FRA Safety Advisory 2016-02; Hazard Recognition and Mitigation

Published: Dec 5 2016 8:40AM

[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Notices]
[Pages 85674-85676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28558]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Safety Advisory 2016-02]


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

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

ACTION: Notice of Safety Advisory.

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

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

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

[[Page 85675]]

investigation of this accident, FRA believes more robust protection of 
roadway workers \1\ employed by railroads and railroad contractors who 
work on or near railroad track is necessary. Railroad safety is of the 
utmost importance to FRA, and FRA has taken several measures, some of 
which are discussed below, to better protect roadway workers.
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    \1\ FRA regulations define a ``roadway worker'' as ``any 
employee of a railroad, or of a contractor to a railroad, whose 
duties include inspection, construction, maintenance or repair of 
railroad track, bridges, roadway, signal and communication systems, 
roadway facilities or roadway maintenance machinery on or near track 
or with the potential of fouling a track, and flagmen and watchmen/
lookouts.'' 49 CFR 214.7.
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    On June 10, 2016, FRA published two final rules addressing roadway 
worker safety. One of the rules amends FRA's Roadway Worker Protection 
(RWP) regulations (49 CFR part 214, subpart C), while the second rule 
revises FRA's alcohol and drug regulations (49 CFR part 219).
    The final rule, ``Railroad Workplace Safety; Roadway Worker 
Protection Miscellaneous Revisions (RRR)'' (RWP Final Rule), resolves 
miscellaneous interpretive issues, codifies certain FRA technical 
bulletins, adopts new requirements governing redundant signal 
protections and the movement of roadway maintenance machines over 
certain types of track, and amends certain qualification requirements 
for roadway workers. See 81 FR 37840, June 10, 2016. For example, the 
RWP Final Rule mandates job briefings for roadway workers include 
information on the accessibility of the roadway worker in charge. 
Second, it sets standards for how ``occupancy'' behind train 
authorities (when the authority for a work crew does not begin until 
the train has passed the area) can be used. Third, it requires annual 
training for any train, yard, and engine service individual acting as a 
roadway worker in charge. Finally, it requires railroads to annually 
train all roadway workers on their procedures for determining whether 
it is safe to cross track.
    The final rule, ``Control of Alcohol and Drug Use: Coverage of 
Maintenance of Way (MOW) Employees and Retrospective Regulatory Review-
Based Amendments'' (MOW Final Rule), broadens the scope of FRA's 
alcohol and drug regulations to cover MOW employees.\2\ See 81 FR 
37894, June 10, 2016. The MOW Final Rule subjects all MOW employees to 
FRA's drug and alcohol testing, including random testing, post-accident 
testing, reasonable suspicion testing, reasonable cause testing, pre-
employment testing, return-to-duty testing, and follow-up testing. The 
MOW Final Rule also requires drug testing of railroad and MOW employees 
involved in certain highway-rail grade crossing accidents or incidents.
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    \2\ The MOW Final Rule defines the term ``maintenance-of-way 
employee'' or ``MOW employee'' as ``a roadway worker, as defined in 
49 CFR 214.7.''
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    On March 17, 2016, FRA published Safety Advisory 2016-01 addressing 
the movement of roadway maintenance machines over highway-rail grade 
crossings. In Safety Advisory 2016-01, FRA emphasized the importance of 
compliance with railroad operating rules over highway-rail grade 
crossings and the need for railroad employees and contractors operating 
those machines to maintain situational awareness. See 81 FR 14516, Mar. 
17, 2016. Specifically, in Safety Advisory 2016-01 FRA recommends 
railroads and railroad contractors review, update, and follow rules and 
procedures governing the safe movement of roadway maintenance machines 
traversing highway-rail grade crossings.
    As discussed above, FRA has taken a number of recent steps to 
better protect roadway workers when those roadway workers are engaged 
in activities subject to FRA's safety jurisdiction. When those 
employees are engaged in activities outside the scope of FRA's safety 
regulations, they may be required to comply with OSHA's regulations, 
such as 29 CFR part 1910 (Occupational Safety and Health Standards) and 
29 CFR 1926 (Safety and Health Regulations for Construction). 
Specifically, railroads and railroad contractors may be required to 
implement policies and procedures mandated by OSHA relating to the 
working conditions for roadway workers.
    Between January 1, 2000 and December 31, 2015, over 60 roadway 
worker fatalities occurred while the roadway workers performed work not 
covered by FRA's safety regulations. This leads FRA to believe 
railroads and railroad contractors, as well as their employees, may 
fail to recognize potential hazards outside of those directly governed 
by FRA's rail safety regulations and may fail to develop and implement 
appropriate risk mitigation actions.
    During the NTSB's September 24, 2014, hearing regarding the 2013 
MOW and signal employee fatalities, the NTSB reminded the rail industry 
that, in certain situations, OSHA's regulations apply to railroads and 
railroad contractors, including OSHA's requirements that employees: (1) 
Conduct hazard assessments to identify and address existing conditions 
that pose safety hazards; (2) conduct job safety briefings prior to 
every work activity; and (3) conduct additional job briefings if 
significant changes occur during the course of the work. See 29 CFR 
1910.132(d), 1910.269(a)(3), 1910.269(c), 1926.952(b)-(d).\3\
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    \3\ Also on September 24, 2014, the NTSB issued a report titled 
Special Investigation Report on Railroad and Rail Transit Roadway 
Worker Protection, SIR-14/03. In that report, NTSB issued three 
Safety Recommendations to FRA that this Safety Advisory is 
responsive to, including Safety Recommendations R-14-33, R-14-35, 
and R-14-36. NTSB's Recommendation R-14-33 states FRA should revise 
the job briefing provisions of its Roadway Worker Protection 
regulations (49 CFR part 214) to include best practices found in 
OSHA's regulations. NTSB's Recommendation R-14-35 states FRA should 
work with OSHA to establish guidelines for when and where OSHA 
standards should be applied to railroads and railroad workers. 
NTSB's Recommendation R-14-36 states FRA should require initial and 
recurring training for roadway workers in hazard recognition and 
mitigation, including recognition and mitigation of the hazards of 
tasks performed by coworkers.
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    Although FRA's safety regulations require on-track safety job 
briefings prior to an employee fouling track,\4\ through this Safety 
Advisory, FRA reminds railroads and railroad contractors and their 
respective employees that when their roadway workers are engaged in 
activities that fall outside the scope of FRA's safety regulations, 
those activities may be subject to OSHA's regulations. And, those OSHA 
regulations may require job safety briefings prior to beginning certain 
work activities, and additional job safety briefings if a new hazard is 
discovered during the work assignment. Job safety briefings, specific 
to the task or tasks to be performed, provide a mechanism to not only 
communicate identified risks to every member of the roadway work group, 
but to also ensure that the roadway work group agrees as to how the 
identified risks will be mitigated. The job safety briefing is a key 
component in preventing individual conditions, which can be harmless in 
isolation, from becoming a potentially dangerous situation.
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    \4\ See e.g., 49 CFR 214.315(a) and (d) (addressing job safety 
briefings).
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    Railroads and railroad contractors should consider having a 
workable strategy for identifying safety hazards that exist in their 
work environments and for eliminating or addressing such safety 
hazards. Railroads and railroad contractors should therefore consider 
developing and implementing annual training for their roadway workers 
in various hazard recognition techniques. Whenever a hazard or risk is 
identified, a roadway worker should stop, look around, and analyze the 
situation for potential harm. Recognizing every situation for its 
potential danger may be

