Rail Transit Roadway Worker Protection

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 established under § 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 § 671.25(c)(2)(i)(E).

FTA added language at § 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 § 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 § 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 electrified systems. FTA also added general emergency response information at § 671.33(b)(4) and the inclusion of an emergency contact number for the roadway worker in charge at § 671.33(b)(8).

FTA revised § 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 § 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 § 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 § 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 § 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 § 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 (§ 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.