards and conditions related to the work to be
performed and the protections to eliminate or protect against those
hazards. RTAs are not required to list ``all'' environmental
conditions, but rather those significant enough to require due
consideration in establishing on-track safety. This may require the
RTAs to conduct additional assessment, but will allow for better
planning, preparedness, and risk mitigation in the long term. For that
reason, FTA also declines to adopt the suggestion that FTA remove the
requirements from the track access guide regarding identifying
locations with limited visibility, noise, and other environmental
conditions for RTAs that may have this information integrated into
their timetable. FTA agrees that weather conditions are variable, and
the final rule requires the track access guide to document locations of
high risk that certain weather conditions may cause. For example, an
RTA may be aware of track switches that frequently become covered by
snow, which would affect the ability of a transit worker to see the
switches, or of areas that are regularly covered by fog. Therefore, FTA
declines to modify the requirement because FTA feels this information
is useful and important to include.
FTA confirms that the requirement for RTAs to identify ``locations
with limited or no visibility due to obstructions or topography''
(Sec. 671.13(d)(1)) within the track access guide encompasses
permanent obstructions. RTAs may opt to address temporary obstructions
through various approaches, and FTA notes that job safety briefings
provide an opportunity for RTAs to provide information on day-to-day
conditions on the roadway or track zone.
FTA declines to define ``portals with restricted views'' because
the term in the final rule is intended as a general phrase to direct
RTAs to identify specific locations on the railway where views may be
partially obstructed upon entering or exiting the location.
FTA declines to add other locations that require hazard analysis to
support safe access and adequate on-track safety to the minimum
required locations in a track access guide, as FTA believes the current
list covers the locations that pose the greatest risk for most RTAs.
However, FTA notes that the rule offers RTAs flexibility in identifying
locations of high risk that require additional consideration for
establishing on-track safety, and RTAs should include additional
locations as appropriate to their systems.
FTA disagrees that the roadway worker in charge should respond to
environmental and weather conditions with appropriate additional safety
procedures and discuss these conditions during the job safety briefing
rather than require the RTA to include the conditions in the track
access guide. As mentioned previously, the rule does not require RTAs
to use current weather reports but instead requires RTAs to document in
the guide locations of high risk that certain weather and environmental
conditions may cause. However, FTA agrees that the roadway worker in
charge should address current weather and environmental conditions in
the job safety briefing.
3. Review and Update
Comments: FTA received comments from six RTAs, two industry
associations, and one vendor regarding the proposed RWP manual review
and update requirements at Sec. Sec. 671.13(e) and (f). One RTA
commenter suggested the proposed timeframe of reviewing and updating
the manual every two years is tight, particularly for small systems,
and could lead to hasty review practices. The commenter recommended
that FTA consider changing the timeframe to three years to align with
the SSO Triennial Audit process. One RTA commenter asked FTA to clarify
whether a continuous review cycle meets the review requirement.
One RTA and two industry associations recommended that FTA clarify
the review and update requirement by revising it as follows: ``The RTA
must review its RWP manual and, if necessary, update it.'' The RTA
commenter and one industry association commenter added that
incorporating the phrase ``if necessary'' will guide RTAs in
determining that, in some instances, significant changes may not be
necessary. All three commenters suggested that FTA establish guidance
similar to 49 CFR part 673, whereby an RTA certifies that no updates
were required following a review.
One RTA recommended that each update to the RWP manual also address
lessons learned from safety events, hazards, etc. The commenter asked
whether addendums to the manual and track access guide count as forms
of acceptable updates or if a manual reprint is required to satisfy the
requirement to update as soon as practicable. One RTA commenter
requested FTA permit bulletin notices as a temporary update to the
manual rather than a complete reissue every time a change is identified
within the two-year review period. Additionally, the vendor commented
that changes to operating procedures could be incorporated by reference
into the RWP manual, and RTAs could issue bulletins announcing
operating rule changes. This would reduce the need to reprint RWP
manuals and to conduct retraining on the manual. Another RTA commenter
noted the requirement to update the RWP manual to reflect ``information
provided by the SSOA and FTA'' and requested clarification from FTA
regarding what constitutes ``information.'' In addition, the commenter
asked FTA to clarify the grounds on which the SSOA or FTA can require
an RTA to include this ``information'' in its RWP manual.
FTA Response: FTA disagrees that the requirement to review and
update the RWP manual every two years could lead to hasty review
practices. FTA asserts that the two-year timeframe ensures that the RWP
manual reflects current RTA conditions, policies and procedures, and
lessons learned. Requiring the review no less than every two years
allows RTAs sufficient time to review and update the manual, but also
provides flexibility for RTAs who find it prudent to update the manual
more regularly. FTA thinks two years is an appropriate period of time
to review and consider new information and, therefore, will not result
in hasty review practices. In response to the commenter that requested
FTA clarify whether a continuous review cycle meets the review
requirement, FTA notes that the rule establishes a minimum requirement
for RTA review and update at least

[[Page 87185]]