[[Page 85676]]

challenging. Moreover, individual, isolated conditions may appear to be 
harmless. However, a combination of several seemingly harmless 
conditions can present a serious safety hazard.
    Examples of contributing factors or actions roadway workers may 
face or engage in that may have been a factor in one or more roadway 
worker fatalities since 2000 while the roadway workers were performing 
work not covered by FRA regulations include, but are not limited to: 
Ascending or descending; falling objects; electrocution; an 
unanticipated energy release; slips, trips and falls; hoisting or 
lowering an object; off-track equipment striking roadway workers; 
collisions between roadway maintenance machines and standing trains; 
highway vehicle collisions (vehicle to vehicle); highway vehicles 
striking roadway workers; and environmental-related hazards (swarming 
bees, mudslides, heat stroke, flash floods, etc.).
    FRA and the railroad industry have witnessed success using the Good 
Faith Challenge Procedures found in FRA's regulations \5\ for 
situations when a roadway worker believes the on-track safety procedure 
being used is inadequate for the work being performed. In such a 
situation, the roadway worker may remain clear of the track until the 
challenged safety issue is resolved without fear of retribution or 
retaliation. Many railroads have adopted Good Faith Challenge 
Procedures for any safety-related concern, not just those FRA 
regulates. FRA recommends all railroads and railroad contractors adopt 
appropriate Good Faith Challenge Procedures for any recognized hazard 
identified during job safety briefings or any hazard otherwise arising 
during the course of work activities roadway worker believes requires 
remediation, whether FRA, OSHA, or another Federal agency regulate the 
that hazard.
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    \5\ See 49 CFR 214.311 (responsibility of employers to implement 
Good Faith Challenge Procedures).
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    Recommendations: In light of the above discussion, and in an effort 
to improve job safety briefings, improve the identification and 
mitigation of potential safety hazards existing in the working 
environments of roadway workers, and reduce the number of injuries and 
fatalities occurring when roadway workers are engaged in activities 
outside the scope of FRA's safety regulations, FRA recommends railroads 
and railroad contractors:
    1. Develop hazard-recognition strategies identifying and addressing 
existing conditions posing actual or potential safety hazards, 
emphasizing the contributing factors or actions involved in roadway 
worker-related fatalities occurring since 2000.
    2. Provide annual training to roadway workers on the use of hazard-
recognition strategies developed by the railroad or the railroad 
contractor.
    3. Institute procedures for mandatory job safety briefings 
compliant with OSHA's regulations prior to initiating any roadway 
worker activity. Consistent with OSHA's regulations, roadway workers 
should use hazard-recognition procedures to identify potential hazards 
in their job briefings and then determine the appropriate measures to 
mitigate the identified hazards. If an unforeseen situation develops 
during work performance, roadway workers should stop working and 
conduct a second job briefing to determine the appropriate means of 
mitigating the new hazard.
    4. Develop and apply Good Faith Challenge Procedures for all 
roadway workers who, in good faith, believe a task is unsafe or an 
identified hazard has not been mitigated.
    FRA encourages railroad and railroad contractor industry members to 
take actions consistent with the preceding recommendations and any 
other actions that may help ensure the safety of roadway workers. 
Although the primary purpose of this Safety Advisory is for railroads 
and railroad contractors to apply these recommendations to activities 
that fall outside the scope of FRA's safety regulations, FRA also 
encourages the industry to apply these recommendations to activities 
FRA's regulations govern.
    FRA may modify this Safety Advisory, issue additional safety 
advisories, or take other appropriate actions necessary to ensure the 
safety of the Nation's railroads, including pursuing other corrective 
measures under its safety laws and regulations.

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


BMWED SUMMARY OF REGULATORY JURISDICTION between the FEDERAL RAILROAD ADMINISTRATION (FRA) and the OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA)