Seyfarth Synopsis: The Federal Railroad Administration’s new Safety Advisory seeks to cover activities that fall outside the scope of FRA safety regulations, but within the purview of the OSHA regulations.

The Federal Railroad Administration (FRA) has just issued its Safety Advisory 2016–02 (November 28, 2016). The Advisory is, according to the Agency, “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.”

We had previously blogged on the FRA’s amendments to its Federal Track Safety Standards.

This Safety Advisory indicates that it is a “reminder” for 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. The Advisory seeks to remind railroads, railroad contractors, and their respective employees that “OSHA’s job safety regulations may apply to certain roadway worker activities” and offers recommendations for hazard recognition strategies and challenge procedures that may improve roadway worker safety while roadway workers are engaged in activities subject to OSHA’s regulations. The FRA notes that the Advisory is responsive to the National Transportation Safety Board’s (NTSB) Recommendations R–14–33, R–14–35, and R–14–36.

The Advisory follows on the June 10, 2016, final rules addressing roadway worker safety. One of the rules amended the FRA’s Roadway Worker Protection (RWP) regulations (81 Fed. Reg. 37840, 49 CFR part 214, subpart C), while the second rule revised the FRA’s alcohol and drug regulations (81 Fed. Reg. 37894, 49 CFR part 219).

In research, the FRA had found that 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. In adopting this Advisory, it concluded that when railroad employees are engaged in activities outside the scope of the 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.

Accordingly, the FRA Safety Advisory 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; and
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.

In conclusion, the 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.”

Employers in these industry segments should consider whether these “recommendations” will be enforced as requirements, as it is likely that Agency inspectors may be looking for compliance with the Advisory, especially if an incident should occur.