every two years. Continuous reviews could meet this requirement so long
as they are comprehensive and the entire manual is verifiably reviewed
at least every two years. Updates to the RWP manual must be submitted
by the RTA to its SSOA for review and approval, as described in section
Sec. 671.25.
FTA declines to add a qualifier to the regulation that the RWP
manual must only be updated if necessary, as was suggested by
commenters. FTA believes that as drafted, RTAs are only required to
update the manual if a review determines it is necessary. FTA
recommends that RTAs document their review process and findings, which
may conclude that no changes are needed. This documentation ensures RTA
compliance with the requirement and provides a record that the review
was carried out as mandated and notes that review findings indicated no
changes were required.
FTA is not revising the regulation to specify that updates to the
RWP manual include lessons learned from safety events and hazards,
because FTA feels the existing regulatory text encompasses this
expectation. FTA expects lessons learned in implementing the RWP
program would include lessons learned from safety events, the results
of RWP compliance monitoring, actions the RTA has taken to address
reports of unsafe acts and conditions and near-misses, and the results
of the agency's monitoring of redundant protection effectiveness. FTA
is not requiring a specific format for the RWP manual update and
intends for the final rule to provide flexibility for RTAs to determine
the format of RWP manual updates as well as the format for distribution
to workers.
In response to the commenter that requested FTA permit bulletin
notices as a temporary update to the manual rather than a complete
reissue every time a change is identified within the two-year review
period, FTA notes that the final rule requires the RTA must update its
RWP manual and track access guide as necessary and as soon as
practicable upon any change to the system which conflicts with any
element of either document. The manual document itself must be updated
and redistributed to all transit workers who access the roadway, but
the updated document can be provided in manner that is practical for
the RTA (electronically, in paper, etc.)
The requirement to review and update the RWP manual to reflect
``information provided by the SSOA and FTA'' is consistent with the SRM
requirements of the PTASP regulation for RTAs to include data and
information provided by an oversight authority as a source of hazard
identification and to include guidance provided by an oversight
authority as a source for safety risk mitigation. In this context,
``information provided by the SSOA and FTA'' may include, but is not
limited to suggestions for improvement, industry best practices,
relevant State and Federal regulatory updates, and information related
to investigations or audit findings. SSOAs are required to approve the
RWP manual and subsequent updates and are authorized to deny approval
if information is omitted that the SSOA determines is necessary,
consistent with the SSOA's general oversight authority.
4. Distribution
Comments: Five RTAs, one industry association, and two vendors
submitted comments regarding the proposed RWP manual distribution and
redistribution requirement at Sec. 671.13(g). Multiple commenters
asked FTA to specify the required format for distributing the RWP
manual and track access guide and asked if electronic/digital
distributions are permissible or if hard copies must be distributed. A
commenter asked if ``distribute'' means allowing easy access to the
manual or if it requires a physical copy. Two commenters suggested
that, similarly to FRA, the roadway worker in charge should carry a
manual or have easy access to a manual and serve as the responsible
party for responding to challenges or concerns that arise.
One RTA commenter alternatively suggested that it is more effective
for departments to distribute procedures, rather than the entire
manual, because the workers get only the RWP information related to
their jobs. The commenter noted that this arrangement is less confusing
for workers, particularly for contractor employees whose tenure at an
RTA is brief and limited to a single location or a few locations. The
RTA commenter agreed, however, that a single document would simplify
SSOA review and approval.
One RTA commenter requested that FTA clarify whether RTAs also must
redistribute the track access guide as part of any RWP manual update.
One vendor recommended that FTA require RTAs to destroy or
``confiscate'' old copies when issuing new RWP manual versions because
of the importance of version control. In addition, the commenter
recommended that RTAs retrain or brief transit workers on substantial
updates that fundamentally change an element of the RWP program before
transit or roadway workers enter the track zone after a change. One RTA
recommended that FTA change the wording of the requirement that the
manual be distributed ``to all transit workers who access the roadway''
to ``all transit workers who must enter a track zone to perform work.''
The commenter argued this rewording would better align with the phrases
used elsewhere in the rule. One industry association and an RTA noted
concern about the practicality of requiring the manual to be
distributed to ``all transit workers who access the roadway'' as this
could be a large group and that distributing hard copies to all transit
workers, including employees, contractors, and SSOA personnel, would
come at a high cost and be an excessive administrative burden.
FTA Response: The final rule does not require RTAs to distribute
physical copies of the manual and track access guide to all transit
workers who access the roadway in the performance of their work. The
final rule offers RTAs flexibility to select the distribution format,
which could include electronic dissemination, as long as transit
workers have access to up-to-date versions. This flexibility also is
intended to ease the potential administrative and cost burden one
commenter raised as a concern.
FTA agrees that access to the RWP manual at a worksite is useful
for the roadway worker in charge as a reference to address good faith
safety challenges. However, FTA is not adopting the suggestion to
require the roadway worker in charge carry the manual. FTA acknowledges
that RWP manuals will vary in size and content detail, and requiring
the roadway worker in charge to keep the manual on their person may be
impractical in certain circumstances. FTA defers to RTAs to decide if
and when it is appropriate to require the roadway worker in charge or
transit workers to keep a full or partial copy of the manual on hand.
FTA reiterates that the rule requires RTAs to establish and maintain a
separate, dedicated manual documenting its RWP program and to
distribute the manual to all transit workers who access the roadway in
the performance of their work. However, RTAs can highlight for workers
which portions of the manual are relevant to their duties.
FTA confirms that an RTA would only be required to redistribute the
track access guide if it is revised. FTA declines to establish a
requirement for RTAs to destroy old manuals and is deferring to RTAs on
their document control practices, so long as they are consistent with
the recordkeeping requirements of this part. FTA is not incorporating
into the final rule the suggestion that RTAs retrain or brief

[[Page 87186]]

transit workers on substantial updates that fundamentally change an
element of the RWP program before transit or roadway workers enter the
track zone after a change. FTA believes that the requirement for RTAs
to redistribute the RWP manual after each revision and the requirements
for refresher training in this rule are sufficient to ensure transit
workers are aware of the changes but reiterates that RTAs may establish
additional procedures that are consistent with this regulation.
FTA intends for the RWP manual to be broadly distributed to all
transit workers who access the roadway in the performance of their
work. Broad distribution of the RWP manual promotes a safety culture at
RTAs wherein all transit workers are aware of the hazards of their job
duties and work environment, are aware of the processes and procedures
to mitigate those hazards and are accountable for compliance with those
processes and procedures.

