Railroad Workplace Safety; Adjacent-Track On-Track Safety for Roadway Workers, 1743-1771 [2013-31417]

Download as PDF Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefor in the notice. Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the Federal Register. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued. In our view, this correcting document does not constitute a rule that would be subject to the APA notice and comment or delayed effective date requirements. This correcting document simply adds the applicability date that was inadvertently omitted and does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. In addition, even if this correcting document were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the correction in this document into the January 2, 2014 correcting document (which corrected the FY 2014 SNF PPS final rule) or delaying the effective date would be contrary to the public interest, because it is in the public’s interest for providers to receive appropriate SNF PPS payments in as timely a manner as possible. Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, are simply adding the applicability date that was inadvertently omitted. Therefore, we find good cause to waive notice and comment procedures, as well as the 30day delay in effective date. IV. Correction of Errors In FR Doc. 2013–31435 of January 2, 2014 (79 FR 63), make the following corrections: 1. On page 63, in the DATES section, the caption and sentence, ‘‘DATES: Effective Date: This correction is effective January 2, 2014.’’ are corrected to read as follows: VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 Effective Date: This correcting document is effective January 2, 2014. Applicability Date: This correcting document is applicable to skilled nursing facility services furnished on or after January 1, 2014.’’ DATES: (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program) Dated: January 6, 2014. Jennifer Cannistra, Executive Secretary to the Department, Department of Health and Human Services. [FR Doc. 2014–00277 Filed 1–8–14; 4:15 pm] BILLING CODE 4120–01–P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 214 [Docket No. FRA–2008–0059, Notice No. 8] RIN 2130–AC37 Railroad Workplace Safety; AdjacentTrack On-Track Safety for Roadway Workers Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule; response to petitions for reconsideration. AGENCY: This final rule responds to two petitions for reconsideration of FRA’s final rule published November 30, 2011, which would have amended the existing regulations governing the on-track safety protections of roadway workers from the movement of trains or other on-track equipment on an adjacent controlled track, but which has not taken effect. In response to the petitions for reconsideration, FRA delayed the effective date of the November 30, 2011, final rule until July 1, 2013 (subsequently delayed until July 1, 2014), and requested comments on the petitions. This document further responds to the petitions, addresses the comments on the petitions, and amends and clarifies certain sections of the November 30, 2011, final rule. DATES: The amendments in this final rule are effective on July 1, 2014. FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track Division, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., RRS–15, Mail Stop 25, Washington, DC 20590 (202) 493–6236; or Joseph E. Riley, Track Specialist, Track Division, Office of Safety SUMMARY: PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 1743 Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., RRS–15, Mail Stop 25, Washington, DC 20590 (202) 493–6357; or Joseph St. Peter, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RRS–10, Mail Stop 10, Washington, DC 20590 (202) 493–6052. SUPPLEMENTARY INFORMATION: I. Executive Summary On November 30, 2011, FRA published a final rule (Final Rule) governing the on-track safety protections of roadway workers from train movements on adjacent controlled tracks. 76 FR 74586. The Final Rule requires that railroads adopt specified on-track safety procedures to protect certain roadway work groups from the movement of trains or other on-track equipment on an adjacent controlled track. These on-track safety procedures are required for each adjacent controlled track when a roadway work group with at least one of the roadway workers on the ground is engaged in a common task with on-track, self-propelled equipment or coupled equipment on an occupied track. An adjacent controlled track is a controlled track whose track center is spaced 19 feet or less from the track center of an occupied track. After publication of the Final Rule, FRA received two petitions for reconsideration (Petitions) of certain of the Final Rule’s requirements. The requests made in the Petitions are described in detail below. In response to the Petitions, FRA is modifying the Final Rule (Final Rule Amendments; Amendments) to do the following: (1) Expand the definition of ‘‘minor correction’’ to include welding and certain uses of any handheld power tools; (2) increase the maximum authorized speed at which passenger trains may move on an adjacent controlled track to 40 mph while roadway workers continue their onground work on the occupied track; (3) delete the requirement that a noncontrolled track whose track center is spaced 19 feet or less from the occupied track be treated as an adjacent controlled track; (4) exempt rail-bound vehicles (on-track vehicles not equipped with highway wheels) used for conducting inspections or performing minor correction work (including welding) while applying the same limitations that apply to hi-rail vehicles; (5) and expand the exception pertaining to repairs performed alongside the roadway work machine or equipment to include work within the perimeter of the machine or equipment. FRA previously delayed the effective date of E:\FR\FM\10JAR1.SGM 10JAR1 1744 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations the Final Rule until July 1, 2014 (78 FR 33754). FRA is denying the request to permit roadway workers to resume work after the leading-end of a train or other on-track equipment traveling over 25 mph (40 mph passenger) has passed a roadway work group on an adjacent controlled track, and has retained the Final Rule’s requirement that the entire train must pass the work zone. The Amendments and the other issues raised by the Petitions are described in further detail below, and the discussions of the items being modified should be read in conjunction with the specific discussion in the Section-bySection Analysis that identifies the modifications being made to the text of the Final Rule. For a full discussion of those aspects of the rulemaking and the Final Rule that remain unchanged, FRA respectfully refers interested parties to the agency’s preamble discussions and Section-by-Section Analysis of the Final Rule and the NPRM. See 76 FR 74586 and 74 FR 61633, respectively. Amendments to the final rule Potential cost implications Expanding the definition of ‘‘minor correction’’ to include welding and certain uses of any handheld power tools. Negligible. Very small increase in risk. No quantifiable increases in casualties. Negligible ........................... Increasing the maximum authorized speed at which passenger trains may move on an adjacent controlled track to 40 mph while roadway workers continue their on-ground work on the occupied track. Deleting the requirement that a non-controlled track whose track center is spaced 19 feet or less from the occupied track be treated as an adjacent controlled track. Exempting rail-bound vehicles (on-track vehicles not equipped with highway wheels) used for conducting inspections, performing minor correction work (including welding), while applying the same limitations that apply to hi-rail vehicles. Expanding the exception pertaining to repairs performed alongside the roadway work machine or equipment to include work within the perimeter of the machine or equipment. Total .......................................................................... FRA estimated the costs associated with the additional flexibilities provided by the Amendments being made in response to the Petitions in terms of increased risk and the benefits in terms of cost savings relative to the burdens imposed by the Final Rule. The table below presents the present value of these estimates for the first 20 years of this rule discounted at 3 percent and 7 percent. Benefits: Estimated cost savings (PV, 7%) Benefits: Estimated cost savings (PV, 3%) $158.9 Million 1 .................. $223.2 Million. $33.4 Million 2 .................... This estimated benefit only considers cost savings for LIRR and MetroNorth. $8,000 3 ............................. $46.9 Million. This estimated benefit only considers cost savings for LIRR and MetroNorth. $11,200. N/A ..................................... N/A ..................................... N/A. Negligible. Minor reduction in the safety benefit of workers extricating themselves from under machinery so as to be safe in the event a collision with the machinery. $149.2 Million 4 .................. Non-quantified benefits include lowered injury risks due to fewer instances of workers having to extract themselves from a machine each time a train passes. $208.3 Million. Non-quantified benefits include lowered injury risks due to fewer instances of workers having to extract themselves from a machine each time a train passes. ............................................ $341.6 Million .................... $478.4 Million. None: FRA has no record of past casualties covered by this provision. All values are discounted (PV, 7 and 3%) for a 20-year period. mstockstill on DSK4VPTVN1PROD with RULES II. Background On January 26, 2005, the Railroad Safety Advisory Committee (RSAC) formed the roadway worker protection (RWP) Working Group to consider specific actions to advance the on-track safety of employees of covered railroads and their contractors who are engaged in maintenance-of-way activities throughout the general system of railroad transportation, including clarification of existing requirements in 49 CFR part 214. The Working Group’s assigned task was to review the existing RWP regulation, technical bulletins, and a safety advisory dealing with on-track safety forroadway workers, and, as 1 From FRA staff estimate. discussion in section IV.A.2 below. Extrapolated from Long Island Rail Road (LIRR) estimate to include the Metro-North Commuter 2 See VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 appropriate, consider enhancements to the existing rule that would further reduce the risk of serious injury or death to roadway workers. The Working Group was directed to report specific actions identified as appropriate, including planned milestones for completion of projects and progress towards completion, to the full RSAC at each scheduled RSAC meeting. The Working Group was comprised of members from the following organizations: • American Public Transportation Association (APTA); Railroad Company, in proportion to passenger miles. 3 From FRA staff estimate. 4 The cost savings estimate is based on an annual $14 million in costs from AAR’s comment on the Petitions. FRA believes that the amendments to the Final Rule will avoid these costs that AAR’s comment raised. PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 • American Short Line and Regional Railroad Association (ASLRRA); • American Train Dispatchers Association; • Association of American Railroads (AAR), including members from BNSF Railway Company (BNSF), Canadian National Railway Company (CN), Canadian Pacific Railway, Limited (CP), Consolidated Rail Corporation (Conrail), CSX Transportation, Inc. (CSXT), The Kansas City Southern Railway Company (KCS), Norfolk Southern Corporation railroads (NS), and Union Pacific Railroad Company (UP); • Belt Railroad of Chicago; • Brotherhood of Locomotive Engineers and Trainmen; • Brotherhood of Maintenance of Way Employees Division (BMWED); • Brotherhood of Railroad Signalmen (BRS); • FRA; E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations • Indiana Harbor Belt Railroad; • Long Island Rail Road (LIRR); • Metro-North Commuter Railroad Company (Metro-North); • Montana Rail Link; • National Railroad Construction and Maintenance Association; • National Railroad Passenger Corporation; • Northeast Illinois Regional Commuter Railroad Corporation; • RailAmerica, Inc.; • Southeastern Pennsylvania Transportation Authority; • United Transportation Union; and • Western New York and Pennsylvania Railroad. The Working Group held 12 multi-day meetings and was able to reach consensus on 32 separate items related to how to amend existing part 214’s roadway worker protection requirements. On June 26, 2007, the full RSAC voted to accept the recommendations presented by the Working Group. One of the issues on which the Working Group was able to reach consensus dealt specifically with adjacent-track on-track safety issues. In light of roadway worker fatality trends involving adjacent track protections, and to expedite the lowering of the safety risk associated with roadway workers fouling adjacent tracks, FRA decided to undertake this rulemaking proceeding separately, and in advance of a rulemaking addressing all of the consensus items, to specifically address adjacent-track safety issues contemplated by the Working Group. Accordingly, FRA published an NPRM addressing adjacent-track on-track safety on July 17, 2008 (73 FR 41214), but formally withdrew the NPRM on August 13, 2008 (73 FR 47124). FRA then issued a revised NPRM, which was published on November 25, 2009 (74 FR 61633), and the Final Rule, which was published on November 30, 2011 (76 FR 74586), and which was to become effective on May 1, 2012.5 The Final Rule, upon its effective date, will replace FRA’s existing provision governing adjacent-track on-track safety procedures for roadway workers at 49 CFR 214.335(c). That existing provision only requires that train approach warning be provided on adjacent tracks that are not included within working limits for roadway work groups engaged in large-scale maintenance or construction projects. The Final Rule specifies more comprehensive on-track safety procedures that must be adopted and followed to protect roadway 5 The Final Rule is now scheduled to take effect July 1, 2014. 78 FR 33754. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 workers from the movement of trains or other on-track equipment on an ‘‘adjacent controlled track’’. An ‘‘adjacent controlled track’’ is a track whose track center is spaced 19 feet or less from the track center of the occupied track on which a roadway work group is conducting work with at least one of the roadway workers on the ground engaged in a common task with on-track, self-propelled equipment or coupled equipment. The Final Rule requires that a non-controlled track whose track center is spaced 19 feet or less from the track center of the occupied track be treated as an adjacent controlled track for purposes of establishing on-track safety when there is an adjacent controlled track on the opposite side of the occupied track. When train or other on-track equipment movements on an adjacent controlled track are permitted to be made at speeds greater than 25 mph, roadway workers on the occupied track must cease work and occupy a predetermined place of safety. When movements on the adjacent controlled tracks are permitted to be made at speeds of 25 mph or less, the Final Rule permits roadway workers on the occupied track to continue work, provided that the work is performed exclusively between the rails of the occupied track, and provided that no on-ground work is performed within the areas 25 feet in front of and 25 feet behind any on-track, self-propelled equipment or coupled equipment permitted to move on the occupied track. The Final Rule also establishes three categories of exceptions: (1) Onground work performed on a side of the occupied track meeting specified condition(s); (2) maintenance or repairs performed alongside machines or equipment on the occupied track; and, (3) work activities involving certain equipment and purposes. If the equipment specified in one of the exceptions is being used for inspection or minor correction purposes, and otherwise meet the criteria for the exception, the work group would not be required to establish adjacent-track ontrack safety. In the Final Rule, FRA added a definition for the term ‘‘minor correction’’ that did not include welding activities or work involving power hand tools other than handheld pneumatic power tools. In response to the Final Rule, FRA received two petitions for reconsideration that raised substantive issues. AAR and ASLRRA filed a joint Petition (AAR/ASLRRA Joint Petition), and APTA also filed a Petition (APTA’s Petition). The AAR/ASLRRA Joint Petition included a request for a delay PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 1745 in the effective date of the Final Rule until July 1, 2013. The Petitions raised issues relating to the cost-benefit analysis of the Final Rule, and also requested relief from several specific provisions of the Final Rule, principally related to the following subjects: The definition of ‘‘minor correction’’; the requirement that a roadway work group cease working until the trailing end of a train authorized to travel more than 25 mph has passed the roadway work group; the treatment of an adjacent noncontrolled track as a controlled track; an additional exception for maintenance or repairs being performed within the perimeter of a roadway maintenance machine; an additional exception for manual inspections being conducted by rail bound vehicles; the release of working limits when the roadway work group is in the clear; the application of the Final Rule to repair and maintenance of roadway maintenance machines; the effective date of the Final Rule; and the maximum speed at which passenger trains may pass a roadway work group on an adjacent occupied track while the roadway work group continues its on-ground work on the occupied track. On March 8, 2012, FRA published a final rule delaying the effective date of the Final Rule until July 1, 2013, and establishing a 60-day comment period in order to permit interested parties an opportunity to respond to the Petitions. 77 FR 13978. FRA received five comments on the Petitions from the following parties: AAR; BMWED and BRS (BMWED/BRS joint comment); APTA; LIRR; and Metro-North. Some of the comments raised additional substantive issues or provided further detailed information on the issues already raised in the Petitions. The Petitions and the comments on the Petitions are available for review in the docket for this rulemaking.6 On August 31, 2012, FRA published a Federal Register document which explained that, due to the complex issues raised and extensive estimates provided in the Petitions and public comments received, FRA was continuing to formulate an appropriate response. 77 FR 53164. FRA noted that the response to the Petitions would be published as soon as practicable. On June 5, 2013, FRA published another final rule delaying the effective date of the Final Rule until July 1, 2014, explaining that FRA’s response to the Petitions was still being reviewed, and that this effective date would allow railroads appropriate 6 See Docket No. FRA–2008–0059; available online at https://www.regulations.gov/#!docket Detail;D=FRA-2008-0059. E:\FR\FM\10JAR1.SGM 10JAR1 1746 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations time to implement the requirements of, and train their employees on, the requirements of the Amended Final Rule prior to its effective date. 78 FR 33754. Below, this document addresses all of the issues raised in the Petitions and also in the public comments received in response to the Petitions. III. Issues Raised by the Petitions A. Cost-Benefit Analysis Both Petitions raised concern with FRA’s cost-benefit analysis of the Final Rule requirements, such as by saying that the Final Rule did not accurately account for the costs of the Final Rule and that the Final Rule overstated its potential benefits (AAR/ASLRRA). AAR, APTA, LIRR, and Metro-North also raised concerns related to the cost of the Final Rule’s requirements in their comments on the Petitions. FRA has chosen to grant many of the requests for relief raised in the Petitions. Thus, many of the concerns related to cost have been alleviated, as is explained further below. Further, FRA has calculated the costs and benefits of the Amended Final Rule based on information conveyed in the Petitions and in the comments. The chart below reflects a comparison of (1) the costs and benefits of the Final Rule as originally estimated by FRA, (2) the costs and benefits of the Final Rule as asserted by AAR, and (3) the costs and benefits of the Amended Final Rule as currently estimated by FRA 7: Estimated cost-benefit comparison * Costs Benefits FRA’s Original Estimate of 20-Year Costs and Benefits of the Final Rule ...................................................... AAR’s Asserted 20-Year Costs and Benefits of the Final Rule as Asserted in Comments on Petition for Reconsideration. FRA’s Current Estimate of the 20-Year Costs and Benefits of the Amended Final Rule ................................ $151 Million ...... $2.1 Billion ........ $151 Million. $64 Million. $22 Million ........ $108 Million. * PV 7-Percent for all figures listed. mstockstill on DSK4VPTVN1PROD with RULES While not required to complete a Regulatory Impact Analysis (RIA) in responding to petitions for reconsideration, FRA has done so here, in section V.A. of the preamble below. The RIA below addresses the five modifications being made to the Final Rule, and the resultant cost-savings impacts and qualitative benefits of those modifications. The RIA for the Final Rule Amendments also takes into account the new value of a statistical life (VSL) to be used for DOT analyses assessing the benefits of rulemakings.8 Further, FRA has also completed a sensitivity analysis (Special Sensitivity Analysis) of the Amended Final Rule that will be posted in the public docket for this rulemaking. While also not required to complete such a supplementary analysis in responding to petitions for reconsideration, FRA has done so here in order to fully inform all interested parties of the costs and benefits associated with this rulemaking in its entirety (to include the modifications being made by the Amendments) after considering all of the information provided in the Petitions related to the Final Rule’s RIA. The Special Sensitivity Analysis addresses the specific cost-benefit related items raised in the Petitions and in the comments that are not otherwise addressed by the modifications of the Final Rule and the interpretations explained below. (See the Special Sensitivity Analysis, the RIA below, and the discussion in section III.C. of the preamble below for further discussion related to the costs of the ‘‘trailing end’’ provision at § 214.336(b)(2) and any resultant train delays.) 7 The difference between FRA’s estimate on the costs and benefits of the Amended Final rule relative to AAR’s estimate as stated in its comment on the Petitions is due to both regulatory changes being made in the Final Rule Amendments and differences in how FRA and AAR formulated the estimates. AAR’s estimate in its comment on the Petitions is not broken down by specific provision of the Final Rule, so within a given cost category FRA’s analysis may differ for multiple reasons. AAR’s estimate does break costs into five categories: Additional watchmen needed to comply with the Final Rule; train delay; lost productivity; training of maintenance of way employees; and job briefings. The largest cost category AAR estimates involves the need for additional watchmen/lookouts, which AAR estimates will cost approximately $1.4 billion over 20 years at a 7 percent discount rate. Under the Amended Final Rule, FRA does not believe new watchmen/lookouts will need to be hired (see below discussion). FRA’s conclusion is based on an analysis of the combination of relief granted in the Final Rule Amendments and differences between how FRA and AAR understand that railroads will comply with the Amended Final Rule’s requirements. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 1. Training Costs For purposes of the Special Sensitivity Analysis, FRA has adjusted its estimate for the amount of time that it would take to train roadway workers on the requirements of this rulemaking. FRA had originally estimated that it would take five minutes of additional training for roadway workers in year 1, and two minutes of additional training per year in subsequent years. AAR’s comment asserts that four hours of additional training time will be required in year 1, and one hour of additional training time per year thereafter. Based on AAR’s assertion, along with FRA staff experience in teaching the subject matter contained in the Final Rule internally, FRA has adjusted its training estimate in the Special Sensitivity Analysis to four hours for year 1, and to one hour for each year thereafter. This adjustment raised the training cost estimate in the Special Sensitivity PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 Analysis from $182,271 (when discounted at 7 percent over 20 years) to $12.17 million (when discounted at 7 percent over 20 years). The details of this calculation may be found in section 2.1 the Special Sensitivity Analysis. These costs are not affected by the Amendments, in which FRA is removing burdens that it had not included in training cost estimates previously. 2. Casualty Estimates and Injury Data The AAR/ASLRRA Joint Petition stated that ‘‘the record just does not support a finding that there will be benefits in the areas addressed by this petition for reconsideration.’’ The AAR/ ASLRRA Joint Petition did not allege that the number of injuries that FRA estimated would be prevented by the Final Rule (93.6) over 10 years was too high, but AAR’s later comment on the Petitions directly challenged the number of such injuries. Specifically, AAR estimated that only 13 of 90 total injuries that AAR identified in an analysis of non-fatal injuries from 1999– 2008 should be included, resulting in AAR’s adjustment of FRA’s estimate from 9.36 injuries prevented per year to 1.35. AAR claimed that reports of the other 77 injuries specified involvement of maintenance-of-way equipment or 8 Since publication of the Final Rule, the value of a statistical life (VSL) to be used for DOT analyses assessing the benefits of preventing fatalities has increased to $9.1 million, allowing for 1.07 percent annual growth in median real wages in future years before discounting to present value. The revised benefit analyses for the Amendments and the Amended Final Rule utilized this updated VSL. See ‘‘Guidance on Treatment of the Economic Value of a Statistical Life in U.S. Department of Transportation Analyses’’; available online at https://www.dot.gov/regulations/economic-valuesused-in-analysis. E:\FR\FM\10JAR1.SGM 10JAR1 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES construction equipment, or no equipment at all, and that the equipment was probably working in the same gangs and probably on the occupied track in most cases. AAR apparently did not consider an incident in which a roadway worker was struck by maintenance-of-way equipment as relevant to this rule,9 and that view could account for some of the difference between the FRA and AAR estimates. However, upon further review of the narratives providing more details as to the circumstances and extent of the injuries, FRA has determined that its original estimate was too high. For purposes of the revised economic analysis in the Special Sensitivity Analysis, FRA has used AAR’s injury estimate as stated in its comment on the Petitions by adjusting it to 1.35 injuries per year. However, FRA believes the number of injuries per year could likely be increased to 1.62, at a minimum, because 1.62 is the AAR estimate of 1.35 per year, plus 20 percent. The 20-percent increase is based on findings from the original RWP rulemaking in 1996, where FRA found that roughly 20 percent of RWP injuries had been incorrectly assigned to other cause codes. The reduction in estimated number of injuries would reduce the estimated benefit over 20 years by $58,571,993 using a 7-percent discount factor or $42,717,512 using a 3-percent discount factor. This represents a roughly 28-percent decrease in total benefits estimated by FRA. In addition, the AAR/ASLRRA Joint Petition and the AAR comment challenged the number of fatalities that FRA estimated would have been prevented by the Final Rule. MetroNorth, in its comment, offered to partner with FRA to perform a safety analysis of the adjacent-track scenarios for which it requested relief to demonstrate that the Final Rule would not save .6 fatalities annually. (Metro-North’s comment did not provide a suggested fatality estimate.) AAR’s comment argued that in four of the seven fatalities discussed in Appendix E to the Final Rule’s RIA (Appendix E), that a significant level of roadway worker protection was already being provided on the adjacent track and that the incidents could just as well have occurred under the Final Rule. As a result, AAR explained, FRA’s estimate 9 It appears AAR failed to consider a roadway worker’s being struck by maintenance-of-way equipment as relevant despite that the Final Rule addresses movements of ‘‘other on-track equipment’’ on adjacent controlled tracks and establishes a 25-foot buffer zone between roadway workers and such equipment as a condition for permitting certain work to continue on the occupied track during low-speed movements on the adjacent-controlled track. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 of .6 fatalities per year should be reduced by 4/7 to .34. Note, however, that AAR apparently intended to reduce FRA’s estimate by 3/6 to .3, as the first incident listed in Appendix E that AAR challenged was not included in FRA’s estimate of the benefits because it occurred in 1998, and was outside of the 10-year data period of 1999–2008. Appendix E included all of the relevant adjacent-track fatalities since the original RWP rule went into effect in 1997. Since publication of the Final Rule, a roadway worker fatality occurred on July 5, 2013, in Chicago, Illinois, when a railroad employee was struck by a train passing on an adjacent controlled track. That incident remains under investigation by FRA and the National Transportation Safety Board. Further, FRA stands by including in the estimate of benefits incidents number 3 and 5 as listed in Appendix E that AAR’s comment challenged. Incident number 3 as listed in Appendix E involved a surfacing gang with several roadway workers on the ground working in common with the on-track selfpropelled equipment on the occupied track. The fatally injured employee did not have adjacent controlled track protection in place at the time of the incident. He was struck while fouling the adjacent track. The Final Rule would have required, at a minimum, that train approach warning have been provided when the train approached on the adjacent track. If the Final Rule’s requirements had been in effect, the roadway worker in charge would have been required to ensure that all roadway workers (including himself) were clear of the adjacent controlled track prior to releasing foul time authority for a train movement on the adjacent track, and then, would also have had to employ train approach warning as the form of on-track safety on the adjacent track. When this incident occurred, the train was traveling at 45 mph at impact. The Final Rule would have required that that the freight train’s speed be reduced to 25 mph when passing the roadway work group on the occupied track if their work was to continue while the train passed. Further, the Final Rule would have prohibited any roadway worker from being in the foul of the adjacent track or beyond the plane of the rail of the occupied track closest to the adjacent controlled track once the train was authorized through the working limits or when a warning was provided by a watchman/lookout utilizing train approach warning. Observance of the Final Rule’s requirements would have prevented this fatality. PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 1747 Incident number 5 as listed in Appendix E also involved a roadway work group (surfacing gang) performing work on the ground on an occupied track in common with on-track, selfpropelled equipment (tamper and regulator). Under the Final Rule, the adjacent controlled track (13′6″ track centers) would have required the establishment of working limits any time the regulator wing was deployed toward the adjacent controlled track, and, at a minimum, that train approach warning be used as the method of ontrack safety for the adjacent track at all other times. Adjacent track protection was not in place at the time of the accident. The Final Rule would require that freight train speeds be reduced to 25 mph for adjacent track movements where work continues on the occupied track. The train in this incident was moving on the adjacent track at 50 mph. The roadway worker in charge was fouling the adjacent controlled track when struck. Under the Final Rule the nearest he or she would have been allowed to be to the occupied track was in the gage of the occupied track without breaking the plane of the rail closest to the adjacent track that the train was moving on, but only then if the freight train’s speed had been limited to 25 mph (otherwise he or she would have had to cease work and occupy a place of safety if the train was authorized to pass at its actual speed of 50 mph). Finally, AAR argued that the fatality in incident number 6 listed in Appendix E would not have been prevented by compliance with the Final Rule’s requirements. FRA disagrees. Again, under the Final Rule’s requirements, the struck employee would have had to receive train approach warning as the train moved toward the struck employee’s location on the adjacent controlled track after foul time (which had been previously been established on the adjacent controlled track) was released. Even though FRA disagrees with AAR regarding this fatality that occurred on a commuter railroad, in the accompanying Special Sensitivity Analysis FRA has not counted this fatality as a benefit of the Amended Final Rule. Instead, FRA has only calculated benefits for five fatalities that occurred during the 1999–2008 analysis period, as FRA focused its analysis on impacts affecting freight operations in light of AAR’s submissions after publication of the Final Rule. AAR’s comment argued that some of the requirements of the Final Rule are similar to existing requirements that were not followed in some of the incidents. As mentioned above, E:\FR\FM\10JAR1.SGM 10JAR1 1748 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES however, given the respective speeds of 45 and 50 mph at which the trains were passing the roadway work groups at the time incident numbers 3 and 5 occurred under the requirements of the Amended Final Rule all roadway workers would have had to have previously occupied a predetermined place of safety upon notification that a train was being permitted through the working limits at a speed of greater than 25 mph.10 As AAR’s comment also mentioned, for both incident numbers 3 and 5, it does not appear there was any form of ontrack safety was being provided on the adjacent controlled tracks at the time those incidents occurred. Further, the procedures for adjacent-track on-track safety set forth in the Final Rule are more comprehensive and specific (e.g., with regard to where the roadway workers are permitted to be located during the time that a train or other ontrack equipment is authorized to pass the roadway workers’ location), and FRA’s inclusion of these fatalities is supported. In addition, the heightened job briefing requirements of the Final Rule will raise awareness of adjacenttrack movements and the required roadway worker protections from such movements. 3. Miscellaneous Costs This section discusses assorted cost items that are not otherwise explained below and that the AAR/ASLRRA Joint Petition and AAR’s comment asserted were missing from the RIA or estimated inaccurately. First, the AAR/ASLRRA Joint Petition and the AAR comment discussed the potential need for railroads to purchase more trucks in which to transport additional roadway workers to work sites. This concern appeared to be particularly related to the Final Rule’s definition of ‘‘minor correction’’ as that definition excluded welding activities and also inadvertently described hand-operated power tools more narrowly than FRA had intended. In the Amendments FRA has expanded that definition to both include welding and account for additional hand operated power tools as explained below; therefore, AAR’s cost concern has been alleviated. Further, FRA’s decision to include rail-bound vehicles in the ‘‘hi-rail’’ exception per AAR’s request further addresses this cost concern. Second, AAR’s comment addressed the number of workdays per year (195) that FRA had assumed in the Final Rule for purposes of estimating costs, stating 10 Incident number 1 that AAR’s comment challenged occurred in 1998 and was not included in the Final Rule RIA’s benefit analysis. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 that it was a somewhat low, but still reasonable, estimate for large productions gangs rather than the smaller gangs that the Final Rule would most affect. AAR instead recommended that FRA estimate costs using the assumption of 250 workdays per year. The number of workdays per year was calculated at the time that FRA published the first NPRM in this rulemaking. In the first NPRM, the proposed rule text excluded hi-rails without condition. As the ‘‘hi-rail’’ exception was later narrowed during this rule’s development, FRA’s assumption of 195 workdays per year was not adjusted to take into account that roadway work groups work more continuously throughout the year utilizing hi-rail vehicles only. However, as FRA has made the below-described modifications to the Final Rule (e.g., expanding the ‘‘hi-rail’’ exception by modifying the definition of ‘‘minor correction’’ and including other railbound vehicles), FRA believes that AAR’s concern regarding the number of shifts being used has been addressed. After reviewing timetables and tonnage data from two of the four largest Class I railroads in light of the different schedules of large production gangs and smaller maintenance gangs, FRA believes that its original estimate (combined with the modifications made to the Final Rule) of 195 workdays per year was actually conservative, and that the number of workdays could be adjusted down to 185 days. However, for purposes of the Special Sensitivity Analysis, in order to be very conservative, FRA has accepted the AAR estimate of 250 workdays per year for section gangs and bridge gangs, but has used 180 days per year for surfacing gangs. Based on FRA experience, these gangs tend to work during a more limited season, and FRA also used actual production gang data from a large Class I railroad to help estimate actual shifts. Next, the AAR/ASLRRA Joint Petition and AAR’s comment both stated that the Final Rule would require the hiring of additional watchmen/lookouts, and that FRA did not account for the costs of hiring those new employees. MetroNorth’s comments expressed concern that four of the Final Rule’s requirements would necessitate hiring additional watchmen/lookouts, and that those costs would outweigh the benefits. FRA has largely alleviated those stated cost concerns with the modifications made in the Amendments. FRA’s modifications to the definition of ‘‘minor correction’’ and the addition of rail-bound vehicles to the ‘‘hi-rail’’ exception specifically address three of PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 Metro-North’s four stated concerns.11 FRA does not believe that railroads will have to hire additional watchmen/ lookouts to comply with the Amended Final Rule, as the modifications being made here eliminate the need to hire additional watchmen/lookouts for the welding and section gangs that the AAR/ASLRRA Joint Petition specifically discussed. Further, the Joint Petition and the AAR comment discussed the need to hire additional watchmen/lookouts for small division surfacing gangs, and generally to hire more roadway workers to make up for lost productivity as a result of the need to stop work and clear the occupied track when trains pass the work zone under the Final Rule. However, as is further discussed below and in the Special Sensitivity Analysis, FRA conducted an analysis of the Amended Final Rule’s requirements, and has found that stopping work would be more costly than slowing freight trains for any likely roadway work groups on an adjacent occupied track once the volume of train traffic reaches a certain level, especially since stopping work increases the time of track occupancy required to perform the maintenance, and the track occupancy itself by the roadway work group is the most costly factor involved in the analysis. With regard to the concern in AAR’s comment regarding the need to hire additional watchmen/lookouts for small division surfacing gangs, FRA notes that in such small division surfacing gangs oftentimes an existing member of the roadway work group, such as the roadway worker in charge or another roadway maintenance machine operator, is available to act as a watchman/lookout when necessary. Further, existing § 214.335(c) has long required that train approach warning for movements on adjacent tracks not included within working limits be provided to roadway work groups engaged in large-scale maintenance or construction. In addition, on-track safety on an adjacent track is already required to be provided if roadway workers have the potential to foul that adjacent track. In the instances where watchmen/lookouts are deployed under the Final Rule, those watchmen/ lookouts are roadway workers who will already be performing roadway work along the railroad right of way, and FRA is unable to quantify whether there are increased risks while performing duties 11 Metro-North’s fourth concern regarding the need for watchmen/lookouts for roadway workers performing maintenance or repair is addressed further below. E:\FR\FM\10JAR1.SGM 10JAR1 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES as a watchman/lookout versus performing other roadway work duties as part of the same roadway work group. Last, the concerns regarding train delay and lost productivity that were raised by the AAR/ASLRRA Joint Petition and in several comments are addressed by the modifications being made to the Final Rule that are addressed in the discussions below, and in the Special Sensitivity Analysis. B. Definition of ‘‘Minor Correction’’ (Section 214.336(a)(3) of the Final Rule) One of the exceptions to the Final Rule’s requirement for adjacent-track on-track safety permits work of a roadway work group to continue during times that the roadway work group is exclusively performing work activity involving a hi-rail vehicle being used ‘‘for inspection or minor correction purposes.’’ The Final Rule defined ‘‘minor correction’’ as ‘‘one or more repairs of a minor nature, including, but not limited to, spiking, anchoring, hand tamping, and joint bolt replacement that is accomplished with hand tools or handheld pneumatic tools only. The term does not include welding, machine spiking, machine tamping, or any similarly distracting repair.’’ Both the AAR/ASLRRA Joint Petition and AAR’s comment argued that the definition of ‘‘minor correction’’ should (i) include, not exclude, welding (because the welders typically confine their movements to the track on which they are working), and (ii) should not be limited to handheld pneumatic tools but rather expanded to encompass all hand tools, such as gas- and diesel-powered, hydraulic, electric, pneumatic, and perhaps others. Metro-North raised similar concerns in its comment. AAR’s comment asserted that, without these two changes to the Final Rule, the industry would incur a year 1 cost of $93 million and in subsequent years an annual cost of $82 million. The AAR/ ASLRRA Joint Petition argued that excluding welding from ‘‘minor correction’’ would effectively require an extra watchman for (1) welding gangs (because railroads never know when an emergency will occur where a thermite weld will be necessary) and (2) section gangs using hydraulic tools and other powered (i.e., non-pneumatic) hand tools. Further, AAR indicated that FRA failed to consider the costs for the additional watchmen/lookouts required (namely, wage and fringe benefits, the need to purchase larger trucks to accommodate an additional person, and new-hire training to replace employees who become watchmen/lookouts). Metro-North and APTA raised similar concerns regarding the added cost of VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 additional watchmen/lookouts for welding gangs and section gangs using hand tools (Metro-North), and for small maintenance gangs (APTA). APTA’s comment also mentioned the cost of transporting the additional employees to job sites and other associated costs, such as for additional training and equipment. The BMWED/BRS joint comment did not oppose the recommendation that FRA clarify which handheld power tools are permissible for ‘‘minor correction’’ work, and suggested that FRA expand that term’s definition to include ‘‘handheld power tools only’’ instead of ‘‘handheld pneumatic tools only.’’ However, the BMWED/BRS joint comment did oppose an expansion of the definition of ‘‘minor correction’’ to include welding, indicating that small and large welding crews very often divide up any necessary watchman/ lookout duties amongst themselves and that where circumstances prevent the use of watchmen/lookouts, another form of on-track safety is available for use. The BMWED/BRS joint comment also noted that thermite field welding operations are particularly dangerous due to the intricacy and complexity of the work, noise from the roadway maintenance machines, reduced visibility, and the necessity of thermite welders to position themselves both within the gage and to the outside rail of an occupied track when performing certain steps. In response to the Petitions, FRA is modifying the definition of ‘‘minor correction’’ to include both welding and certain uses of all handheld, handsupported or hand-guided power tools (such as hydraulic, pneumatic, gas powered, and others). FRA did not intend to limit the exception for handheld power tools so narrowly; therefore, FRA has removed the word ‘‘pneumatic’’ from the definition. With respect to welding operations, FRA is classifying welding as a ‘‘minor correction’’ activity. FRA weighed several factors in making the latter decision. First, the RSAC consensus language did not include hi-rail related welding activities, and in the Final Rule FRA did not specifically assess costs for the inclusion of such welding operations. Further, there have been no fatalities related to activities that would have been implicated by the Final Rule’s welding-related requirement. Next, welders often need to verify that no trains will be passing on the adjacent controlled track before igniting the charge for the weld because the weld could fail if a train were to pass by it before it has solidified. This verification PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 1749 element that is inherent in the welding process lessens the risk that the roadway workers would be struck by a train on an adjacent track. Welding is also often performed on the occupied track or immediately adjacent to the occupied track with little distraction, and, therefore, is not the type of activity intended to be covered by this rulemaking. Further, existing part 214 already requires that on-track safety be established on an adjacent track (typically by the welder’s helper serving as a watchman/lookout) during the portions of the welding task that create a potential to foul the adjacent track. See 49 CFR 214.315, 214.335. The BMWED/BRS joint comment failed to consider that the Final Rule, if unmodified, would have required that on-track safety be established on the adjacent controlled track for the duration of the welding task (as opposed to the occasional establishment of ontrack safety only when the potential to foul the adjacent controlled track exists under the existing RWP regulation). Again, FRA notes that for any welding activities that foul or have the potential to foul an adjacent track, that existing part 214 still requires that on-track safety be established on that adjacent track. AAR estimated that the additional costs of applying the adjacent-track provisions to welding operations would be $48 million in the first year and $37 million annually in subsequent years. FRA had not anticipated that the Final Rule would have such an impact on welding, and, thus, these costs had not been included in FRA’s original economic analysis. AAR stated that railroads would have to buy a number of trucks (i.e., motor vehicles not capable of moving on railroad track, rather than hi-rail vehicles) at $40,000 each to accommodate the additional watchmen/lookouts because existing ontrack welding trucks do not usually include sufficient cab space for one or more additional workers. AAR’s estimated cost of $40,000 per truck was too low to provide hi-rail vehicles for the additional workers. This fact implies that the additional roadway workers would gain access to the work area by riding in the additional truck and then by walking to the track requiring the weld from the nearest available point at which they can park the truck. This situation presents additional risks and the possibility of additional worker casualties from slipping and tripping hazards, limited visibility conditions, exposure to injury from traversing an other-than-public access way en route to the place on the track requiring welding, E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES 1750 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations and from other hazards along the rightof-way. In some cases, the watchmen/lookouts would not walk to the work area, but rather ride in an on-track welding truck would drop some workers near the work area, return to an access point, and pick up the remaining workers. The additional time of track occupancy needed to pick up, transport, and drop off roadway workers in these scenarios would be very costly, because FRA’s analysis of the Final Rule provisions shows that the greatest cost of occupying track comes from the occupancy itself, not from slowing trains on an adjacent track. FRA believes that AAR has potentially overstated these cost totals with regard to welding activities because in a high percentage of situations involving welding, the Final Rule’s requirements would not have applied. However, FRA does acknowledge that in order to be prepared for situations in which the Final Rule’s requirements would have applied to welding, that significant costs would have been incurred by the industry to purchase new hi-rails or trucks to accommodate a third roadway worker in certain situations. Last, it is not clear from the evidence that FRA currently has that the general inclusion of welding operations as within the scope of the term ‘‘minor correction’’ would reduce injuries from operation on adjacent tracks. However, if welding operations were not a ‘‘minor correction,’’ the evidence is clear that costs could increase substantially, and it is likely that new risks could be imposed by the fact that additional workers will have to travel to the welding worksites. FRA’s decision to modify the definition of ‘‘minor correction’’ to include welding operations and to expand the hand tools allowable under the definition to include ‘‘hand tools or handheld, hand-supported, or handguided power tools’’ eliminates the concern raised in the AAR/ASLRRA Joint Petition with regard to the cost of the activities excluded from the definition of ‘‘minor correction’’ in the Final Rule. This modification also addresses the concerns raised by MetroNorth and APTA regarding the added cost of additional watchmen/lookouts for welding gangs and section gangs using hand tools (Metro-North), and for small maintenance gangs (APTA). This modification also eliminates APTA’s concern regarding the cost of transporting the additional employees to job sites and regarding other associated costs, such as for additional training and equipment. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 C. Speed Increase for Passenger Trains and Other Passenger On-Track Equipment Passing Roadway Workers on an Adjacent Controlled Track (Paragraphs (b) and (c) of Section 214.336 of the Final Rule) Under the Final Rule, each roadway worker in a roadway work group that is affected by the movement of a train or other on-track equipment on an adjacent controlled track at an authorized speed of 25 mph or less is permitted to continue his or her on-ground work performed exclusively between the rails of the occupied track and outside the 25-foot zone to the front or rear of any on-track, self-propelled equipment or coupled equipment permitted to move on the occupied track. However, if the movement on the adjacent controlled track is authorized to exceed 25 mph, then the roadway workers on the occupied track must cease all on-ground work and occupy a predetermined place of safety, and equipment movement on the occupied track must also cease. APTA’s comments on the NPRM, Petition, and comment on the Petitions all requested that FRA raise the Final Rule’s 25-mph maximum authorized speed for adjacent-controlled-track passenger train movements during which roadway workers are allowed to continue to work. APTA noted that FRA did not adopt that request in the Final Rule. APTA’s comment indicated that, while quantifying the cost impacts of the Final Rule, to include this 25-mph maximum, is difficult, there is an indirect cost related to disruption of scheduled revenue service and loss of passenger business due to lack of service reliability. (E.g., TriRail experienced an almost 10-percent dip in passenger ridership during a construction project in which on-time performance averaged 68 percent.) APTA’s comment also speculated regarding the impacts on large-scale passenger operations, such as at New York City’s Penn Station. Similarly, LIRR alleged that implementation of the 25-mph maximum would lead to train delays, cancellations, and missed connections, due to the requirement to reduce to such speed on the adjacent track when work is being performed on the occupied track. LIRR indicated that if a 25-mph maximum speed restriction is put in place in the block between the Nassau and Divide towers during the hours between 10 a.m. and 3 p.m., when work is typically performed, that five eastbound trains and six westbound trains (affecting 5,000 to 10,000 riders) would need to be canceled. Other customers transferring from those trains PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 would also be affected. While no quantified costs have been provided related to the above scenarios, LIRR estimated increased yearly costs of $1.4 million as a result of the Final Rule’s requirements, because jobs would take longer to complete and might need to be performed on weekends and nights, when employee wage rates are higher. Also, although not directly alleging that the maximum speed was too low, AAR also noted that FRA failed to account for either passenger-train delay or freighttrain delay for situations where the use of watchmen/lookouts is not feasible or desirable, indicating that such situations shut down both the occupied track and the adjacent track on what are usually busy rail lines, and that delays range from ten minutes to an hour or more. The BMWED/BRS joint comment stated that the 25-mph maximum was a consensus agreement and should not be increased. The joint comment also stated that the 25-mph maximum speed for both passenger and freight trains when passing a roadway work group while work continues on an adjacent controlled track provides for uniformity within the Final Rule, and does not introduce additional hazards associated with conducting/ceasing work on an occupied track based upon different types of trains operating under different speed thresholds on the adjacent controlled track. The comment also noted that roadway workers in charge have the authority to permit the passenger trains through working limits at speeds higher than 25 mph (provided roadway workers on the occupied track would have to cease work and occupy a place of safety) and that it is not at all uncommon for passenger trains to be authorized through at speeds substantially over 40 mph. After considering the above-listed arguments, FRA is modifying the Final Rule by raising to 40 mph the maximum allowable speed for adjacent-controlledtrack movements by passenger rail traffic while roadway workers are permitted to continue their on-ground work on the occupied track. FRA considered the following factors when determining that granting the petition request regarding the 25-mph maximum speed is the appropriate course of action from a safety perspective. First, passenger trains are shorter than freight trains and do not present the dangers of shifted loads and swinging doors that exist for freight trains. Second, unlike much longer freight trains, commuter trains are only typically 6 to 8 cars in length, and whether traveling at 40 mph or 25 mph, pass within a matter of seconds. Because there is less danger of swinging doors and shifted loads, risk E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations exposure is much more minimal than when compared to a much longer passing freight train. Third, passenger equipment is typically narrower than comparable freight train equipment, meaning it is physically farther from roadway workers who continue work in the gage of the occupied adjacent track while a passenger train passes. Fourth, the type of shelf couplers utilized on passenger equipment is designed to keep equipment upright and in-line in the event of derailment. Fifth, the superior braking capabilities and shorter stopping distances of passenger equipment reduce risks while approaching and passing adjacent track roadway work zones. Sixth, trackcaused train derailments are a leading cause of accidents reported to FRA, and if a train were to derail on an adjacent controlled track while passing a roadway work group work on the occupied track, there are obvious casualty risks to the roadway work group. FRA’s Track Safety Standards, at 49 CFR part 213, have long differentiated between the speeds passenger trains and freight trains are permitted to travel on the same class of railroad track. For example, § 213.9(a) permits freight trains to travel only 40 mph over Class 3 track, while allowing passenger trains to travel 60 mph. This longstanding distinction permitting increased speeds for passenger trains was justified, with no loss in safety, generally because suspension systems on passenger trains are designed to provide a safer dynamic response than freight trains to the same track conditions.12 Last, FRA does not have data or analyses to show that the higher speed at which commuter trains currently pass work zones on an adjacent track is unsafe. Further, if the assertions in LIRR’s comment are correct and in some instances several thousand of LIRR’s passengers could be affected daily by the Final Rule’s 25-mph limitation, FRA believes unintended passenger safety issues could occur if the Final Rule’s speed restriction is not increased for passenger trains. Crowding, on both passenger platforms and on passenger trains that results from commuter train cancellations and delays, presents the potential for platform falls and other obvious risks to passenger safety. These cancellations and delays could occur because commuter train ‘‘meet’’ times can be critical in passenger operations 12 FRA proposed different speed limits for passenger and freight operations in 1972, largely relying on the differences in suspension systems used. 37 FR 18398. The rule was adopted as proposed in 1973. 38 FR 873. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 when a missed meet for one train often compounds and affects later-scheduled trains. Further, a 25-mph limitation for commuter trains could have the unintended impact of encouraging passengers to take other modes of transportation, namely automobiles. Automobile travel is statistically less safe than passenger train travel and is also less fuel efficient. As media coverage of the recent May 2013, MetroNorth train accident in Bridgeport, Connecticut, illustrates, passenger train cancellations can raise concerns regarding highway congestion and parking complications for commuters who instead choose to travel by automobile. FRA’s statistics indicate that the average commuter train trip is 24 miles long. Last, in granting this request to raise the speed at which passenger trains may pass work zones to 40 mph, FRA also avoids giving railroads perverse incentive to defer track or signal maintenance rather than delay or cancel scheduled passenger trains in complying with the Final Rule’s requirements. Of course, such deferred maintenance can potentially lead to track- or signal-caused train derailments and other accidents, thereby endangering railroad operating crews and other railroad employees, rail passengers, and the general public. Finally, the potential cost implications related to passenger-train delay/cancellation issues resulting from this provision of the Final Rule had not previously been raised with FRA until it was posed by APTA’s petition for reconsideration. Thus, in figuring the costs of the Final Rule, FRA did not consider the train-cancellation issue. The train delay implications for commuter operations that LIRR and APTA raise were also not fully considered in the analysis. LIRR was the only entity to put forth an actual cost figure with regard to the 25 mph speed restriction for passenger operations, and FRA does not have information to refute LIRR’s assertions. FRA estimates that this response’s amendment to the Final Rule will create cost savings for the commuter rail industry to at least the extent estimated by LIRR ($1.4 million annually). As discussed further in the RIA below, FRA cannot simply extrapolate the LIRR case to all other commuter railroads. FRA believes that the only other commuter railroad likely to have had impacts similar to those on the LIRR was Metro-North. Extrapolated to the combination of Metro-North and LIRR based on passenger miles, the total cost for the industry would have been $3,152,297 per year. The total cost savings resulting from this amendment PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 1751 to the Final Rule is $33.4 million (PV, 7) and $46.9 million (PV, 3), when discounted over a twenty-year period. FRA is, however, retaining the existing maximum of 25 mph for adjacent-controlled-track movements of freight trains and other freight on-track equipment movements. The AAR/ ASLRRA Joint Petition did not make a request for the Final Rule’s 25 mph speed restriction to be increased with respect to freight operations. As mentioned above, when freight trains pass works zones on an adjacent track, the safety risk of shifted loads is present, as well as the safety risk of swinging doors, loose banding, and dragging equipment, and the hazards associated with debris, dust, stone, and construction/maintenance materials being strewn by freight trains, which tend to be longer and much heavier than passenger trains. The discussion in Section III.D. directly below also contains a more extensive discussion of some of FRA’s rationale for retaining the 25-mph speed limit for freight trains with regard to any potential cost concerns. D. The Requirement That Roadway Workers May Resume Work Only After the Trailing-End of All Trains or Other On-Track Equipment Movement Authorized To Travel Greater Than 25 MPH Has Passed (Paragraph (b) of Section 214.336 of the Final Rule) The Final Rule provided that roadway workers may resume work only after the trailing end of a train or other on-track equipment (authorized to travel past the roadway work gang at a speed greater than 25 mph) has passed the roadway work group (‘‘trailing end’’ provision). The original RSAC consensus language did not specify whether the trailing end or the leading end of the movement had to pass before work could resume, but rather only stated that ‘‘on-ground work and equipment movement on the occupied track may resume only after all such movements on adjacent track have passed each component of the Roadway Work Group(s).’’ FRA specified that the trailing end of the train must have passed before work resumes because we believed that this consensus language meant, and plain language indicated, that the entire train movement must have passed before the resumption of work. See 73 FR 74598. The ‘‘trailing end’’ provision was also adopted, in part, due to the concerns raised by BMWED and BRS on this issue, namely that there are hazards presented to roadway workers by abnormal consist conditions (e.g., ‘‘shifted loads/shifted ladings, loose banding, dragging chains/binders, loose E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES 1752 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations brake piping, loose/swinging boxcar doors, [and] fragmented brake shoes’’) and by ‘‘dust, rust, debris, stone, and track construction/maintenance materials[,]’’ which may become airborne while trains on an adjacent track pass in close proximity to a roadway work group. The AAR/ASLRRA Joint Petition requested that the Final Rule be modified to permit roadway workers to resume work after the leading end of a train has passed. They cited the following points as support for their request: (1) There are no fatalities from shifted loads and no widespread problem of employees injured by shifted loads; (2) there are many railroad employees working near passing trains, not just roadway workers; (3) there is a heightened awareness of the roadway workers after the leading end of a train passes; and (4) prohibiting the resumption of work until the entire train or equipment has passed would adversely affect productivity and require the hiring of additional roadway workers. AAR, in its supplemental comments, estimated that this amendment to the Final Rule would save the railroads approximately $56 million annually (based on an estimate for four Class I railroads alone). APTA’s comment expressed support for the AAR/ASLRRA Joint Petition’s position with regard to the ‘‘trailing end’’ provision. The BMWED/BRS joint comment stated that the AAR/ASLRRA Joint Petition ignored the risks associated with shifted loads/shifted ladings and the hazards associated with materials being kicked up by trains operating at track speed. FRA is denying the request made in the AAR/ASLRRA Joint Petition. FRA notes that when trains pass a roadway work group on an adjacent track that injury risks are present, and that this provision also serves railroad safety where roadway workers are observing the passing of the train for any dragging equipment or any other condition that may compromise the safe movement of a train An additional safety rationale for FRA retaining the requirements of the ‘‘trailing end’’ provision relates to increased derailment risks when trains accelerate. As is generally understood in the railroad industry from voluminous research, there are in-line forces (‘‘buff and draft’’ forces) that push and pull on the individual railroad cars in a train, resulting in increasing or decreasing slack.13 Slack is the free movement in 13 See, e.g., FRA, Report to the Senate Committee on Commerce, Science and Transportation and the House Committee on Transportation and Infrastructure; Safe Placement of Train Cars (June 2005). VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 each railroad car via its coupling equipment and draft gear. Locomotive tractive effort applied to accelerate a train’s speed is one of these forces acting within a train that cause slack action to occur.14 Excessive slack action forces can result in train separation, cause a rail to turn over, or cause a rail car to climb a rail, leading to derailments. Thus, while roadway workers continue to work on the occupied track while a freight train passes at 25 mph or less (40 mph or less for passenger) on an adjacent-controlled track, FRA believes that to permit the train to accelerate as soon as the head end of the train has passed increases the risk of derailment at the work location, even if the risk is normally well managed. Further, FRA believes that AAR has overestimated the costs of complying with the ‘‘trailing end’’ provision by approximately $55,741,196.15 FRA’s analysis has not found cases above a certain train traffic volume where stopping work while trains pass at greater than 25 mph (or, as amended, greater than 40 mph for passenger trains) would be less costly than slowing trains to 25 mph (or 40 mph for passenger) for any likely roadway worker work groups on an adjacent occupied track. Stopping work increases the time of track occupancy required to perform the maintenance. The track occupancy itself by a roadway work group is the most costly factor involved in the analysis. To formulate a revised cost-benefit analysis to account for the modifications that FRA is making to the Final Rule, and also to study thoroughly AAR’s assertions regarding the costs associated with the Final Rule generally and the ‘‘trailing end’’ provision specifically, FRA staff conducted a modeling 14 Id. 15 The costs of the ‘‘trailing end’’ provision were estimated by subtracting the costs that would exist if trains were permitted to accelerate to maximum authorized speed after only the head end of the train had passed the work zone, from the costs of the Final Rule, as analyzed (where the entire length of a train may only travel 25 mph by a work zone such that work on the occupied track could continue). This is equivalent to the costs of passing a length of track equal to the length of the work zone at 25 mph compared to the costs of passing the work zone at maximum authorized track speed, from actual speed limits on track segments. This may actually overstate costs, because in the absence of the Final Rule, not all trains would accelerate to maximum authorized speed (freight train tonnage, crossovers, and other common factors often inhibit a train’s ability to accelerate to maximum authorized speed until a train is well past a work zone). The model assumes that trains decelerate from maximum authorized speed to 25 mph, and after passing the work zone, accelerate back to maximum authorized speed, except where congestion would affect the trains’ initial or final speeds. PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 analysis. FRA calculated the delay associated with implementing the Amended Final Rule, and also the ‘‘trailing end’’ provision specifically, by simulating train movements. Simulated train movements were modeled in accordance with DOT’s train performance simulator (TPS).16 The models that FRA developed were detailed and were correlated with actual rail traffic. FRA developed 27 simulation runs in total (or nine simulations each for low, medium, and heavy traffic volumes) over 270 miles of simulated double-track railroad. FRA believes that the simulated track used in this modeling provided a representative sample of terrain, track geometry, and track speed limits, as the infrastructure data was developed from publicly available track charts and included changes in elevation, direction, and curvature. The results of the modeling showed that congestion-induced costs did not increase when trains slowed to 25 mph to pass a work zone when freight train volumes were at or above threshold. FRA found that rail lines operating above capacity, with more than 20 minutes of delay per train before the trains even reached the roadway work zone, would incur minor additional congestion-related costs as a result of this rulemaking. At most, these additional congestion-related costs would be the result of an additional 1 minute of headway required to traverse the roadway work zone occupying the adjacent track. FRA modeling found that, on average, the level of congestion needed to incur these minor congestionrelated costs occurred when freight train volumes exceeded 34 trains per 24-hour period, or approximately 10 trains per 7hour shift for a roadway work group occupying an adjacent track. FRA believes that its assumption of 10 trains per shift as a threshold for congestion for purposes of calculating the costbenefit analysis is very conservative. The modeling documents and accompanying results are located in the public docket for this rulemaking and are also discussed more extensively in the Special Sensitivity Analysis. In order to evaluate more fully the costs of the Amended Final Rule (along with the ‘‘trailing end’’ provision, specifically), FRA then applied the results of the modeling analysis to the railroad industry as a whole by utilizing the assumptions described more completely in the Special Sensitivity Analysis (assumptions governing train speed, train length, train weight, work 16 Train Performance Simulator Version 5c, revised March 1988 by DOT. E:\FR\FM\10JAR1.SGM 10JAR1 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES stoppage times, etc.). FRA then applied those assumptions to estimated roadway worker production gang efforts for a simulated large Class I railroad. FRA first had to estimate the number of shifts that the Amended Final Rule would affect for each of the different types of roadway worker groups (section gangs, surfacing gangs, and bridge gangs). For this simulated large railroad, FRA estimated three section gangs per roadmaster, 138 roadmasters per railroad, 250 shifts per year per gang, with 20 percent of those shifts on occupied track with on-track equipment subject to the requirements of the Amended Final Rule. FRA estimated that the simulated railroad had 18 divisions, with 3 surfacing gangs per division and each gang working 180 shifts per year, with 100 percent of those shifts on occupied track with ontrack equipment subject to the Amended Final Rule. FRA also estimated 7 bridge gangs per division, 250 shifts per year per gang, with 40 percent of those shifts on occupied track with on-track equipment subject to the Amended Final Rule. FRA then allocated shifts for section gangs, surfacing gangs, and bridge gangs to each subdivision in proportion to the subdivision’s share of total ton-miles. This allocation reflects an assumption that maintenance of rail infrastructure needs to be performed in proportion to wear and tear on rail infrastructure, which occurs as a direct result of train traffic and tonnage. FRA assigned traindelay costs to each gang shift based on the number of trains expected to be affected, multiplied by the cost of affecting a single train. For production gangs and surfacing gangs, FRA assumed that work zones were one mile long, while for bridge and section gangs, operating in smaller groups, the work zones were estimated to be one-quarter mile long. Delay costs 17 were estimated by subtracting the time it would have taken for the train to pass without slowing to pass a roadway work group from track speed (or 40 mph, whichever was lower) from the total time for a freight train to slow from 40 mph (or track speed, if track speed were lower) and pass a work zone, including waiting for the trailing end to pass, and the time to accelerate back up to 40 mph or track speed. 17 Delay costs were estimated at $350 per train hour. A recent study (Schafer, D.H., Effect of Train Length on Railroad Accidents and a Quantitative Analysis of Factors Affecting Broken Rails, M.S. Thesis, University of Illinois at Urbana-Champaign, Urbana, IL (2006)) found train delay cost to be $213 per hour for freight trains; however, FRA has heard that railroads offer higher costs at RSAC meetings, and FRA uses a higher figure for purposes of this analysis in order to be conservative. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 Braking was estimated at 1⁄6 mph per second, with a total braking time from 40 mph to 25 mph of 90 seconds, based on field experience of FRA staff. The calculation for time and distance during acceleration from 25 mph to 40 mph (168.91 seconds over 8,194 feet) was based on an 8,000-ton train powered by motive power totaling 6,640 horsepower.18 For each category of work gang, for each subdivision, FRA estimated the annual cost of the ‘‘trailing end’’ provision by multiplying cost per affected train for that gang type by the affected trains per shift by total shifts per year. FRA totaled those costs for each subdivision and then totaled all subdivision costs. The total cost for the large simulated Class I railroad created for purposes of this modeling analysis was $674,801 for one year. FRA then attempted to estimate similar costs for three other simulated large Class I railroads by allocating affected gang shifts per year to each subdivision based on affected gang shifts per ton-mile per year from the first railroad, and otherwise continuing to use the same assumptions. This led to a much lower estimate of costs per ton-mile at the other railroads. The total annual cost estimate ranged from $90,758 for the next largest Class I by revenue-ton-miles down to $34,114 for the smallest of the four large Class I railroads. These values are lower than for the first railroad as the railroads simulated had less affected trackage where the Amended Final Rule’s requirements would apply and were smaller than the largest Class I first simulated, which mirrors the state of actual existing Class I railroad hierarchy. FRA decided to extrapolate to all Class I freight railroads using the proportionate share of revenue-tonmiles. The total annual cost of slowing trains as they pass work zones was estimated at $2,192,720. This total estimated cost represents the entire cost of slowing trains to pass work zones on the occupied track, to include the estimated $258,803 cost of the ‘‘trailing’’ end provision. In the Special Sensitivity Analysis FRA follows an assumption employed 18 FRA assumed that the fuel costs were 20horsepower per gallon per hour, with fuel cost of $3.50 per gallon. This assumption is based on locomotive performance data (Railroad Facts and Figures, A.A. Krug, available online at https:// www.alkrug.vcn.com/rrfacts/fueluse.htm.) The fuel costs were attributed only to the 6,640 horsepower. In reality this assumption is conservative, because of the reduction in fuel usage during braking. FRA estimates the cost to slow a train to 25 mph, pass a one-mile-long work zone, including trailing end of the train, and then accelerate to 40 mph, would be $39.74. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 1753 in the Final Rule’s RIA that 70 percent of affected railroad operations were in compliance with the requirements of this rulemaking, and would continue to be in compliance even in the absence of the rulemaking. Thus, after accounting for pre-existing compliance the real annual costs will be 30 percent of $2,192,720, or $673,840. After accounting for pre-existing compliance, the real annual cost of complying with the ‘‘trailing end’’ provision will be $77,641, or 30 percent of $258,803. The costs of the ‘‘trailing end’’ provision were estimated by comparing the difference between the costs of the Amended Final Rule and the costs of the Amended Final Rule were trains permitted to accelerate to maximum authorized speed after the head end of the train had passed the work zone. FRA has no data to estimate costs to Class II or Class III railroads; however, FRA believes that the unit costs for those railroads are likely to be no greater than those for the lower-cost Class I railroads (some smaller railroads have no adjacent controlled tracks that are subject to the requirements of the Amended Final Rule). FRA has chosen the most conservative assumption, extrapolating the costs on a revenue-tonmile basis from the first Class I railroad analyzed. FRA believes this course of action more than makes up for the absence of any data from Class II or Class III railroads. Had FRA used the methodology that derived lower unit costs, the estimated total cost of the Amended Final Rule would have been 67-percent lower than the estimate presented in the Special Sensitivity Analysis. In sum, FRA believes that the costs of the ‘‘trailing end’’ provision as asserted by AAR were overestimated. FRA’s analysis shows that by far the largest cost involved in the analysis is the occupancy of the track itself by a roadway work group. Slowing trains to pass a roadway work group is a less costly alternative than a roadway work group ceasing work to permit a train to pass at a higher speed, as that extends the length of time the track is occupied by the roadway work group and correspondingly slows all subsequent train traffic. FRA believes that the results of the modeling and resultant costs as extrapolated on a revenue-ton mile basis show that the Amended Final Rule, including its ‘‘trailing end’’ provision, is cost-beneficial. E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES 1754 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations E. Elimination of Requirement That a Non-Controlled Track Be Treated as an Adjacent Controlled Track (Section 214.336(a)(2) of the Final Rule) In the Final Rule FRA adopted a requirement that a non-controlled track whose track center is spaced 19 feet or less from the occupied track be treated as an adjacent controlled track if the occupied track has an adjacent controlled track on the other side. This requirement was adopted due to concern that confusion could arise by requiring that roadway work groups make a determination regarding whether adjacent-track on-track safety was necessary on a closely-spaced adjacent track based only on whether that adjacent track was controlled or not. FRA had concern that such confusion could result in incidents involving train movements on adjacent non-controlled tracks. FRA also noted this approach was consistent with its rationale for adopting the language in § 214.336(e)(1)(ii), which imposes conditions on the exception for work performed on a side with one or more adjacent tracks only if the danger posed by the closest adjacent track (controlled or non-controlled) on that side had been essentially eliminated. The AAR/ASLRRA Joint Petition argued that no accident/incident data supports this provision and that the provision itself could cause confusion as to why the roadway workers have to treat the non-controlled track as an adjacent controlled track. APTA’s Petition expressed the separate concern that the provision would disrupt scheduled passenger train operations and, thus, also affect the cost of scheduled train operations in a manner that was not contemplated by FRA in the Final Rule. The BMWED/BRS comment stated that they shared FRA’s concern regarding the risk of additional confusion and also believed that the provision added a level of clarity and uniformity to the Final Rule, applied only in very limited circumstances, and ensured that roadway workers would not clear into or foul the adjacent noncontrolled track without protection. FRA is deleting this provision from the Final Rule, in part because there is no accident data to support it, which was the basis for the original RSAC decision not to adopt this provision in its recommendation to FRA. FRA has also made this decision because the ontrack safety job briefing required by the Final Rule is intended to make clear to roadway workers that no on-track safety is being provided on that track, as the job briefing requires a discussion of all VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 adjacent tracks regardless of whether they are controlled or non-controlled. Further, on a non-controlled track, roadway work groups have the authority to establish working limits by making a track inaccessible on their own, and are not reliant on a control operator or dispatcher to do so as they are with controlled tracks. And finally, given the limited circumstances under which this provision would apply, there is little risk to the roadway workers, especially since Note 1 of Table 1 of § 214.336 specifically states that a ‘‘predetermined place of safety’’ ‘‘may not be on a track, unless the track has working limits on it and no movements permitted within such working limits by the [roadway worker in charge].’’ This same requirement was also expressly proposed in FRA’s RWP Miscellaneous Revisions NPRM, which was published last year. 77 FR 50324. For these reasons, FRA has determined that this provision is unnecessary. This decision also makes moot APTA’s concern stated in its Petition that this provision would have adversely affected passenger train schedules. briefing include discussion of the nature of the work to determine if on-track safety is necessary where multiple hirails are engaged in a common task) would apply to the rail-bound vehicles. FRA is granting the request to create an additional exception for rail-bound vehicles being used for inspection or minor correction purposes by broadening the ‘‘hi-rail vehicle’’ exception to apply to on-track, selfpropelled equipment (other than an automated inspection car or catenary maintenance tower vehicle) being used for inspection or minor correction (including welding). FRA already permits visual track inspections to be conducted with such equipment under 49 CFR 213.233(b), and there should be no additional safety risks when the equipment is being used for inspection or minor correction purposes, especially if the same limitations for hi-rails are applied to this exception, as suggested by the BMWED/BRS joint comment. FRA concurs with the labor organizations’ suggestion and has adopted the same limitations as are applied to hi-rails. F. Additional Exception for ‘‘Rail-Bound Vehicles’’ Used for Conducting Inspections, Minor Corrections, or Welding (Section 214.336(e)(3)(i) of the Final Rule) The Final Rule, at § 214.336(e)(3)(i), exempted inspections and minor correction work involving a hi-rail vehicle from the adjacent-track on-track safety requirements, but did not similarly expressly exempt rail-bound vehicles (not equipped with highway wheels) conducting the same inspection or minor correction work. The AAR/ ASLRRA Joint Petition, along with Metro-North in its comment, requested that there be an exception for rail-bound vehicles where manual inspections are being conducted. They requested such because they involve the same activities as those performed during an inspection conducted by a hi-rail vehicle, but differentiate between the two based only on whether the vehicle from which the inspections are being conducted has highway wheels in addition to rail wheels. The Joint Petition also argued that the duties clearly would not produce dust or noise. The BMWED/BRS joint comment did not oppose extending the exception for hi-rail vehicles to rail-bound equipment being used exclusively for inspection or minor correction purposes, provided that all of the limitations that apply to hi-rail vehicles in § 214.336(e)(3)(i) (i.e., limiting the exception to those hi-rails not coupled to one or more railroad cars and requiring that the on-track safety job G. Expansion of an Exception To Include Roadway Workers Performing Maintenance or Repairs Who Are Positioned Within the Perimeter of a Machine or Coupled Equipment on the Occupied Track (Section 214.336(e)(2) of the Final Rule) PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 The Final Rule contained an exception to the requirement that ontrack safety be established on an adjacent controlled track when maintenance or repairs are being performed while the worker is positioned on a side of the occupied track as described in paragraph (e)(1)(i), (ii), or (iii) of § 214.336 19 alongside a roadway maintenance machine or coupled equipment that would prevent a roadway worker from fouling the adjacent track on the other side of the equipment. FRA adopted that provision in response to BMWED’s and BRS’ concern that work should not be permitted in the foul of the occupied track (even if mostly positioned on the side opposite from the train movement) unless the machine acted as a physical barrier between the roadway worker and the adjacent controlled track on which the movement was occurring. FRA 19 (I.e., on the side of the occupied track that has no adjacent track; on the side with one or more adjacent tracks, the closest of which has working limits on it and no movements permitted within such working limited by the roadway worker in charge; or on the side with one or more adjacent tracks, provided that it has an inter-track barrier between the occupied track and the closest adjacent track on that side.) E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations believed that this exception would permit the changing out of a grinding stone on the side of the equipment opposite of that where an adjacent track movement was occurring and, in some cases, depending on the location of the fuel tank, the fueling of a machine. Under the Final Rule such activities would not require that adjacentcontrolled- track protections be established. The AAR/ASLRRA Joint Petition argued that the exception as put forth in the Final Rule was too narrow and that it should also apply to a worker positioned within the perimeter of the equipment on the occupied track, without regard to whether the maintenance or repairs are performed while positioned on a side of the occupied track as described in paragraph (e)(1)(i), (ii), or (iii) of § 214.336. AAR/ASLRRA argued that a repairman who is working beneath a machine should not be forced to extract him or herself each time a train passed on the adjacent track in order to go to the predetermined place of safety. They argue that this requirement could increase the risk of injury to the worker and that a roadway worker working performing repairs under the machine is not at risk of being struck by a train on the adjacent track. The BMWED/BRS joint comment stated that the term ‘‘perimeter’’ is too broad and would include those sides of the occupied track that do not provide a barrier as contemplated by this section, and that such an amendment was undesirable from a safety standpoint. After considering the above arguments, FRA is expanding the exception to include a roadway worker performing maintenance while positioned ‘‘within the perimeter of the machine or equipment’’ (meaning, while either on or under the body of the machine or coupled equipment). To ensure that the term is not too broad in its application, the amended rule text explains that any part of the roadway worker’s person not wholly positioned within the perimeter must not break the plane of a rail of the occupied track, unless the part of the roadway worker’s person is towards one of the abovereferenced sides of the occupied track. A boom or other equipment extending beyond the body of the machine toward the adjacent controlled track is not considered to be ‘‘within the perimeter of the machine or coupled equipment.’’ FRA decided to expand this exception for the following three reasons: (1) There have been no adjacent-trackrelated fatalities involving a roadway worker positioned within the perimeter of the machine; (2) there is no danger of VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 a roadway worker’s fouling an adjacent controlled track while he or she is positioned between the rails of the occupied track where the equipment would effectively prevent the worker from fouling the adjacent controlled track; and (3) there would be a risk of injury to the worker from having to extract himself or herself from underneath or on top of a machine. FRA had not considered the latter risk when formulating the Final Rule. H. Application of the Final Rule To Repair or Maintenance of Roadway Maintenance Machines The AAR/ASLRRA Joint Petition and AAR’s and Metro-North’s comments all questioned whether the Final Rule addressed mechanics performing maintenance and repair work on roadway maintenance machines. Existing § 214.7 defines the term ‘‘roadway worker.’’ That term, since its inception with the promulgation of the original RWP regulation in 1996, has always included employees of a railroad or a contractor to a railroad ‘‘whose duties include inspection, construction, maintenance or repair of . . . roadway maintenance machinery on or near track or with the potential of fouling a track . . . .’’ Clearly, such maintenance or repair is, and always has been, a roadway worker duty covered by the RWP regulation and the on-track safety requirements of part 214. This adjacent track provision, from its RSAC consensus conception, would have applied to roadway workers on the ground engaged in a common task with on-track, self-propelled equipment or coupled equipment on an occupied track, and the term would have included such employees within such groups performing maintenance or repairs on machinery who foul, or have the potential to foul, track. Thus, the activities of those roadway workers were clearly intended to be subject to the requirements of the RSAC consensus agreement if adopted. However, even in light of that point, much of the work performed on roadway maintenance machines may be accomplished without the requirements of the Amended Final Rule applying to such work. By utilizing the exceptions in § 214.336(e), particularly the expansion of the exception pertaining to repairs performed alongside the machine or equipment to include work performed within the perimeter of the machine or equipment (on or under such machine or equipment), most maintenance or repair work may be performed without triggering the requirements for adjacent-controlledtrack protections. The Amended Final PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 1755 Rule requires adjacent-controlled-track protection when maintenance work is being performed on the side of the equipment nearest that adjacent track or if any part of a roadway worker’s body not wholly positioned within the perimeter of the machine breaks the plane of the rail of the occupied track toward the adjacent controlled track, unless the part of the roadway worker’s person is towards one of the abovereferenced sides of the occupied track. Further, a lone worker mechanic who is not part of a roadway work group, and therefore not subject to the requirements of § 214.336, may also be utilized to perform work on roadway maintenance machines. During the limited circumstances that the maintenance or repair work on a roadway maintenance machine falls within the scope of § 214.336, a mechanic’s helper is permitted to serve as a watchman/ lookout, or obviously another member of the roadway work gang who is not presently performing other duties may serve as a watchman/lookout. (Note that if machines are stopped in order to be repaired, there may be several members of the roadway work gang available to act as watchmen/lookouts.) I. Clarification Regarding Release of Working Limits The AAR/ASLRRA Joint Petition stated that the Final Rule was ambiguous with regard to whether a roadway worker in charge is permitted to release working limits on an adjacent controlled track after all members of the roadway work group have acknowledged that they are in the clear. The Joint Petition then also suggested that FRA adopt rule text expressly stating that working limits may be released on an adjacent controlled track to allow for train or on-track equipment movements. FRA believes that such additional rule text is unnecessary. The Final Rule permits working limits to be released on an adjacent controlled track in accordance with existing § 214.319(c). That provision permits working limits to be released for the operation of trains once all roadway workers have occupied a place of safety or have been afforded on-track safety through train approach warning; the provision applies with regard to releasing working limits on an adjacent controlled track in § 214.336. For example, under § 214.336(b) as promulgated in the Final Rule and the Amended Final Rule, if a roadway worker in charge wishes to release working limits on an adjacent controlled track in order to permit a train movement on that adjacent controlled track, he or she may do so E:\FR\FM\10JAR1.SGM 10JAR1 1756 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations after notifying all roadway workers in the group and after all workers having occupied a place of safety, or, after notifying the roadway work gang that working limits are being released, that train approach warning will now be the method of on-track safety on the adjacent controlled track. A train may then travel past the roadway work group on the adjacent controlled track, with the train’s authorized speed dictating whether work is permitted to continue within the rails of the occupied track (maximum authorized speed of 25 mph or less for trains or on-track equipment, or 40 mph or less for passenger trains), or whether the roadway workers must cease work and occupy a place of safety after having received train approach warning (maximum authorized speed of greater than 25 mph for trains or other on-track equipment or greater than 40 mph for passenger trains). IV. Section-By-Section Analysis mstockstill on DSK4VPTVN1PROD with RULES Section 214.336 On-Track Safety Procedures for Certain Roadway Work Groups and Adjacent Tracks For the reasons described in Section III above, FRA is making several changes to § 214.336 of the Final Rule. First, FRA is amending the heading of § 214.336(a)(2) to address only a single circumstance arising in territories with at least three tracks to account for situations if the occupied track is between two adjacent controlled tracks. This change is being made because, as discussed above, FRA is removing the requirement that a non-controlled track spaced 19 feet or less from an occupied track be treated as an adjacent controlled track. Accordingly, FRA is also deleting § 214.336(a)(2)(ii), which contained the requirement to treat a non-controlled track as a controlled track in certain circumstances. FRA is also amending § 214.336(a)(2) to reference that FRA has raised the maximum authorized speed at which passenger trains or other passenger ontrack equipment may pass a roadway work group while roadway work continues within the gage of the occupied track from 25 mph to 40 mph. Third, FRA is deleting the second sentence of the definition of ‘‘adjacent controlled track’’ in § 214.336(a)(3). This amendment is also to implement FRA’s decision to delete the Final Rule’s requirement in § 214.336(a)(2) that if an occupied track has an adjacent controlled track on one side and a noncontrolled track spaced 19 feet or less from an occupied track on the other side that both tracks must be treated as adjacent controlled tracks. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 Fourth, FRA is amending the first sentence of the definition of ‘‘minor correction’’ in § 214.336(a)(3) by adding the word ‘‘welding’’ and replacing the words ‘‘handheld pneumatic tools only’’ with ‘‘handheld, hand-supported, or hand-guided power tools[,]’’ because FRA is including both welding and additional types of power tools within this definition. FRA is also amending the second sentence of that definition by deleting the word ‘‘welding[,]’’ because the second sentence lists exclusions from the term ‘‘minor correction’’ and FRA has decided to include welding explicitly as an example of ‘‘minor correction.’’ Fifth, FRA is adding the words ‘‘or at a speed greater than 40 mph for a passenger train or other passenger ontrack equipment movement’’ to paragraph (b). As explained above, this amendment is to reflect that FRA has decided to raise to 40 mph the maximum speed at which passenger trains may pass a roadway work group without the roadway work group’s having to cease work and occupy a place of safety. FRA has also amended the heading of paragraph (b) to implement this decision to raise the maximum allowable speed for passenger trains to 40 mph for purposes of the requirements of this paragraph. Sixth, FRA is adding the words ‘‘or at a speed of 40 mph or less for a passenger train or other passenger ontrack equipment movement’’ to paragraph (c). As explained above, this amendment is to reflect that FRA has decided to raise to 40 mph the maximum speed at which passenger trains may pass a roadway work group without the roadway work group’s having to cease work and occupy a place of safety, but rather while the group continues on-ground work and equipment movement within the gage of the occupied track. To reflect this change to the text of paragraph (c), FRA has also amended the heading of the paragraph. Next, FRA is amending the heading of § 214.336(e)(2) to implement the decision to include maintenance or repairs performed within the perimeter of a roadway maintenance machine or coupled equipment on the occupied track within an exception to the adjacent-controlled-track on-track safety requirements. FRA has redesignated what was existing paragraph (e)(2) as (e)(2)(i). This redesignation is to carry out FRA’s decision discussed above to add a new provision (§ 214.336(e)(2)(ii)) to this paragraph regarding the additional exception for maintenance or repair performed within the perimeter of a roadway maintenance machine or PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 coupled equipment. This new provision states that a roadway worker performing maintenance or repairs under § 214.336(e)(2)(ii) is not considered to be within the perimeter of the roadway maintenance machine or coupled equipment if any part of his or her person breaks the plane of the rail of the occupied track, except toward one of the sides referenced in § 214.336(e)(1)(i)– (iii). Booms or other equipment extending beyond the body of a roadway maintenance machine or coupled equipment toward an adjacent controlled track are not considered to be with the perimeter of the machine or coupled equipment. Last, FRA is amending the first and second sentences of § 214.336(e)(3)(i) to reference rail-bound vehicles. This change is to follow through on FRA’s decision to add rail-bound vehicles to the ‘‘hi-rail’’ exception of this section. Table 1 in Section 214.336 of the Final Rule FRA is amending the multiple references to the 25-mph maximum authorized speed for adjacentcontrolled-track movements above which roadway workers on the occupied track must cease work and occupy a place of safety to add references to the higher maximum authorized speed for passenger trains of 40 mph. These changes are to reflect FRA’s decision to raise the maximum authorized speed at which passenger trains may pass the roadway work on an adjacent controlled track to 40 mph such that the roadway work group may continue to work on the occupied track, as is discussed above. FRA has also amended the second sentence of footnote 2 of the table to reference § 214.336(a)(2) rather than § 214.336(a)(2)(i). Due to the decision to delete § 214.336(a)(2)(ii) from the Final Rule, the former § 214.336(a)(2)(i) now forms paragraph (a)(2) in its entirety. FRA has also amended footnote 3 of the table in order to reflect that another exception has been included in the Amended Final Rule for maintenance or repair work performed within the perimeter of a roadway maintenance machine or coupled equipment on the occupied track. Figure 1 in Section 214.336 FRA is amending Examples 1, 2, 3, 4, and 6 of Figure 1 to reflect that the Amended Final Rule raises the maximum authorized speed at which passenger trains and other passenger ontrack equipment may are authorized to pass a roadway work group on an adjacent controlled track to 40 mph such that the roadway work group may E:\FR\FM\10JAR1.SGM 10JAR1 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations continue to work on the occupied track, as is discussed in detail above. Appendix A to Part 214 FRA is revising appendix A to assure that the existing entries for § 214.315(b)–(e) remain in the table, as they would have been inadvertently deleted because of incorrect Federal Register publication signals if the Final Rule had gone into effect. FRA is also deleting the reference in appendix A to the guideline civil penalty for § 214.336(a)(2)(ii), and is redesignating the reference to § 214.336(a)(2)(i) in the civil penalty to § 214.336(a)(2). This change is necessary because, as discussed above, FRA is deleting § 214.336(a)(2)(ii) from the regulatory text after deciding to eliminate the requirement that a noncontrolled track spaced 19 feet or less from an occupied track be treated as an adjacent controlled track. FRA is also amending the guideline civil penalty entries for § 214.336(a) and (c) to implement FRA’s decision to raise to 40 mph the speed at which a distinction is made for passenger train movements and other passenger on-track equipment movements on adjacent controlled tracks. FRA is also amending a reference in footnote 1 to the appendix A, Schedule of Civil Penalties, to account for the inflation adjustment to the aggravated maximum civil penalty for a violation of an FRA safety regulation or order, or of a Federal railroad safety law. In a final rule published April 24, 2012 (77 FR 24415), FRA raised upward the maximum aggravated civil penalty from $100,000 to $105,000. FRA is amending footnote 1 to reflect that final rule’s adjustment, which would be reversed if the Final Rule went into effect without this additional amendment. FRA is also amending the second sentence of footnote 1 to refer to the particular regulatory ‘‘provision(s)’’ rather than the ‘‘section(s)’’. V. Regulatory Impact and Notices A. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures The Final Rule Amendments have been evaluated in accordance with Executive Orders 12866 and 13563, and in accordance with existing DOT policies and procedures. See 44 FR 11034 (Feb. 26, 1979); 76 FR 3821 (Jan. 21, 2011); DOT Order 2100.5 (May 22, 1980). This regulatory action has been determined to be significant under Executive Orders 12866 and DOT policies and procedures. What follows is FRA’s Regulatory Impact Analysis (RIA) addressing the economic impacts of the Amendments. The analysis presented here includes quantitative measurements and qualitative discussions of reductions in implementation costs and safety impacts resulting from amendments to the Final Rule made by FRA in response to the Petitions. The modifications being made in the Amendments all reduce burdens, or potential burdens, of the Final Rule. Thus, the benefits result from reduced regulatory costs. In the same way, the costs associated with each amendment, if any, would result from foregone risk reduction. FRA is granting requests contained in the petitions for reconsideration by: • Expanding the definition of ‘‘minor correction’’ to include welding and certain uses of any handheld power tools; • Increasing the maximum authorized speed at which passenger trains may move on an adjacent controlled track to 40 mph while roadway workers continue their on-ground work on the occupied track; • Deleting the requirement that a noncontrolled track whose track center is spaced 19 feet or less from the occupied track be treated as an adjacent controlled track; • Exempting rail-bound vehicles (ontrack vehicles not equipped with highway wheels) used for conducting inspections or performing minor correction work (including welding), mstockstill on DSK4VPTVN1PROD with RULES Amendments to the final rule Potential cost implications Expanding the definition of ‘‘minor correction’’ to include welding and certain uses of any handheld power tools. Negligible. Very small increase in risk. No quantifiable increases in casualties. 20 See ‘‘Guidance on Treatment of the Economic Value of a Statistical Life in U.S. Department of VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 while applying the same limitations that apply to hi-rail vehicles; • Expanding the exception pertaining to repairs performed alongside the roadway work machine or equipment to include work within the perimeter of the machine or equipment. In analyzing the modifications listed above that are being made to the Final Rule, FRA has applied updated DOT guidance on the economic value of a statistical life (VSL) that was issued in March 2013.20 This updated guidance increased the VSL from $6.2 million to $9.1 million, and revised the guidance used to compute benefits based on injury and fatality avoidance in each year of the analysis based on forecasts from the Congressional Budget Office of a 1.07 percent annual growth rate in median real wages over the next 30 years (2013–2043). FRA also adjusted wage-based labor costs in each year of the analysis accordingly. Real wages represent the purchasing power of nominal wages. Non-wage inputs are not impacted. All monetary references are in 2012 dollars, unless noted otherwise. The Final Rule’s prior analyses had used 2009 dollars. However, in order to incorporate this latest guidance, FRA has evaluated the Amendments in 2012 constant dollars. This analysis, with different wage levels and VSL depending on year, uses 2014 as the first year that the requirements of the Amendments will be effective. The table below summarizes the potential cost savings that will result from FRA’s above-listed Amendments in response to the Petitions, as well as potential cost implications resulting from forgone risk reduction. The costs and benefits have been evaluated over a 20-year period using discount rates of 7 percent and 3 percent. For the 20-year period analyzed, the estimated costs that will be imposed on the industry are negligible. For the same 20-year period, the estimated quantified benefits total $643 million, with a PV (7 percent) of approximately $341.6 million and a PV (3 percent) of approximately $478.4 million: Benefits: Estimated cost savings (PV, 7%) $158.9 Million 21 ................ Transportation Analyses’’, available online at 1757 Benefits: Estimated cost savings (PV, 3%) $223.2 Million. https://www.dot.gov/regulations/economic-valuesused-in-analysis. E:\FR\FM\10JAR1.SGM 10JAR1 1758 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations Benefits: Estimated cost savings (PV, 7%) Benefits: Estimated cost savings (PV, 3%) $33.4 Million 22 .................. This estimated benefit only considers cost savings for LIRR and MetroNorth. $8,000 23 ............................ $46.9 Million. This estimated benefit only considers cost savings for LIRR and MetroNorth. $11,200. N/A ..................................... N/A ..................................... N/A. Negligible. Minor reduction in the safety benefit of workers extricating themselves from under machinery so as to be safe in the event a collision with the machinery. $149.2 Million 24 ................ Non-quantified benefits include lowered injury risks due to less instances of workers having to extract themselves from a machine each time a train passes. $208.3 Million. Non-quantified benefits include lowered injury risks due to less instances of workers having to extract themselves from a machine each time a train passes. ............................................ $341.6 Million .................... $478.4 Million. Amendments to the final rule Potential cost implications Increasing the maximum authorized speed at which passenger trains may move on an adjacent controlled track to 40 mph while roadway workers continue their on-ground work on the occupied track. Negligible ........................... Deleting the requirement that a non-controlled track whose track center is spaced 19 feet or less from the occupied track be treated as an adjacent controlled track. Exempting rail-bound vehicles (on-track vehicles not equipped with highway wheels) used for conducting inspections, performing minor correction work (including welding), while applying the same limitations that apply to hi-rail vehicles. Expanding the exception pertaining to repairs performed alongside the roadway work machine or equipment to include work within the perimeter of the machine or equipment. None: FRA has no record of past casualties covered by this provision. Total .......................................................................... All values are discounted (PV, 7 and 3%) for a 20-year period. Petition Requests Granted and Associated Cost Savings Estimates 1. Definition of ‘‘Minor Correction’’ mstockstill on DSK4VPTVN1PROD with RULES FRA’s response expands the definition of ‘‘minor correction’’ work to avoid the Final Rule’s requirements applying to roadway work gangs using handheld power tools or engaged in welding activities. The Railroad Safety Advisory Committee’s (RSAC) Roadway Worker Protection (RWP) Working Group’s consensus agreement did not include a definition of ‘‘minor correction’’, as the consensus language excluded hi-rail vehicle activities from the adjacent track on-track safety requirements (except if coupled to railroad cars). FRA added the ‘‘minor correction’’ definition to the Final Rule to expand the consensus language and include specific hi-rail activities within the final rule’s on-track safety requirements. FRA’s response expands the definition of ‘‘minor correction’’ because in the Final Rule: (a) FRA inadvertently excluded certain handheld power tools from the minor correction work exception; and (b) FRA did not realize that the inclusion of welding activities could impose such substantial potential cost burdens. Thus, 21 From FRA staff estimate. from LIRR estimate in proportion to passenger miles. 23 From FRA staff estimate. 24 The cost savings estimate is based on an annual $14 million in costs from AAR’s comment on the Petitions. FRA believes that the Amendments will avoid these costs that AAR’s comment raised. 22 Extrapolated VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 the Final Rule did not specifically assess costs for either of these items. However, in its comment on the Petitions, AAR’s cost estimate for the additional watchmen/lookouts, new employees, and trucks (for three-person welding crews) related to these two items were $144 million in the first year and $127 million per year in subsequent years. APTA also estimated that the Final Rule generally would cost commuter railroads $22 million per year. AAR stated that it arrived at its estimated costs by drawing on track maintenance costs data from the four largest Class I freight railroads and from a large commuter railroad, but did not break those costs down by individual railroad. Instead, AAR provided overall cost estimates for each item that FRA’s Regulatory Impact Analysis (RIA) analyzing the Final Rule addressed, while adding in additional cost estimates that it stated FRA did not consider (costs related to the hiring and training of additional roadway workers, new trucks, and train delays). FRA’s modification of the definition will remove these potential costs estimated by AAR that were created by the Final Rule. FRA inadvertently described the type of hand tool use that would have been exempted from the Final Rule’s requirement, which would have had the unintended effect of narrowing the type of work that was excluded from the Final Rule’s requirements. FRA’s response amending the description of hand tools will clarify the agency’s PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 intent and resolve that issue. With regard to the decision to grant AAR’s request to also exclude hi-rail related welding activities from the Final Rule’s requirements, FRA weighed several factors in making its decision. As stated above, the RSAC consensus language did not include hi-rail related welding activities. Other factors include that there have been no fatalities related to activities that would have been implicated by the Final Rule’s welding requirement and also because FRA did not realize certain of the additional welding-related costs that would have to be incurred by railroads (the purchase of new hi-rail trucks, the number of additional situations in which the final rule could apply, etc.). However, FRA also believes that APTA’s and AAR’s cost estimates with regard to welding were overstated. No watchmen/lookouts would have been required for any welding activities involving the occupancy of a controlled track in single-track territory. Further, the Final Rule would not have applied to welding operations where no on-track equipment occupied a controlled track, or where no welding operations were being performed in connection with another roadway work group’s work. Further, any welding operations taking place where the roadway work group would have the potential to foul an adjacent track for any reason are already required to establish on-track safety on that adjacent track under the existing RWP regulations, even in the absence of the Final Rule’s requirements. FRA E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations believes that many existing railroad hirail trucks could have accommodated (or could have been modified to accommodate) an additional roadway worker for purposes of traveling to a welding worksite. Finally, a significant percentage of welding worksites are accessible via railroad right-of-way, which negates the need for newly purchased or modified hi-rail trucks to accommodate an additional roadway worker. FRA believes that these factors could have eliminated a high percentage of the welding costs claimed by AAR prior to FRA granting this request. FRA does acknowledge, however, that in order to be prepared for situations in which the Final Rule’s requirements would have applied to welding operations, that significant costs likely would have been incurred by the industry to purchase larger new hi-rail trucks to accommodate a third roadway worker in certain situations. The foregone benefits that would have resulted from the previous, narrower, definition of minor corrective work appear to be small. FRA is not aware of any accidental injuries in the ten year statistical period reviewed for the Final Rule in which the expanded definition of minor corrective work would have applied to the work performed, but the previous definition would not have applied to the work. This does not mean that there is no risk from such work. It only means that if reporting is accurate and past experience is a good basis from which to estimate risk, then the risk is small, with an expected value less than the cost of one injury every ten years. It appears to FRA that expanding the definition of minor corrective work will produce benefits by reducing costs, although it is unlikely that the benefits will be within an order of magnitude of the cost reductions that AAR claims would occur, $93 million in the first year and $82 million in subsequent years. FRA has roughly estimated those costs to be between $15–30 million per year. For purposes of calculating the total cost savings for this amendment, FRA used the low end of the range, i.e., $15 million per year. The total cost savings over 20 years is $300 million. The discounted value of this cost is $158.9 million (PV, 7) and $223.2 million (PV, 3). On the other hand, it does not appear to FRA, based on reported injuries and fatalities, that the benefits foregone, which are the costs of expanding the definition of minor corrective work, would be within an order of magnitude of the benefits of expanding the definition of minor corrective work. Overall, FRA concludes that the cost burden reduction benefit would exceed VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 the very small increase in risk resulting from this particular amendment. 2. Speed Limit Increase to 40 MPH for Passenger Trains The Final Rule Amendments increase the maximum authorized speed at which passenger trains may move on an adjacent track to 40 mph while roadway workers continue their on-ground work on the occupied adjacent track. This change is being made due to unanticipated costs that the Final Rule’s 25-mph limitation could have potentially imposed on the commuter railroads. Further, FRA’s information indicates that 40 mph is already largely the speed at which commuter trains pass roadway work zones on adjacent controlled tracks, and FRA has no data or analyses to show that this current 40 mph speed is unsafe. APTA’s petition for reconsideration requested this speed increase to 40 mph. A review of the public record for the RWP Working Group meeting where the 25-mph speed was agreed upon indicates that that no APTA representative was present at that meeting, though APTA apparently did have a representative present at the full RSAC meeting where the consensus language was approved after the conclusion of the RWP Working Group’s work. However, APTA’s comment on the NPRM, its Petition, and its comment on the Petitions all requested that FRA increase the speed to 40 mph for passenger trains. FRA notes that APTA did not provide data or economic analysis regarding those requests to raise the speed limit for passenger trains. APTA member LIRR also stated in its comment on the Petitions that the imposition of a 25-mph work zone speed limit (versus a 40-mph work zone speed limit that would permit work on an adjacent track to continue) would cost them $1.4 million dollars per year, and would lead to train delays and cancellations potentially impacting thousands of passengers per day when roadway work projects were being performed. APTA’s comment on the Petitions raised the general concern of costs related to disruption of scheduled passenger service and loss of passenger train business, specifically citing the example of a dip in ridership during a South Florida Regional Transportation Authority (TriRail) construction project. APTA’s comment also speculated regarding the final rule’s impacts on large passenger operations, such as at New York City’s Penn Station. From a safety perspective in choosing to grant this request, passenger trains are shorter than freight trains and also do not present the dangers of shifted PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 1759 loads and swinging doors that freight trains do. In addition, the superior braking capabilities and shorter stopping distances of passenger equipment could reduce risk while approaching and passing adjacent track roadway work zones. Next, shelf couplers on passenger equipment are designed to keep equipment upright and in-line in the event of derailment. Passenger equipment is also typically narrower than comparable freight train equipment, meaning it is physically farther from roadway workers who continue work in the gage of the occupied adjacent track while a passenger train passes. Further, unlike much longer freight trains, passenger trains are only typically 6 to 8 cars in length, and whether traveling at 40 mph or 25 mph, pass within a matter of seconds. Because there is less danger of swinging doors and shifted loads, risk exposure is much more minimal than when compared to a much longer passing freight train. As also stated above, FRA does not have data or analyses to show that the 40-mph speed at which commuter trains largely pass work zones on an adjacent track presently is unsafe. Next, if the assertions in LIRR’s comment are correct and in some instances on LIRR several thousand passengers could be affected daily by the Final Rule’s 25-mph limitation, FRA believes unintended passenger safety issues could occur if the Final Rule’s speed restriction is not increased for passenger trains. Crowding on both passenger platforms and on passenger trains that results from commuter train cancellations and delays present platform fall and other obvious risks to passenger safety. These cancellations and delays could occur because commuter train ‘‘meet’’ times, particularly when tracks merge from different subdivisions of a railroad, can be critical in passenger operations when a missed meet for one train compounds and affects later-scheduled trains. Further, a 25-mph limitation for commuter trains could have the unintended impact of driving passengers to other modes of transportation, namely automobiles. Automobile travel is statistically less safe than passenger train travel and is also less fuel efficient, which is undesirable from both a safety and emissions standpoint. Last, in granting this request to raise the speed at which passenger trains may pass work zones to 40 mph, FRA avoids giving railroads perverse incentives to defer track or signal maintenance rather than delay or cancel scheduled passenger trains in E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES 1760 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations complying with the Amended Final Rule’s requirements. Of course, such deferred maintenance can potentially lead to track- or signal-caused train derailments and other accidents, thereby endangering railroad operating crews and other railroad employees, rail passengers, and the general public. The potential cost implications related to passenger train delay/ cancellation issues resulting from this provision of the Final Rule had not previously been raised with FRA until APTA’s Petition discussed such. Thus, in estimating the costs of the Final Rule, FRA did not consider the train cancellation issue. The train delay implications for commuter operations that LIRR and APTA raise were also not fully considered in the analysis. LIRR was the only entity to put forth an actual cost figure with regard to the 25-mph speed restriction for passenger operations, and FRA does not have information to verify or refute LIRR’s assertions. LIRR stated that the imposition of a 25-mph work zone speed limit (versus a 40-mph work zone speed limit that would permit work on an adjacent track to continue) would cost them $1.4 million dollars per year. FRA cannot simply extrapolate the LIRR case to all other commuter railroads. The LIRR runs a busy schedule, even on weekends, and unlike many other railroads the LIRR has one main line carrying the bulk of its traffic, which then branches out. Most other large commuter operations branch out relatively close to their downtown terminals. Further, most commuter operations have few, if any, trains operating between rush hours. FRA believes that the only other commuter railroad likely to have had impacts similar to those on the LIRR was MetroNorth. Extrapolated to the combination of Metro-North and LIRR based on passenger miles, as reported by APTA in its 2013 yearbook (which contains 2011 data) the total cost for the industry would have been $3,152,297 per year.25 The total cost savings resulting from this amendment to the Final Rule over 20 years is $63 million. The discounted value of this cost is $33.4 million (PV, 7) and $46.9 million (PV, 3). There would be additional costs avoided by the displaced riders who would have had to find alternate transportation or forego the benefits of 25 According to APTA’s 2013 fact book, in 2011 LIRR had 2,087,848,900 passenger miles, and Metro-North had 2,613,236,500 passenger miles, for a total of 4,701,085,400 passenger miles. Dividing 4,701,085,400 by 2,087,848,900 yields 2.251640624. Multiplying $1.4 million by 2.251640624 yields $3,152,297. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 their intended trips. As mentioned above, alternate transportation may expose passengers to additional safety costs, as well. FRA analyzed whether there might be foregone safety benefits as a result of the amendment. There was one relevant fatality analyzed for the Final Rule on a commuter railroad. The train in that case was traveling at 45 mph, in excess of 40 mph, but FRA does not believe that the reduction in speed to 25 mph by itself would have been sufficient to prevent the fatality. Had the Final Rule or the Amended Final Rule been in effect at the time of that accident, the roadway worker would have benefited from, at a minimum, train approach warning being the method of on-track safety on the adjacent controlled track. The speed of the train was not what would have prevented the accident; rather it would have been the combination of the Final Rule’s job briefing requirements and train approach warning. Thus, FRA believes that the potential safety costs of this modification are negligible. 3. Deletion of Requirement That NonControlled Track Be Treated as an Adjacent Controlled Track FRA’s response deletes the requirement that a non-controlled track whose track center is spaced 19 feet or less from the occupied track be treated as an adjacent controlled track. This requirement in the Final Rule was not an RSAC consensus agreement, but rather was added into the Final Rule by FRA in response to a comment on the NPRM. The AAR/ASLRR Petition noted that the Final Rule’s provision requiring that roadway work groups treat a noncontrolled track as an adjacentcontrolled track could cause confusion. APTA’s Petition expressed the separate concern that the provision would disrupt scheduled passenger train operations and, thus, also affect the cost of scheduled train operations in a manner which was not contemplated by FRA in the Final Rule. FRA believes that non-controlled tracks may have accounted for equivalent to 1–2 percent of the total siding track mileage that would have been affected by the Final Rule. Based on this small percentage of total track mileage affected, FRA roughly estimates that removing noncontrolled track from the coverage of this rule would reduce the delay costs of slowing trains by a minimum of roughly $750 per year. The total discounted cost savings over a 20-year period is $8,000 (PV, 7) and $11,200 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 (PV, 3).26 FRA has no record of injuries or fatalities involving roadway workers on an occupied track that also involved train operations on an adjacent noncontrolled track. Given the limited circumstances under which this requirement would have applied, there is little risk to the roadway workers by excluding it. FRA no longer has any reason, quantifiable or otherwise, to believe that the benefits of this Final Rule provision exceed its costs. 4. Exemption for Rail-Bound Vehicles Used for Conducting Inspections or Performing Minor Correction Work The Final Rule Amendments provide an exemption for rail-bound vehicles used for conducting inspections, performing minor correction work or welding while applying the same limitations that apply to hi-rail vehicles. The AAR/ASLRRA Joint Petition requested this exception for rail-bound vehicles where manual inspections or minor correction work are being conducted, because they involve the same activities as those performed during an inspection conducted by a hirail vehicle (which are excepted from the Final Rule’s requirements). Neither the RSAC consensus agreement nor the Final Rule addressed rail-bound vehicles performing inspection or minor correction work. The BMWED/BRS joint comment submitted in response to the Petitions stated that they did not oppose expanding this exception to rail-bound equipment per the AAR/ASLRRA Joint Petition’s suggestion. FRA agrees, and does not believe that excepting railbound vehicles from the final rule’s requirements will present any additional risk beyond those risks faced by hi-rail vehicles and the roadway workers working near them. In the process of reviewing the AAR/ASLRRA Joint Petition, FRA recognized that there were a substantial number of other railbound vehicles used for these functions. Rail bound vehicles often have the capability to perform automated track inspections for geometry, gage restraint or internal flaws. FRA believes that limiting the productivity of such vehicles might reduce their ability to assist in identifying track related hazards and therefore limit their ability to prevent track-caused accidents. It is difficult to estimate the foregone benefit 26 FRA estimated this cost savings based on the figure of 1–2 percent of all siding track mileage affected and applying 1 percent of the total estimated on-track safety (§ 214.336) costs of this rulemaking. The APTA Petition asserted this provision (if not amended by FRA) would cause passenger train operation disruptions. However, FRA does not have data to be able to quantify APTA’s assertion regarding resultant large cost savings as a result of this amendment. E:\FR\FM\10JAR1.SGM 10JAR1 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES of avoiding those track-caused accidents, but FRA believes the accident costs avoided far exceed any risks induced by modifying the Final Rule. FRA does not have sufficient information available to reliably estimate how frequently this exception would be applicable. Further, FRA does not have any record of accidents having occurred that would be prevented by subjecting the newly excluded work to the provisions of the Final Rule. Nonetheless, because there is no reason to distinguish minor corrective work being performed from rail bound vehicles from identical work being performed from hi-rail vehicles, FRA is adopting the exception, but does not analyze the exception further. 5. Expansion of the Exception Pertaining to Repairs Performed on Roadway Maintenance Machines or Equipment The Final Rule Amendments expand the exception pertaining to repairs performed alongside roadway maintenance machines or equipment contained in the Final Rule to also include work performed within the perimeter of the machine or equipment. The AAR/ASLRRA Joint Petition noted that the exception as stated in the Final Rule was too narrow and should also apply to a worker positioned within the perimeter of the equipment, without regard to whether the maintenance or repairs are performed while positioned on a side of the occupied track. They also noted that that a repair person who is working beneath a machine should not be forced to extract himself or herself each time a train passed on an adjacent controlled track as this could increase the risk of injury to the worker, and that a roadway worker working performing repairs under the machine is not at risk of being struck by a train on the adjacent track. FRA did not consider these potential risks in its analysis of the Final Rule but agrees with AAR’s assertions. Consequently, FRA’s response adds an alternate condition that would expand the existing exception to include a roadway worker performing maintenance while positioned within the perimeter of the machine or equipment (either on or under it). This amendment to the Final Rule will reduce the risk of injury to employees extracting themselves from a machine or equipment in these circumstances, and, thus, will eliminate any potential costs associated with those potential injuries. This exception from the requirements of the Final Rule will also alleviate virtually all of the estimated $14 million annual cost that AAR’s comment on the Petitions stated VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 would result if the Final Rule applied to repairs performed on roadway maintenance machines standing on an adjacent controlled track.27 The total cost savings of this amendment over 20 years is $280 million. The discounted value of this cost is $149.2 million (PV, 7) and $208.3 million (PV, 3). The benefits of this change come both from reduced burden on productivity and from enhanced safety of workers who will not have to extricate themselves from under machinery, with a risk of injury each time they extricate themselves. FRA has no data on which to base an estimate of the reduced burden on productivity. Of course, since this provision had not yet taken effect, FRA had not seen any injuries caused by employees extricating themselves from under machinery in order to comply with the provision. FRA has no data on which to base an estimate of that risk. On the other hand, workers remaining under machinery may face a very small risk from potential train accidents that could injure the workers if the machines they are working on get hit in a collision between the train and roadway maintenance machines. The cost of this change, if any, would be a reduction in the safety benefit of having workers extricate themselves from under the machinery so as to be safe in the event of such a collision. FRA has no data on which to base that estimate, either. Special Sensitivity Analysis of the Amended 2011 Final Rule As discussed above, in response to the Petitions FRA has also prepared a Special Sensitivity Analysis, which analyzes the Amended Final Rule, comprising the requirements of the 2011 Final Rule as revised by the Final Rule Amendments described above. The Special Sensitivity Analysis addresses the concerns raised in the Petitions regarding the cost-benefit analysis of the 2011 Final Rule. FRA notes that that this Special Sensitivity Analysis is not an evaluation of the 2011 Final Rule, and that it uses updated VSL and wage rate estimates. 27 The cost of repairing roadway maintenance machines was not specifically figured in the Final Rule’s RIA. Instead, the RIA generally assessed the cost of complying, as such repair activity on an occupied track is ‘‘roadway work’’ and, thus, it was not contemplated by FRA that such work was not covered by the Final Rule. However, because the Final Rule Amendments further expand the exception that would accommodate such repair work, FRA believes that AAR’s estimated cost is overstated and such repair work will, in all but rare circumstances, be able to be performed without these costs being incurred because the Amended Final Rule’s requirements will not apply. PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 1761 Requests Denied (Alternatives to the Final Rule) FRA is denying two of the requests made in joint AAR/ASLRRA Joint Petition. Those requests were to: (1) Clarify that the Final Rule did not address repair and maintenance of roadway maintenance machines, and (2) amend the Final Rule to permit work to resume when the leading end, rather than the trailing end, of a train traveling over 25 mph has passed a roadway work group on an adjacent occupied track (trailing end provision). Since FRA is not making any regulatory modifications based on these requests, FRA is not accounting for any changes in costs or benefits in analyzing the denied requests in this response to the Petitions. 1. Application of the Final Rule to Roadway Maintenance Machine Repair FRA is denying the first request because most of the work performed on roadway maintenance machines may be accomplished without the requirements of the Amended Final Rule applying to such work, particularly in light of FRA’s decision to grant the request to expand the exception mentioned above pertaining to work performed within the perimeter of (to include on or under) roadway maintenance machines. Further, FRA does not believe that AAR’s assertion that the repair of roadway maintenance machines on an adjacent track was not intended to be covered by the final rule has merit. Since the 1996 promulgation of the RWP regulations at 49 CFR part 214, such repair work to roadway maintenance machines or equipment has always required that on-track safety be established when roadway workers have the potential to foul track. 2. Trailing End Provision FRA is denying the second request regarding the trailing end provision. AAR’s comment on the Petitions significantly overestimated the costs of complying with this provision ($56 million annually). Stopping work rather than slowing trains increases the time of track occupancy required to perform the maintenance, and the track occupancy itself by a roadway work group is the most costly factor involved in the analysis. FRA staff conducted a modeling analysis to calculate the delay associated with implementing this provision in the Amended Final Rule, and the results showed that congestioninduced costs were limited when freight train volumes were at or above a ten train per shift (7 hours per shift affected by the Amended Final Rule) threshold. E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES 1762 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations Moreover, once the leading end of a freight train is slowed to 25 mph (a requirement agreed to by AAR) then the ability of a freight train to increase speed while passing a work gang is extremely limited. Thus, in FRA’s view, the overall impact of this requirement is far less than the impact claimed by AAR in its petition. Further, when trains pass a roadway work group on an adjacent controlled track, injury risks are present (risk of shifted loads/shifted ladings, loose banding, dragging chains/binders, loose brake piping, loose/swinging boxcar doors, and fragmented brake shoes). The 2011 Final Rule provided that roadway workers may resume work only after the trailing end of a train or other on-track equipment (authorized to travel past the roadway work gang at a speed greater than 25 mph) has passed the roadway work group (‘‘trailing end’’ provision). The AAR/ASLRRA Joint Petition requested that the Final Rule be modified to permit roadway workers to resume work after the leading end of a train has passed. They cited the following points as support for their request: (1) There are no fatalities from shifted loads and no widespread problem of employees injured by shifted loads; (2) there are many railroad employees working near passing trains, not just roadway workers; (3) there is a heightened awareness of the roadway workers after the leading end of a train passes; and (4) prohibiting the resumption of work until the entire train or equipment has passed would adversely affect productivity and require the hiring of additional roadway workers, costing the railroads approximately $56 million annually (based on an estimate for four Class I railroads alone). APTA’s comment expressed support for the AAR/ASLRRA Joint Petition’s position with regard to the ‘‘trailing end’’ provision. The BMWED/BRS joint comment stated that the AAR/ASLRRA Joint Petition ignored the risks associated with shifted loads/ shifted ladings and the hazards associated with materials being kicked up by trains operating at track speed. FRA’s analysis has not found cases above a certain train traffic volume (ten trains per shift) where stopping work while trains pass at greater than 25 mph (or, as amended, greater than 40 mph for passenger trains) would be less costly than slowing trains to 25 mph (or 40 mph for passenger) for any likely roadway worker work groups on an adjacent occupied track. Stopping work increases the time of track occupancy required to perform the maintenance. The track occupancy itself by a roadway VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 work group is the most costly factor involved in the analysis. FRA performed modeling, described in more detail in the Special Sensitivity Analysis, that analyzes the impacts of the Amended Final Rule and which addresses petitioners’ concerns with the previous analysis. The 20-year discounted costs of the trailing end provision of the 2011 Final Rule are estimated to total $841,300, discounted at 7 percent or $1,185,447, discounted at 3 percent. These costs are far below AAR’s estimates of $56 million per year. This point is discussed in further detail in the Special Sensitivity Analysis. Also, in rejecting AAR’s petition, FRA is retaining the existing maximum speed of 25 mph for adjacent-controlled-track movements of freight trains and other freight on-track equipment movements which permits roadway work to continue on the occupied adjacent track. As mentioned above, when freight trains pass works zones on an adjacent track, the safety risk of shifted loads is present, as well as the safety risk of swinging doors, loose banding, and dragging equipment, and the hazards associated with debris, dust, stone, and construction/maintenance materials being strewn by freight trains, which tend to be longer and much heavier than passenger trains. FRA’s revised analysis of the impact of the combined final rules shows that congestion impacts that slow traffic when a track is occupied also limit the costs of slowing trains to 25 mph when they pass an adjacent occupied track. The costs, while not negligible, are much lower than the safety benefits provided. The 20-year discounted costs of slowing trains to 25 mph for adjacent-controlled-track movements of freight trains and other freight on-track equipment movements, exclusive of trailing end costs, will be $7.3 million, discounted at 7 percent or $10.2 million, discounted at 3 percent. Clarification In response to AAR’s request in its Petition, FRA also clarified how railroads may release working limits. A clarification neither removes nor imposes a requirement and therefore creates neither benefits nor costs. Conclusion FRA believes the cost-saving benefits of the Final Rule Amendments exceed their costs. B. Regulatory Flexibility Act and Executive Order 13272; Final Regulatory Flexibility Assessment The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive Order 13272 require a review of proposed and PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 final rules to assess their impacts on small entities. FRA certifies that the Final Rule Amendments will not have a significant economic impact on a substantial number of small entities. ‘‘Small entity’’ is defined in 5 U.S.C. 601 (Section 601). Section 601(3) defines a small entity as having the same meaning as ‘‘small business concern’’ under Section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) includes within the definition of small entities not-for-profit enterprises that are independently owned and operated, and are not dominant in their fields of operation. Additionally, Section 601(5) defines small entities as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000. The U.S. Small Business Administration (SBA) stipulates in its size standards that the largest a railroad business firm that is for-profit may be, and still be classified as a small entity, is 1,500 employees for ‘‘line haul operating railroads’’ and 500 employees for ‘‘switching and terminal establishments.’’ Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final policy that formally establishes small entities as railroads that meet the line haulage revenue requirements of a Class III railroad.28 The revenue requirements are currently $20 million or less in annual operating revenue. The $20 million limit (which is adjusted by applying the railroad revenue deflator adjustment) 29 is based on the Surface Transportation Board’s (STB) threshold for a Class III railroad carrier. FRA is using the STB’s threshold in its definition of small entities for railroads affected by this rule. FRA has also adopted the STB threshold for Class III railroad carriers as the size standard for railroad contractors.30 FRA estimates that 703 railroads will be affected by the Amendments. This number equals the number of railroads that reported to FRA in 2011, minus those railroads that are tourist, scenic, excursion, or historic railroads and are not part of the general system (these railroads are exempt from the rule). Of those railroads, 44 are Class 28 See 68 FR 24891 (May 9, 2003); 49 CFR part 209, Appendix C. 29 For further information on the calculation of the specific dollar limit, please see 49 CFR part 1201. 