Q-1. What are the responsibilities of railroad contractors subject to the Roadway Worker Protection regulation regarding the training of their employees?

A. The topic of contractors and RWP is a serious issue. Accordingly, the safety of all roadway workers (railroad employees and contractors to railroads) is of importance to us at the FRA. Only employees engaged in engineering functions that work for companies under contract with a railroad are subject to the RWP regulation. The Roadway Worker Protection Final Rule (49 CFR 214) was published in the Federal Register on December 16, 1996 (Volume 61, Number 242).

Q-2. Are contractors to railroads expected to comply with the RWP rule?

A. Only engineering-type contractors to a railroad are expected to comply with the rule, just as are the employees to the host railroad. Specifically, under Scope of the Rule (pg. 65961 final rule) - “The issue of protecting contractors who are working on the right-of-way, but not conducting work associated with the railroad, was at least contemplated by FRA. However, in most instances these contractors are instructed by each host railroad not to foul the track [i.e., not to place personnel or equipment at or near the track.] In many instances, railroads provide watchmen [or flagmen] to ensure that these workers adhere to this instruction. Additionally, if the work to be performed potentially causes these workers to foul the track, railroads will often provide protection to make sure that these contractors are safe. . . . Perhaps most important is that these contractors are rarely out on the right-of-way, limiting the risk to which they subject themselves. This situation is clearly distinguishable from that of a roadway worker whose daily work environment requires him or her to perform duties on the right-of-way, under traffic, virtually the duration of the working day.”

Q-3. Would contractors be in compliance with the RWP rules by adopting the on-track safety programs of the host railroad?

A. To minimize the burden of contractors to railroads, and to promote safety and uniformity, in most instances contractors should not devise their own complete programs. The FRA expects contractors to comply with programs established by the railroads on which they are working. Contractors would be responsible for ensuring that their employees receive appropriate training and that they comply with the railroad’s program, but they would not necessarily need their own FRA-approved program.

Q-4. Are employees of contractors to railroads included in the definition of a “roadway worker,” and should they have the same protection as railroad employees?

A. The RWP final rule, Section Analysis, Definitions (pg. 65966), states – “Employees of contractors to railroads are included in the definition if they perform duties on or near the track. They should be protected as well as employees of the railroad. The responsibility for on-track safety of employees will follow the employment relationship. Contractors are responsible for the on-track safety of their employees and any required training for their employees. FRA expects that railroads will require their contractors to adopt the on-track safety rules of the railroad upon which the contractor is working. Where contractors require specialized on-track safety rules for particular types of work, those rules must, of course, be compatible with the rules of the railroad upon which the work is being performed.” “The [RWP] rule does not include employers, or their employees, if they are not engaged by or under contract to a railroad. Personnel who might work near railroad tracks on projects for others, such as cable installation for a telephone company or bridge construction for a highway agency, come under the jurisdiction of other Federal agencies with regard to occupational safety.”

Q-5. What is the responsibility of employers regarding this rule?

A. The final rule, Section Analysis, Sec. 214.311 (pg. 65967 final rule) states – “Employers may be railroads, contractors to railroads, or railroads whose employees are working on other railroads. Although most on-track safety programs will be implemented by railroads rather than contractors, both are employers and, as such, each is responsible to its employees to provide them with the means of achieving on-track safety.” “Railroads are specifically required by Sec. 214.303 to implement their own on-track safety programs. Section 214.311, however, places responsibility with all employers (whether they are railroads or contractors) to see that employees are trained and supervised to work with the on-track safety rules in effect at the work site. The actual training and supervision of contractor employees might be undertaken by the operating railroad, but the responsibility to see that it is done rests with the employer.” Based on the above, it is clear that contractors are responsible for the on-track safety of their employees, as well as any required training. Some contractor employees have been receiving generic instruction in the RWP regulation, which is certainly desirable. However, FRA expects that railroads will require their contractors to adopt the on-track safety rules of the railroad upon which the contractor is working. Where contractors require specialized on-track safety rules for particular types of work, those rules must, of course, be compatible with the rules of the railroad upon which the work is being performed. If a contractor shows up at a railroad with a “training card” from a generic seminar, such training generally does not provide the specific elements that the contractor employee needs to know about a particular railroad’s on-track safety procedures. Unless every railroad uses the exact same rules and procedures, it is not possible to expect a generic RWP training course to provide knowledge on all the procedures used throughout the Nation. Accordingly, it is incumbent on contractors to contact a carrier before beginning work to determine how the railroad’s specific training is to be accomplished. The regulation allows contractors to conduct their own training, but it must be understood that such training for the basic worker must have the railroad-specific elements under Sec. 214.345 (Training for All Roadway Workers).

Q-6. What training is required for roadway workers?

A. Sec. 214.345, Training for all roadway workers, requires that the training shall include, as a minimum, the following:

a) The recognition of railroad tracks and an understanding of the space around them within which on-track safety is required;
b) The functions and responsibilities of various persons involved with on-track safety procedures;
c) Proper compliance with on-track safety instructions given by persons performing or responsible for on-track safety functions;
d) Signals given by watchmen/lookouts, and the proper procedures upon receiving a train-approach warning from a lookout;
e) The hazards associated with working on or near railroad tracks, including a review of on-track safety rules and procedures.

Since most contractor employees do not assume the additional functions of a roadway worker in charge (RWIC), a flagman, or a watchman, they generally will not need such additional training or qualification. Regarding such items as “certification cards,” the RWP regulation does not specify cards, but does require training records.

Sec. 214.343 (d), Training and qualification, general (Final Rule pg. 65980), also states – “Each employer of roadway workers shall maintain written or electronic records of each roadway worker qualification in effect. Each record shall include the name of the employee, the type of qualification made, and the most recent date of qualification. These records shall be kept available for inspection and photocopying by the Federal Railroad Administrator during regular business hours.”

The RWP regulation does not mandate that railroads maintain records of contractor employees that have received RWP training. However, if a railroad elects to train contractor employees in RWP, it would be advantageous for a railroad to maintain such records. In either case, records must be maintained in accordance with Sec. 214.343 (d) noted above.

For contractors that work on many railroads, RWP can be a significant issue. However, since the basic training under Sec. 214.343 does not require costly resources, railroads and contractors should work out the methodology on how contractor employees are to receive their specific training from property to property. This could be in the form of basic Sec. 214.343 on-the-spot training by a railroad representative or contractors conducting their own training of individual railroad rules. However, it is incumbent on the railroads and contractors to work out these details, and contractor training must mirror the individual railroad’s on-track safety rules. Please keep in mind that a contractor employee who will be performing work, such as operating a roadway maintenance machine, or acting as a watchman, etc., will require the additional requisite training.