G. Section 671.21--Rail Transit Agency

FTA received comments on the various proposed responsibilities of
RTAs.
1. Procedures To Provide Ample Time
Comments: One SSOA commented on the requirement for RTAs to
establish procedures to provide ample time and determine the
appropriate sight distance based on maximum authorized track speeds and
suggested that a better way to establish the appropriate sight distance
for determining ample time would be to require the track access maps to
have the maximum allowable speeds printed on maps for entire system.
FTA Response: This rule requires RTAs to create and maintain track
access guides to support on-track safety. FTA encourages agencies, as
appropriate, to include allowable speeds within the track access guide
or on related visual materials. However, due to significant variances
in RTAs subject to this rule, FTA declines to require RTAs to include
authorized speeds within the track access guide or other printed maps.
2. Procedures Regarding Individual Rail Transit Vehicle Detection
Comments: FTA received comments on the requirement that RTAs
establish procedures to ensure that individual rail transit vehicle
detection is never used as the only form of protection in the track
zone at Sec. 671.21(a)(2) from one SSOA, multiple RTAs, and one
vendor. The SSOA commenter asked FTA to clarify whether it intends to
allow individual rail transit vehicle detection, asserting that FTA's
definition of ``minor task'' muddies the issue.
A vendor asked if FTA intends to make individual rail transit
vehicle detection the minimum form of on-track safety. If so, the
commenter indicated that the definition of ``individual rail transit
vehicle detection'' implies that only lone workers may use this form of
on-track safety. The vendor also recommended that FTA reword Sec.
671.21(a)(2) to read: ``Ensure that individual rail transit vehicle
detection is always accompanied by a form of redundant protection in
the track zone.''
One RTA commenter asked FTA to identify additional forms of
protection that would satisfy the redundant protection requirement.
Another RTA requested that FTA clarify what it envisions as additional
forms of protection beyond individual rail transit vehicle detection
for two-person work crews and lone workers. One vendor recommended that
FTA specify in the rule the required forms of on-track safety beyond
individual rail transit vehicle detection.
One RTA commenter agreed that most situations of fouling the
roadway call for a higher form of protection than individual rail
transit vehicle detection alone, but argued that in limited specific
cases, such as a worker traveling a short distance (e.g., 100 feet)
from one place of safety to another, employing a secondary form of
protection in addition to individual train detection is impractical and
unnecessary. The commenter suggested that FTA refrain from universally
applying the requirement for supplemental protection while using
individual train detection and instead reserve the right for an RTA to
require supplemental protection as it deems necessary based on the
environment, specific conditions, and cases of use. Another RTA
commenter suggested that prohibiting the use of rail transit vehicle
detection as the only form of protection may require agencies to modify
their procedures for accessing the track for short periods of one
minute or less, such as an operator getting out of the rail vehicle to
remove debris from the track. The commenter asked that FTA consider the
implications of this requirement on existing procedures governing short
periods of track access and recommended that FTA leave the decision to
determine secondary protections up to the RTAs, as called for in APTA's
standard.
One RTA commented that prohibiting the use of individual rail
transit vehicle detection as the only form of protection is more
applicable to systems that do not operate as line of sight, low speed,
and in mixed traffic where pedestrians are common. This commenter noted
that some RTA tasks, such as litter pick up, leaf blowing, and cutting
grass, are typically performed without a flagger or other means of
redundant protection but with other measures, including calling the
operations control center and requiring operators to pass at walking
speed.
One RTA noted that prohibiting the use of individual rail transit
vehicle detection as the only form of protection will now require a
two-man crew to perform work currently done by a lone worker. The
commenter added that FTA did not address this issue in the regulation.
Another RTA commenter stated that this requirement contradicts FTA's
definition and requirements for lone workers.
FTA Response: This final rule prohibits the use of individual rail
transit vehicle detection as a sole form of protection for all workers
on the roadway, including those performing minor tasks. FTA confirms
that RTAs can use individual rail transit vehicle detection as long as
there is another form of protection in place. The rule sets
requirements for RTAs to conduct a safety risk assessment to identify
and establish redundant protections for each category of work that
workers perform on the roadway or track, even those workers conducting
minor tasks. FTA confirms that this rule does not identify a minimum
form of on-track safety, but rather establishes a requirement for
redundant protection that ensures no transit worker is allowed to use
individual rail transit vehicle protection as their sole protection on
the roadway. FTA declines to adopt the recommendation to reword Sec.
671.21(a)(2) to emphasize that individual rail transit vehicle
detection is always accompanied by a form of redundant protection
because FTA believes the existing phrasing clearly expresses the
requirement that RTAs cannot use individual rail transit vehicle
detection as the only method of on-track safety. FTA is not prescribing
the kinds of redundant protections that an RTA must have in place.
Instead, RTAs must conduct a safety risk assessment to identify and
establish redundant protections based on their unique operating
characteristics and capabilities and SSOAs may also identify redundant
protections for RTAs. A non-exhaustive list of potential redundant
protections is also enumerated in Sec. 671.39(d).
FTA disagrees that employing a secondary form of protection in
addition to individual train detection is

[[Page 87187]]

impractical and unnecessary in limited specific cases. FTA risk
assessments and NTSB investigations reveal that fatalities and injuries
have occurred in recent years when work groups and individuals relied
on rail transit vehicle detection for on-track safety. This prohibition
is responsive to the NTSB recommendations to require redundant
protections for roadway workers and to eliminate the use of individual
rail vehicle detection. FTA appreciates that prohibiting the use of
rail transit vehicle detection as the only form of protection may
require agencies to modify their procedures for accessing the track for
short periods, and FTA recognizes the burden this may place on
agencies. Due to the high-risk nature of roadway work, and the
demonstrable inadequacies of individual rail transit vehicle detection
as a sole source of on-track safety, FTA believes it is necessary to
require redundant protections for transit workers who foul a track even
for short periods of time.
FTA acknowledges that line-of-sight, low-speed rail transit systems
experience different risks than other RTAs. Prohibiting the use of
individual rail transit vehicle detection as a sole form of protection
is still necessary to address these differing risks. For example, in
mixed traffic environments transit workers must account for noise or
sight obstructions, pedestrian activity, or other vehicles--all of
which may serve as a critical distraction to an individual worker.
However, FTA understands RTAs have varying operating and environmental
characteristics that may require different redundant protections which
is why the final rule requires RTAs to use their safety risk assessment
process to identify and establish the redundant protections that best
suit their operating environments and the work performed by transit
workers on the roadway.
FTA acknowledges that some tasks, such as litter pick up, leaf
blowing, and cutting grass, are typically performed without a flagger
or other means of redundant protection. However, reliance on rail
transit vehicle detection, with no redundant protection, does not
sufficiently account for unforeseen circumstances or predictable human
error. FTA disagrees with the commenter that prohibiting the use of
individual rail transit vehicle detection as the only form of
protection will now require a two-man crew to perform work currently
done by a lone worker. FTA notes that redundant protections that RTAs
may identify may include procedures, such as foul time and advance
warning systems, or physical protections to stop trains in advance of
workers, such as derailers and shunts, which do not require a second
person. FTA disagrees that the requirement to ensure individual rail
transit vehicle detection is never used as the only form of protection
in the track zone contradicts FTA's definition and requirements for
lone workers. The provisions regarding lone workers at Sec. 671.35
emphasize that a lone worker may not use individual rail transit
vehicle detection as the only form of on-track safety. Further, the
rule requires RTAs to establish redundant protections for each category
of worker, including lone workers. FTA's intent is to ensure that lone
workers can perform appropriate tasks while maintaining a high level of
safety through redundant protections.
3. Procedures Related to Job Safety Briefings
Comments: One vendor and one RTA commented on the requirement that
RTAs establish procedures related to job safety briefings at Sec.
671.21(a)(3) and (4). The vendor recommended that FTA revise the
requirement for when job safety briefings must be provided.
Specifically, the commenter recommended that job safety briefings be
required for all transit workers who must or have the potential to
enter the track zone, which the commenter argued would be consistent
with FTA's proposed definition of roadway worker. The RTA suggested
using the term ``safety stand down'' to refer to job safety briefings
that are required after a rule violation is observed. This RTA also
asked if this job safety briefing would occur after specific violations
or all rule violations.
FTA Response: The final rule requires that RTAs establish
procedures to provide a job safety briefing to transit workers whose
job entails entering a track zone. FTA declines to revise Sec.
671.21(a)(3) because FTA believes the language is sufficiently clear
and identifies the individuals subject to the job briefing requirement.
FTA expects the RTA to ensure that, as soon as it becomes clear that a
transit worker who may potentially enter the track zone must enter
track zone, the worker is provided with a job safety briefing.
FTA notes that RTAs may use their own term for job safety briefings
as long as the briefings meet the requirements of this rule. FTA
confirms that Sec. 671.21(a)(4) intends that RTAs must conduct a job
safety briefing after any observed rule violation, not just specific
ones.
4. Procedures for Good Faith Safety Challenge
Comments: Labor organizations and one RTA commented on Sec.
671.21(a)(5) and the requirement for RTAs to establish procedures to
provide transit workers with the right to challenge and refuse in good
faith any assignment. One labor organization welcomed and supported the
NPRM provisions that would require an RTA to provide transit workers
with a mechanism to exercise the right to refuse a work assignment
presenting ``on-track safety concerns.'' However, one labor
organization noted that while FTA requires the RTA to have procedures
to resolve these challenges ``promptly and equitably,'' FTA did not
define ``equity'' in this context. The labor organization commented
that without a definition of ``equity,'' management will be disinclined
to use a process that gives equal weight to the worker's views--which
is what the commenter urges ``equity'' must mean in the context of the
proposed rule. Multiple labor organizations recommended that FTA define
the process for resolving good faith safety challenges, suggesting the
process could include negotiations with pre-determined representatives
or with mediation or arbitration. The commenters argued that FTA should
not give management space to plead vagueness regarding ``equity'' or to
skirt FTA's intended meaning of the term, and that FTA must be clear in
the final rule about what ``equity'' requires in the context of good-
faith work refusals.
One RTA expressed concern about the requirement for procedures that
allow workers to ``refuse'' work, which they alleged would go against
good safety policy and potentially against collective bargaining unit
agreements. The RTA recommended keeping the good-faith challenge
language but removing the ``refuse'' language, noting that the RTA
already has a good-faith challenge process that works when used
properly.
FTA Response: FTA's provision for good faith safety challenge is
consistent with APTA standard for RWP, and reflective of best practices
within the transit industry. FTA declines to further prescribe a
process for resolving good faith safety challenges, as FTA notes that
an RTA's size, staffing, and system type may impact how they approach
the good faith safety challenge process. FTA declines to define
``equitably,'' as FTA uses ``equitably'' in this context in its
commonly understood meaning.
FTA also notes the rule's provisions, per Sec. 671.25(c)(2)(i)(C),
requiring the SSOA to conduct annual audits to assess the effectiveness
of the RTA's

[[Page 87188]]

implementation of its RWP program, including review of ``all
documentation of instances where a transit worker(s) challenged and
refused in good faith any assignment based on on-track safety concerns
and documentation of the resolution for any such instance during the
period covered by the audit.'' If during this audit the SSOA determines
that good faith safety challenges are not resolved equitably, the SSOA
must issue findings and require corrective action.
FTA acknowledges the concern regarding the requirement for
procedures that allow workers to ``refuse'' work. However, FTA believes
the right to refusal is integral to the good faith safety challenge to
prioritize worker safety, promptly resolve hazards, and emphasize the
preeminence of safety in a rail transit environment. FTA is not
requiring that RTAs revise their existing process, as long as the
process meets the minimum requirements specified in this rule.
5. Procedures To Require Reporting of Unsafe Events
Comments: One RTA and one labor organization submitted comments
regarding the requirement for RTAs to establish procedures to require
the reporting of unsafe acts, unsafe conditions, and near-misses on the
roadway in Sec. 671.21(a)(6). The RTA commented that the new mandatory
reporting requirements for transit workers in Sec. 671.21(a)(6) and
Sec. 671.23(e) are a significant expansion of the employee safety
reporting program and would require significantly more resources to
manage on an ongoing basis given the broad nature of the new reporting
categories. The commenter also noted concern about overburdening the
Safety Committee established under the PTASP regulation with what would
be a large increase in the volume of information reported through this
program.
The labor organization suggested that confidentiality be emphasized
for reporting near-misses, noting that participation would be more
widespread and the accounts more accurate. The organization stated that
near-miss data collection is most useful when plentiful and
unvarnished, thus ensuring and emphasizing confidentiality in this
reporting process will benefit all involved parties.
FTA Response: FTA notes that while the requirement in this rule for
procedures for transit workers to report unsafe acts and conditions
seems to represent an expansion of the employee reporting program, an
RTA's Transit Worker Safety Reporting Program, established under part
673, applies to all workers and should already capture transit worker
safety reports related to work performed on the roadway. This final
rule emphasizes the importance of an RTA's safety reporting program in
capturing safety-critical information related to RWP, but it is FTA's
expectation that much of this information is being captured by RTAs via
existing practice. FTA acknowledges that, where this is not the case,
managing additional reporting will pose a burden for agencies. FTA
believes these extra requirements are critical to ensuring safety and
empowering workers to voice concerns, particularly because unsafe
conditions and practices persist throughout the transit industry. FTA
has accounted for the added cost of these reporting changes in the
final rule economic analysis under ``Near-Miss Reporting Program and
Records'' estimates.
FTA agrees that confidential reporting has many benefits that
promote safety culture and encourage employee reporting and FTA
encourages the practice of confidential reporting whenever appropriate
and feasible. However, FTA is preserving the flexibility for RTAs to
establish the transit worker safety reporting processes that are most
effective for their operating realities. For some agencies, competing
considerations such as expediency of reporting, staff size, and the
need for additional information may require identified reporters. FTA
confirms that acceptable methods of reporting near-miss information
include both confidential and nonconfidential reporting. Further, FTA
encourages RTAs to consider providing ways for transit workers to
anonymously report safety concerns and to consider participating in
third-party confidential close-call reporting programs.
6. Procedures To Ensure Transit Workers Understand RWP Program
Comments: One RTA submitted a comment addressing the requirement
that RTAs establish procedures to ensure all transit workers who must
enter a track zone to perform work understand, are qualified in, and
comply with the RWP program at Sec. 671.21(a)(7). This RTA asserted
that all transit workers should not be required to comply with the RWP
program, as this program is designed for roadway workers. The commenter
added that alternate methods of protection should be in place to
protect workers of other crafts, i.e., blue signal/flag protection for
mechanical employees.
FTA Response: FTA disagrees that the RWP program is designed only
for roadway workers and that not all transit workers should be required
to comply with the program, though FTA acknowledges that transit and
roadway workers may have other requirements in place to ensure their
safety, such as blue/signal flag protection for vehicle mechanics and
technicians. FTA intends for the provisions in this rule to provide
protection for all transit workers as they access the track in the
performance of their work. FTA recognizes that work may take place on
the track, in vehicle maintenance shops, in rail yards, or elsewhere
that requires additional protections beyond those addressed by this
final rule.
7. Requirements for On-Track Safety
Comments: Multiple RTAs, one industry association, one individual,
and one vendor commented on the provision that RTAs establish
requirements for on-track equipment at Sec. 671.21(b)(1). One RTA
noted that the term ``labor category'' is used throughout the rule but
is not defined anywhere and requested that FTA clarify the term since
labor classifications and organizational structures vary by agency.
Another RTA requested clarification on the requirement for credentials
``by labor category.'' The individual commented on behalf of railroad
and transit workers that wear religiously mandated articles of faith
such as Amish wide brimmed hats, Sikh dastaar or turban, and Jewish
kippahs. The individual requested that FTA and FRA develop a policy or
guidelines for rail workers who wear articles of faith that may be
incompatible with personal protective equipment, such as hard hats. The
vendor suggested that FTA not list examples of personal protective
equipment at Sec. 671.21(b)(1) as the intent is not to specify minimum
personal protective equipment requirements.
Multiple RTAs and one industry association submitted comments on
the credentials requirement at Sec. 671.21(b)(2). One RTA asked FTA to
explain the purpose of requiring RTAs to establish requirements for
visibly displaying credentials, stating that if the roadway worker has
their credentials somewhere on their person, then that should be
sufficient. Two RTAs inquired if the FTA was proposing that these
credentials must displayed in a certain way, or whether the intention
of this section is to require credentials always be visible.
One RTA suggested that the requirement for RTA employees to display
RWP qualification credentials is likely to result in confusion, noting
that the rule appears to propose that different credentials would be
required

[[Page 87189]]

for each RWP position (worker, flag person, watchperson, roadway worker
in charge). As an example, the commenter noted that an employee
displaying a roadway worker in charge qualification might be performing
watchperson duties. The RTA recommended that RTAs be free to select any
effective method of identifying employees' qualifications.
One RTA and one industry association suggested revising Sec.
671.21(b)(2) to remove reference to how the credentials of an RWP
program are displayed. The commenters argued that credentialing
requirements should be left at the discretion of the RTAs and the
approving SSOA.
One RTA asked if an electronic solution, such as the roadway worker
in charge electronically scanning ID badges during the job safety
briefing, would meet the requirement to display credentials at Sec.
671.21(b)(2). The RTA also expressed concern that, if credentials must
be displayed at all times while on the roadway, it could create a
safety hazard for RTAs that use lanyard type badges.
An RTA stated that the ``roadway'' definition, as it relates to
required displayed credentials in Sec. 671.21(b)(2), is problematic
for RTAs with tracks that share city right-of-way with automobiles and
intersection crosswalks with pedestrians and suggested considering
specifying ``work and work zones'' rather than ``roadway.''
Two RTAs commented on the requirement for on-track safety
protections for emergency response personnel at Sec. 671.21(b)(3). One
RTA explained that their agency stops service and movement of trains to
ensure emergency personnel have a safe environment to do their job. The
commenter noted that training of emergency personnel will be
unnecessary because the danger of train movement will be halted during
their response within the right-of-way. The other RTA commented that
the RWP program is not the appropriate place for this requirement and
that access to the roadway outside of the protection of a roadway
worker in charge should be provided for in the RTA's emergency response
plan.
One RTA commenter and one industry association commenter requested
that FTA consider adding provisions that persons who are not trained on
or qualified in the RWP program can be escorted in a track zone by RWP-
qualified personnel, a practice currently existing in California. The
commenters added that the need for this may occur due to unique track
configurations, systems design, or shared access areas with other non-
RTA entities.
FTA Response: FTA declines to define the term ``labor category''
because labor categories and types of work performed can be defined in
several ways and will vary by agency due to the diverse operating
characteristics of RTAs. FTA defers to RTAs to identify the labor
categories and different job functions that are relevant for their
unique systems. FTA expects RTAs to establish minimum requirements,
based on the type of work performed, for the equipment, training,
qualification, supervision, and credentials required for transit
workers to access the roadway and address those requirements
accordingly. Regarding the requirement for credentials ``by labor
category,'' FTA intends that workers will display a physical indication
of their qualification to access the roadway or the track zone. FTA
defers to RTAs to determine the specific labor categories to be
displayed.
FTA expects that RTA policies regarding personal protective
equipment will consider religious articles that may be worn by transit
workers. FTA encourages RTAs to develop personal protective equipment
policies that adequately protect transit workers while being
appropriately flexible.
FTA declines to remove the list of examples of personal protective
equipment from the regulations because examples in this case help
illustrate or show the characteristics of personal protective
equipment. FTA notes these examples are non-exhaustive and only
intended to clarify personal protective equipment.
FTA disagrees with the suggestion to revise Sec. 671.21(b)(2) to
remove any reference to displaying RWP program credentials. A physical
indication of an individual's qualification to access the roadway or
the track zone helps ensure that roadway workers have the proper
training and are aware of the safety risks and the protections to
reduce those risks. Displaying credentials also clarifies workers
roles, and ensures workers are following the appropriate protocols for
those roles. This requirement is reflective of industry best practices.
FTA confirms that the final rule requires credentials be visible at all
times, not just during the job safety briefing; however, this
requirement does not specify that they be displayed in a certain way.
Examples include credentials displayed in see-through card holders on
safety vests, rubber identification bracelets, badges, and bands. FTA
defers to RTAs to determine the form of credentialing, as long as it
can be visible. FTA clarifies the rule does not specify the content or
the form of the credentials and defers to RTAs to establish the
appropriate credentials for their systems. As mentioned previously,
this requirement is reflective of industry best practices and a
physical indication of an individual's qualification to access the
roadway or the track zone helps ensure that only roadway workers who
have the proper training and are aware of the safety risk and the
protections to reduce that risk access the roadway. In response to the
commenter's concern that lanyard-type badges could create a safety
hazard, FTA is not prescribing the forms of credentialing and defers to
RTAs to identify the form while keeping safety at the forefront.
Similarly, because FTA is not requiring specific credentials, FTA has
not accounted for additional expenses in the Benefits and Costs
section.
Under Sec. 671.21(b)(2), RTAs must establish requirements for
credentials for transit workers who enter the roadway or track zone.
FTA maintains that the language ``roadway or track zone'' within this
provision allows for flexibility for systems with shared rights-of-way
in determining when credentials must be displayed. FTA also does not
believe ``work zone'' would be sufficient in this context, as roadway
workers in the track zone but outside of the work zone still should be
verifiably credentialed for reasons including ensuring proper
authorization, communication, and emergency response protocols.
FTA notes that the rule does not require RTAs to provide RWP
training to emergency personnel; rather, RTAs must establish procedures
to protect emergency personnel who must access the roadway or the track
zone to perform their job. FTA believes it is necessary to address
emergency personnel in this part to make clear that RTAs are required
to provide protections for emergency response personnel who must access
the roadway or track zone, and that workers are aware of this
requirement. FTA also notes that Sec. 671.21(b)(3) requires an RTA to
establish requirements for protections for emergency response personnel
who must access the roadway or the track but does not prohibit an RTA
from documenting these protections and procedures in the RTA's
emergency response plan. In response to the RTA and industry
association commenters who requested the addition of provisions to
allow persons who are not trained on or qualified in the RWP program to
be escorted in a track zone by RWP-qualified personnel, FTA is amending
the regulation to address escorting non-transit workers when

[[Page 87190]]

necessary, to support individuals that are not RWP certified and do not
fall into the categories of roadway worker, transit worker, or
emergency personnel.

H. Section 671.23--Transit Worker

Comments: Five RTAs, one SSOA, and one vendor commented on the role
of transit workers in the RWP program detailed in Sec. 671.23. One RTA
asked what the impact would be if a transit worker did not follow the
requirements of the RTA's RWP program. The RTA asked FTA to clarify the
intersection between this requirement and existing labor contracts and
discipline processes and what FTA's intent is in including this
requirement. Further, they recommended allowing the discipline
processes outlined per standard RTA processes and/or labor agreements
to stand and suggested that FTA add a line to the regulation that
clearly states, ``Do not get involved in discussions regarding
discipline. That is a labor-management issue.''
One RTA expressed concern with the practicality of the requirement
in Sec. 671.23(b) that a transit worker may only foul the track once
they have received appropriate permissions, and redundant protections
have been established as specified in the RWP manual. The commenter
noted that in streetcar systems, transit workers foul the track every
day whether on or off duty, simply by being pedestrians or motorists.
Another RTA noted that the scope of this requirement is too broad by
including all transit workers in a rulemaking focused on roadway
workers. The commenter added that the requirement to obtain RWP for
common activities, such as fouling a track to immediately cross from
one place of safety to another when views are not obstructed creates an
undue burden on control center personnel. One SSOA suggested using
``fouling a track'' rather than ``fouling the track'' in this
subsection to mirror the definition in Sec. 671.5.
Commenting on Sec. 671.23(c), ``Acknowledgement of protections
providing on-track safety,'' one RTA asked if having the transit worker
sign the bottom of the job safety briefing would be an acceptable form
of written acknowledgement. Another RTA asked if this acknowledgement
would be a secondary document beyond what is provided in a train order
or special instruction during RWP work. One SSOA asked if the
acknowledgement of on-track procedures in writing was intended to be
part of the job safety briefing requirement and if it must be a formal
signature. A vendor recommended requiring that it be the transit
worker's responsibility to obtain a safety briefing prior to accessing
the track zone. The vendor emphasized the importance that transit
workers understand that it is their responsibility to receive the
safety briefing from the roadway worker in charge and not sign off on
the briefing until they fully comprehend the on-track safety being
afforded.
For the authority to refuse to foul the track identified in Sec.
671.23(d), one RTA commented that the determination that an assignment
is unsafe is a subjective view that requires no basis in fact and so
should be removed as a reason for a transit worker to refuse to foul a
track.
FTA Response: If transit workers do not comply with the
requirements of the RTA's RWP program, the RTA must determine the
reason for this failure. Because policies and regulations regarding
labor practices will vary among RTAs and from State to State, FTA
declines to stipulate what discipline processes an agency should or
should not include as part of its RWP program. Similarly, FTA declines
to add the FRA language recommended by the commenter to the regulation
and notes that RTAs should ensure that they comply with both the RWP
program and their existing labor contracts.
Regarding the concern with the practicality of the requirement that
a transit worker may only foul the track once they have received
appropriate permissions and redundant protections have been
established, FTA's intent is to restrict workers from unauthorized
track access and/or fouling the track unnecessarily. FTA understands
that in streetcar systems, people, including pedestrians, motorists, or
off-duty transit workers, may regularly foul the track. However, FTA
reiterates that the regulation applies to transit workers who access
any rail fixed guideway public transportation systems in the
performance of work and does not set provisions for crossing the track
as a pedestrian or motorist, but rather focuses on fouling the track in
the performance of work under the protection of the RWP program.
FTA understands the concern that obtaining RWP for common
activities, such as fouling a track to immediately cross from one place
of safety to another, may be burdensome. However, FTA has determined
that hazards exist for many categories of transit employees who work on
or in close proximity to the right-of-way, regardless of the
circumstances. For roadway workers, this rule includes provisions at
Sec. 671.39(d)(3) for equivalent protections approved by the SSOA for
lone workers, providing flexibility for these situations. For transit
workers who are not roadway workers and who must momentarily access the
roadway, agencies have flexibility to establish appropriate permissions
and redundant protections in accordance with Sec. 671.23(b).
FTA declines to revise ``fouling the track'' to ``fouling a track''
to mirror the definition language (Sec. 671.5) as it does not affect
the meaning of the requirement as used in this section.
FTA confirms that signing the bottom of the job safety briefing
would be an acceptable form of written acknowledgement and notes that
the language of Sec. 671.23(c) is intended to provide RTAs flexibility
in the method of written acknowledgement they can provide. Written
acknowledgement may be in the form of a formal signature or other
method of written affirmation. FTA reiterates that transit workers must
provide acknowledgement in writing but may do so in the method that
best suits their purposes, including having the written acknowledgement
be a secondary document. It is important to note that whatever method
of written acknowledgement the RTA chooses to use must comply with the
provisions established in the recordkeeping section of the rule (Sec.
671.51).
FTA confirms that the acknowledgement of on-track procedures does
not need to be part of the job safety briefing but reiterates that
transit workers are required to provide written acknowledgement of
their understanding of the on-track safety protections. While FTA
agrees on the importance of the transit workers having a thorough
understanding of the safety briefing, FTA declines to amend the
regulation to make it the transit worker's responsibility to obtain a
safety briefing prior to accessing the track zone. FTA requires that
each roadway worker acknowledge that they have received the job safety
briefing. FTA does not believe additional requirements are necessary to
ensure the transit worker's awareness and acknowledgement.
FTA appreciates the concern that it is too subjective for a roadway
worker to determine what is ``unsafe.'' However, FTA disagrees with the
recommendation for removing this from the rule. The intent of Sec.
671.23(d) is to permit the transit worker to use their own judgement
and discretion when determining if an assignment related to this rule
is unsafe. FTA believes frontline workers are often in the best
position to recognize and understand the potential risks of an
assignment and, therefore, must have the authority to raise those
concerns without restrictions.

[[Page 87191]]

I. Section 671.25--State Safety Oversight Agency

1. RWP Program Oversight (Sec. 671.25(b))
Comments: FTA received multiple comments with respect to SSOA
oversight for the RWP program. One individual stressed the importance
of SSOA employees being knowledgeable of and qualified in the RTA's RWP
program in order to effectively review and audit the RTA's RWP program.
One SSOA questioned what is meant by the provision, ``The SSOA must
update its program standard to explain the role of the SSOA in
overseeing an RTA's execution of its RWP program.'' The commenter noted
that it is not clear what updates would be required, and that these
requirements should also be included in 49 CFR part 674.
FTA Response: FTA agrees that SSOA employees should be
knowledgeable of the RWP program in order to effectively oversee its
implementation. The recently published 49 CFR part 672, as part of the
technical training plan, requires SSOAs to receive ongoing technical
training in RWP program requirements specific to each RTA for which
safety audits and examinations are conducted. The final rule also
contains provisions that apply to SSOAs to ensure their engagement in
the RWP program. For example, the term ``transit worker'' defined in
Sec. 671.5 includes any employee, contractor, or volunteer working on
behalf of the RTA or SSOA. Per Sec. 671.23, all transit workers,
including SSOA employees, contractors, and volunteers, must follow the
relevant requirements of the RTA's RWP program by position and labor
category. Also, Sec. 671.41(a)(1) requires that an RTA's RWP training
program must address SSOA employees, contractors, and volunteers who
have job duties that require them to foul the track.
FTA requires SSOAs to incorporate RWP program oversight
requirements and responsibilities in the SSOA's SSO program standard.
Because the SSO program standard documents the SSOA processes and
procedures that the SSOA uses to provide oversight through the SSO
program, the SSO program standard updates include the SSOA processes
used to comply with the oversight requirements of this final rule and
fulfill SSOA responsibilities at Sec. 671.25. Additional practices and
procedures may be adopted to supplement the program oversight
requirements and responsibilities in the SSO program standard, but the
SSO program standard must explain the role of the SSOA in overseeing
the RTA's execution of its RWP program per Sec. 671.25(b). While 49
CFR part 674 contains the majority of the requirements related to
SSOAs, FTA believes it is clearer to contain all RWP requirements in
this one regulation.
2. RWP Manual Review and Approval (Sec. 671.25(a))
Comments: Multiple RTAs, multiple SSOAs, one industry association,
and one vendor commented on the requirements for SSOA review and
approval of the RWP program elements and manual. One RTA noted that it
is appropriate for SSOAs to review and provide feedback on RWP programs
but commented that SSOA approval of the RWP program is inappropriate
because the SSOA is not the subject matter expert on RWP and does not
continuously interact with frontline workers. The commenter also stated
that the RTA, not the SSOA, is in the best position to develop, manage,
and oversee their RWP program. The SSOA has existing oversight
authority of the RTA's rail system, and requiring SSOA approval of the
RWP program would serve to only impose extra burdens on an RTA without
providing any meaningful benefits.
One RTA asserted their opinion that SSOAs' review and approval of
the RWP manual is redundant with the ASP approval because their RWP
program currently exists within the ASP. With respect to updates in
particular, one RTA requested clarification on what type of manual
updates are expected to be reviewed by the SSOA, for example, minor
formatting changes or content updates only. Similarly, an RTA raised
concerns about whether any change made to an underlying SOP would need
to go to the SSOA for approval prior to being signed, and if so, who
would manage the process. The RTA stated that the requirement for SSOAs
to approve the RWP manual is burdensome for RTAs as it's an additional
compliance requirement. The RTA recommended that FTA consider providing
additional resources to RTAs to meet these requirements.
Multiple SSOAs expressed concerns with the timeframes for initial
RWP program approval and submission to FTA as established in Sec.
671.25(a), noting specifically that it may not allow for enough time
for the revisions required by the SSOAs. One SSOA commented that
requiring SSOA approval within 90 days emphasizes timeliness over a
full and detailed review of the program elements. One SSOA recommended
that FTA require SSOAs to include in their program standard a process
to review and approve the RWP program. Another SSOA proposed that FTA
revise the rule text to state that initial approval of the RWP program
must be completed within ``90 calendar days from receipt, or 60
calendar days from resubmission after SSOA comment.'' One SSOA
recommended that FTA follow a similar format for SSOA review as in the
PTASP rule--setting a deadline for the commencement of each RTA's RWP
program, after which the SSOA would perform oversight at their
discretion and within the context of their programs.
With respect to Sec. 671.25(a)(2) and the requirement to submit
all approved RWP program elements for each RTA in its jurisdiction, and
any subsequent updates, to FTA within 30 calendar days of approving
them, two SSOAs and one industry association recommended submission of
the RWP program through the State Safety Oversight Reporting tool
(SSOR). The two SSOAs suggested that the RWP program submission be
added to the annual reporting process or follow a similar process and
timeframe for other reports that are submitted to FTA by SSOAs, such as
PTASP approval and triennial audit reports. One SSOA questioned FTA's
role in validating the RWP program if it had already been approved by
the SSOA. A vendor inquired about FTA's intention regarding making the
SSOA responsible for the submission following SSOA approval rather than
requiring the RTA to submit the approved program to FTA.
One SSOA questioned if the submissions are for individual RWP
program elements or collectively for all RWP program elements in the
State. An RTA asked if the SSOA must submit to FTA only newly
established RWP programs or whether they must submit RWP program
elements for existing programs.
It was also suggested by an industry association that FTA remove
the 90- and 30-day timeframes altogether because these timeframes may
cause confusion and conflict with existing submission practices between
the SSOA and their RTAs.
FTA Response: FTA disagrees with the RTA comment stating that the
SSOA's approval of the RWP program is inappropriate. As described in
Sec. 674.5, ``a State that has a rail fixed guideway public
transportation system within the State has primary responsibility for
overseeing the safety of that rail fixed guideway public transportation
system.'' Therefore, this final rule is consistent with the SSOA's
existing responsibility to oversee RTAs. As part of this oversight, FTA
believes it is necessary for SSOAs to review and approve the RWP
program and manual regularly, and from the outset. This ensures
sufficient procedures are in place before concerns arise and allows

[[Page 87192]]

SSOAs to confirm that the RWP program and manual are compliant with the
requirements of this rule. Requiring full review and approval promotes
accountability and thoroughness for SSOAs and creates a framework for
consistency. SSOA staff and contractors should achieve the training and
qualifications necessary, per 49 CFR part 672, to perform this
responsibility.
To avoid redundancy, SSOAs may review and approve an RTA's ASP, and
conduct the annual RWP program audit simultaneously. If the SSOA elects
to conduct their annual RWP program audit alongside their annual review
of the ASP or integrate the review of the RWP program into its
triennial review of the ASP, the review must meet the RWP program audit
requirements specified at Sec. 671.25(c).
FTA considers those revisions or updates that result in any RWP
policy changes as necessitating SSOA review and approval. Changes that
do not impact content or procedures, for instance, formatting changes
or grammatical corrections, do not require review by the SSOA. FTA
expects SSOAs and RTAs to determine the appropriate thresholds and
practices for SSOA review of manual updates. Because the SSOA-RTA
oversight framework has been in place for many years, FTA believes that
SSOAs and RTAs will already have practices in place to share, review,
and approve safety procedures. As such, the SSOA's review and approval
of the RWP manual should comport with the existing collaborative
processes among the agencies. Regarding potential changes to an
underlying SOP, FTA confirms that any revisions or updates that result
in RWP policy changes and changes to the RWP manual must be reviewed by
the SSOA. FTA believes that requiring SSOA approval in these
circumstances is necessary to ensure safety concerns are brought to the
forefront and addressed properly, with the appropriate level of
coordination and feedback. While this may present some additional
burden, FTA anticipates policy changes will be made only as necessary
to promote consistency and ensure updates are meaningful and well
considered. FTA will consider developing and sharing technical
assistance resources to support this practice to help minimize the
burden of this requirement for either agency.
Due to the safety-critical nature of the RWP program, FTA expects
SSOAs to complete a comprehensive and detailed review of all RWP
program elements. However, in response to comments FTA has removed the
90-day timeframe for SSOA approval so as to not unnecessarily limit an
SSOA's review. FTA considered the commenter's suggestion to add an
additional 60-day window after the proposed 90-day timeframe to provide
additional time for SSOAs to re-evaluate RWP programs in an instance
where they do not approve an RTA's first submission. FTA believes that
removing the time period for an SSOA's initial review of the RTA's RWP
program provides flexibility to both the RTA and the SSOA to establish
a review process that works best in their situation, rather than
prescribing the review time period. FTA expects that SSOAs and RTAs
will coordinate throughout the development of the RTA's RWP program to
ensure (1) an effective RWP program to support roadway worker safety,
and (2) the SSOA and RTA can meet required deadlines. FTA also believes
that the one-year deadline in Sec. 671.1(d) to establish an RWP
program allows time for the RTA to develop its RWP program and for
comprehensive review, feedback, and coordination between the SSOA and
RTA. FTA notes that the RTA's RWP program development, as well as the
SSOA's review and approval of the RWP program, must be a priority for
both agencies and the one-year timeframe for establishment of the RWP
program ensures the SSOA initial review

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