30 See 68 FR 24891 (May 9, 2003). E:\FR\FM\10JAR1.SGM 10JAR1 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations I, Class II, commuter, and intercity passenger railroads. By FRA’s definition of a small entity, two commuter railroads would be considered to be small entities. The remaining 659 railroads are also assumed to be small railroads for the purpose of this assessment, for a total of 661 small entities subject to this rule. However, because of certain characteristics that these railroads typically have (most small railroads do not have territories with adjacent controlled tracks, but rather only single-track operations), there should not be any impact on the majority of them. Some small railroads, such as the tourist and historic railroads, which operate across the lines of other railroads, are not subject to the applicability of the final rule because they do not own the track over which they operate. They might be affected by the impact, although beneficial, of the requirements of the Amendments. The impacts on entities not directly subject to the regulation are not considered in this Regulatory Flexibility Analysis. Finally, other small railroads, if they do have more than a single track, typically have operations that are light enough such that the railroads have generally always performed the pertinent trackside work with the track and rightof-way taken out of service, or conducted the work during hours that the track is not used. Thus, although 661 small railroads will be subject to this rule, very few actually have operations that will be affected by this rulemaking. FRA does not believe that a substantial number of small entities will be affected. FRA is uncertain as to the number of contractors that will be affected by the Amendments. FRA is aware that some railroads hire contractors to conduct some of the functions of roadway workers on their railroads. However, most of the cost savings associated with the burdens from the Amendments will ultimately get passed on to the pertinent railroad. In addition, at the proposed rule stage, FRA requested information related to contractors and the burdens that might impact them as a result of the proposed rule and received none. Hence, FRA is confident that the Amended Final Rule’s requirements, which have not changed significantly from those proposed in the NPRM or the Final Rule published in November 2011, other than to reduce burdens, will not have an impact on any contractors that will perform track work on a small railroad. To the extent that any provisions of this rule do affect small entities, the effects are likely to be beneficial, as the Amendments only provides regulatory relief from the requirements originally imposed by the 1763 Final Rule. FRA does not believe the impact on any small entity will be significant. No other small businesses (nonrailroads) are expected to be impacted by the Amendments. FRA certified that the Final Rule (76 FR 74586) was not expected to have a significant economic impact on a substantial number of small entities under 5 U.S.C. 605(b). Having made the determinations noted above, FRA certifies that the Final Rule Amendments will not have a significant economic impact on a substantial number of small entities under 5 U.S.C. 605(b). C. Paperwork Reduction Act The information collection requirements in this final rule associated with FRA’s response to petitions for reconsideration remain unchanged from the previous publication of this final rule and are being submitted upon publication in the Federal Register for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain the current information collection requirements and the estimated time to fulfill each requirement are as follows, and also remain unchanged: Respondent universe Total annual responses Average time per response Form FRA F 6180.119—Part 214 Railroad Workplace Safety Violation Report. 214.303—Railroad On-Track Safety Programs —Amendments to Programs ........................ mstockstill on DSK4VPTVN1PROD with RULES CFR Section 350 Safety Inspectors .. 150 forms ..................... 4 hours ......................... 600 60 Railroads ................. 20 hours; 4 hrs ............. 2,736 5 New Railroads .......... 20 Railroads ................. 20 amend. + 584 amend. 5 new prog ................... 80 challenges ............... 250 hours ..................... 4 hours per challenge .. 1,250 320 50,000 Rdwy Workers 24,500 Rdwy Workers 16,350,000 brf .............. 2,403,450 brf ................ 2 minutes ..................... 30 seconds ................... 545,000 20,029 8,583 Roadway Workers. 50,00 Roadway Workers. 700,739 authorities ...... 1 minute ....................... 11,679 36,500 comm ............... 15 seconds ................... 152 718 Railroads ............... 50,000 notifications ...... 10 minutes ................... 8,333 100 Railroads ............... 10,000 notific ................ 15 seconds ................... 42 100 Railroads ............... 3,000 comm ................. 1 minute ....................... 50 100 Railroads ............... 3,000 notific .................. 15 seconds ................... 13 100 Railroads ............... 1,500 comm ................. 1 minute ....................... 25 —Subsequent Years: New Programs .......... 214.313—Good Faith Challenges to On-Track Safety Rules. 214.315/335—Supervision + communication —Regular Job Briefings ............................... —Adjacent-Track Safety Briefings (New) ..... 214.321—Exclusive Track Occupancy: Working Limits —Written authority to roadway worker in charge. 214.325—Train Coordination—Establishing Working Limits through Communication. 214.327—Inaccessible Track —Working Limits on Non-controlled Track: Notifications. 214.336—Procedures for Adjacent-Track Movements Over 25 mph—Notifications/Watchmen/ Lookout Warnings. —Roadway Worker Communication with Train Engineers or Equipment Operators. —Procedures for Adjacent-Track Movements 25 mph or less—Notifications/ Watchmen/Lookout Warnings. —Roadway Worker Communication with Train Engineers or Equipment Operators. VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\10JAR1.SGM 10JAR1 Total annual burden hours 1764 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations CFR Section Respondent universe Total annual responses Average time per response —Exceptions to the requirements in paragraphs (a), (b), and (c) for adjacent-controlled-track on-track safety: Work activities involving certain equipment and purposes—On-Track Job Safety Briefings. 214.337—On-Track Safety Procedures for Lone Workers: Statements by Lone Workers. 214.343/345/347/349/351/353/355—training ....... —Additional on-track safety training (New) .. —Records of Training .................................. 100 Railroads ............... 1,030,050 briefings ...... 15 seconds ................... 4,292 718 Railroads ............... 2,080,000 statements .. 30 seconds ................... 17,333 50,000 Rdwy Workers 35,000 Rdwy Workers 50,000 Roadway Workers. 50,000 tr. RW ............... 35,000 tr. RW ............... 50,000 records ............. 4.5 hours ...................... 5 min ............................ 2 min ............................ 225,000 2,917 1,667 50,000 Rdwy Workers 125 notific ..................... 10 minutes ................... 21 644 Railroads ............... 644 Railroads/200 contractors. 10 procedures .............. 500 lists ........................ 2 hours ......................... 1 hour ........................... 20 500 644 Railroads/200 contractors. 644 Railroads ............... 150 additions/designations. 1,000 stickers ............... 5 minutes ..................... 13 5 minutes ..................... 83 644 Railroads ............... 3,700 identified mechanisms. 5 minutes ..................... 308 703 Railroads ............... 200 mechanisms .......... 5 minutes ..................... 17 644 Railroads ............... 10 minutes; 20 minutes 250 644 Railroads ............... 500 requests + 500 responses. 500 stencils .................. 5 minutes ..................... 42 644 Railroads ............... 1,000 stencils ............... 5 minutes ..................... 83 644 Railroads ............... 644 Railroads ............... 644 Railroads ............... 2,000 records ............... 500 tags + 500 reports 550 tags + 550 reports 60 minutes ................... 10 min.; 15 min ............ 5 min.; 15 min .............. 2,000 208 184 644 Railroads ............... 250 records .................. 15 minutes ................... 63 214.503—Good Faith Challenges; Procedures for Notification and Resolution —Notifications for Non-Compliant Roadway Maintenance Machines or Unsafe Condition. —Resolution Procedures .............................. 214.505—Required Environmental Control and Protection Systems For New On-Track Roadway Maintenance Machines with Enclosed Cabs. —Designations/Additions to List ................... mstockstill on DSK4VPTVN1PROD with RULES 214.507—A-Built Light Weight on New Roadway Maintenance Machines. 214.511—Required Audible Warning Devices For New On-Track Roadway Maintenance Machines. 214.513—Retrofitting of Existing On-Track Roadway Maintenance Machines —Identification of Triggering Mechanism— Horns. 214.515—Overhead Covers For Existing OnTrack Roadway Maintenance Machines. 214.517—Retrofitting of Existing On-Track Roadway Maintenance Machines Manufactured On or After Jan. 1, 1991. 214.518—Safe and Secure Position for riders —Positions identified by stencilings/markings/notices. 214.523—Hi-Rail Vehicles—Inspections/Records —Non-Complying Conditions ....................... 214.527—On-Track Roadway Maintenance Machine; Inspection for Compliance and Repair Schedules. 214.533—Schedule of Repairs Subject to Availability of Parts—Records of Compliance with this Section. All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the unchanged paperwork package submitted to OMB, contact Mr. Robert Brogan at 202–493– 6292 or Ms. Kimberly Toone at 202– 493–6132 or via email at the following addresses: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via email to VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 the Office of Management and Budget at the following address: oira_ submissions@omb.eop.gov. mailto:victor.angelo@fra.dot.gov. OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. The current OMB control number for this collection of information is OMB No. 2130–0539. PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 Total annual burden hours D. Federalism Implications Executive Order 13132, ‘‘Federalism’’ (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Under Executive Order 13132, the agency may not issue a regulation with federalism E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation. This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. This final rule would not have a substantial effect on the States or their political subdivisions; it would not impose any compliance costs; and it would not affect the relationships between the Federal government and the States or their political subdivisions, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. However, this final rule could have preemptive effect by operation of law under certain provisions of the Federal railroad safety statutes, specifically the former Federal Railroad Safety Act of 1970, repealed and recodified at 49 U.S.C. 20106 (Section 20106). Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the ‘‘essentially local safety or security hazard’’ exception to Section 20106. In sum, FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this final rule has no federalism implications, other than the possible preemption of State laws under Federal railroad safety statutes, specifically Section 20106. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this final rule is not required. E. Environmental Impact FRA has evaluated this final rule in accordance with its ‘‘Procedures for Considering Environmental Impacts’’ (FRA’s Procedures) (64 FR 28545, May VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this final rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA’s Procedures. See 64 FR 28547 (May 26, 1999). In accordance with section 4(c) and (e) of FRA’s Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this final rule is not a major Federal action significantly affecting the quality of the human environment. F. Unfunded Mandates Reform Act of 1995 Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, 2 U.S.C. 1531), each Federal agency ‘‘shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).’’ Section 202 of the Act (2 U.S.C. 1532) further requires that ‘‘before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement’’ detailing the effect on State, local, and tribal governments and the private sector. The final rule will not result in the expenditure, in the aggregate, of $140,800,000 or more (as adjusted annually for inflation) in any one year, and thus preparation of such a statement is not required. G. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant energy action.’’ 66 FR 28355 (May 22, 2001). Under the Executive Order, a ‘‘significant energy action’’ is defined as any action by an agency (normally published in the Federal Register) that PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 1765 promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this final rule in accordance with Executive Order 13211. FRA has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this final rule is not a ‘‘significant energy action’’ within the meaning of Executive Order 13211. H. Trade Impact The Trade Agreements Act of 1979 (Pub. L. 96–39, 19 U.S.C. 2501 et seq.) prohibits Federal agencies from engaging in any standards setting or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. FRA has assessed the potential effect of this final rule on foreign commerce and believes that its requirements are consistent with the Trade Agreements Act of 1979. The requirements imposed are safety standards, which, as noted, are not considered unnecessary obstacles to trade. I. Privacy Act Interested parties should be aware that anyone is able to search the electronic form of all written comments received into any agency docket by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Please see the privacy notice at https:// www.regulations.gov/#!privacyNotice. You may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477–78) or you may visit https://www.dot.gov/privacy.html. List of Subjects in 49 CFR Part 214 Occupational safety and health, Penalties, Railroad safety. E:\FR\FM\10JAR1.SGM 10JAR1 1766 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations The Rule For the reasons discussed in the preamble, FRA amends part 214 of title 49 of the Code of Federal Regulations as follows: PART 214—[AMENDED] 1. The authority citation for part 214 is revised to read as follows: ■ Authority: 49 U.S.C. 20102–20103, 20107, 21301–21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.89. Subpart C—Roadway Worker Protection 2. Amend § 214.336 by: a. Revising paragraph (a)(2), b. Revising paragraph (a)(3) definitions of ‘‘Adjacent controlled track’’ and ‘‘Minor correction,’’ ■ c. Revising the heading and introductory text of paragraph (b), ■ d. Revising paragraph (c), ■ e. Revising paragraph (e)(2), ■ f. Revising paragraph (e)(3)(i), ■ h. Revising Table 1, and ■ i. Revising Figure 1 to read as follows: ■ ■ ■ § 214.336 On-track safety procedures for certain roadway work groups and adjacent tracks. mstockstill on DSK4VPTVN1PROD with RULES (a) * * * (2) Special circumstance arising in territories with at least three tracks, if an occupied track is between two adjacent controlled tracks. If an occupied track has two adjacent controlled tracks, and one of these adjacent controlled tracks has one or more train or other on-track equipment movements authorized or permitted at a speed of 25 mph or less (or 40 mph or less for one or more passenger train or other passenger ontrack equipment movements), and the other adjacent controlled track has one or more concurrent train or other ontrack equipment movements authorized or permitted at a speed over 25 mph (or over 40 mph for one or more passenger train or other passenger on-track equipment movements), the more restrictive procedures in paragraph (b) of this section apply. (3) * * * Adjacent controlled track means a controlled track whose track center is VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 spaced 19 feet or less from the track center of the occupied track. * * * * * Minor correction means one or more repairs of a minor nature, including, but not limited to, welding, spiking, anchoring, hand tamping, and joint bolt replacement, that are accomplished with hand tools or handheld, handsupported, or hand-guided power tools. The term does not include machine spiking, machine tamping, or any similarly distracting repair. * * * * * (b) Procedures for adjacentcontrolled-track movements over 25 mph (or over 40 mph if passenger movements). If a train or other on-track equipment is authorized to move on an adjacent controlled track at a speed greater than 25 mph, or at a speed greater than 40 mph for a passenger train or other passenger on-track equipment movement, each roadway worker in the roadway work group that is affected by such movement must comply with the following procedures: * * * * * (c) Procedures for adjacent-controlledtrack movements 25 mph or less (or 40 mph or less if passenger movements). If a train or other on-track equipment is authorized or permitted to move on an adjacent controlled track at a speed of 25 mph or less, or at a speed of 40 mph or less for a passenger train or other passenger on-track equipment movement, each roadway worker in the roadway work group that is affected by such movement must comply with the procedures listed in paragraph (b) of this section, except that equipment movement on the rails of the occupied track and on-ground work performed exclusively between the rails (i.e., not breaking the plane of the rails) of the occupied track may continue, provided that no on-ground work is performed within the areas 25 feet in front of and 25 feet behind any on-track, selfpropelled equipment or coupled equipment permitted to move on the occupied track. * * * * * (e) * * * PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 (2) Maintenance or repairs performed either alongside, or within the perimeter of, a roadway maintenance machine or coupled equipment on the occupied track. (i) One or more roadway workers performing maintenance or repairs alongside a roadway maintenance machine or coupled equipment, provided that such machine or equipment would effectively prevent the worker from fouling the adjacent controlled track on the other side of such equipment, and that such maintenance or repairs are performed while positioned on a side of the occupied track as described in paragraph (e)(1)(i), (ii), or (iii) and Table 1 of this section. (ii) One or more roadway workers on or under a roadway maintenance machine or coupled equipment performing maintenance or repairs within the perimeter of the machine or equipment, provided that no part of their person breaks the plane of the rail of the occupied track except when toward one of the sides of the occupied track as described in paragraph (e)(1)(i), (ii), or (iii) and Table 1 of this section. A boom or other equipment extending beyond the body of a roadway maintenance machine or coupled equipment toward an adjacent controlled track is not considered to be within the perimeter of the machine or coupled equipment. (3) * * * (i) A hi-rail vehicle or other railbound vehicle (other than a catenary maintenance tower vehicle) being used for inspection or minor correction purposes, provided that such vehicle is not coupled to one or more railroad cars. In accordance with § 214.315(a), where multiple hi-rail or rail-bound vehicles being used for inspection or minor correction are engaged in a common task, the on-track safety job briefing shall include discussion of the nature of the work to be performed to determine if adjacent-controlled-track on-track safety is necessary. * * * * * E:\FR\FM\10JAR1.SGM 10JAR1 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations 1767 TABLE 1—SUMMARY OF ON-TRACK SAFETY PROCEDURES FOR CERTAIN ROADWAY WORK GROUPS AND ADJACENT TRACKS Example number/ diagram number (see figure 1) ‘‘Side A’’ of the occupied track—the side from the vertical plane of the near running rail of the occupied track extending outward through to the fouling space of the adjacent controlled track (‘‘ ‘No. 1’ Track’’ or ‘‘No. 1’’) Method of OnTrack Safety on Side A Requirement Working limits or train approach warning. 2 ............... Working limits ...... 3 ............... Working limits ...... 4 ............... Train approach warning. 5 ............... mstockstill on DSK4VPTVN1PROD with RULES 1 ............... None, but with inter-track barrier. VerDate Mar<15>2010 16:30 Jan 09, 2014 On or between the rails of the occupied track (‘‘ ‘No. 2’ track’’ or ‘‘number 2’’), where on-track Safety Is Established through Working Limits Requirements Upon receiving a notification or warning for movement(s) (‘‘movement notification or warning’’) for No. 1, cease work and occupy a predetermined place of safety (‘‘PPOS’’) 1. Upon movement notification or warning for No. 1, cease work and occupy a PPOS, except work may continue during movement(s) on No. 1 auth’d. at 25 mph or less (or 40 mph or less for passenger train movements) if maintain 25′ spacing 2. Upon movement notification Upon movement notification for No. 1 or No. 3, cease for No. 1, cease work work and occupy a and occupy a PPOS. PPOS, except work may Work 3 is not required to cease during movecontinue during movement(s) on No. 3. ment(s) on No. 1 or No. 3 auth’d. at 25 mph or less (or at 40 mph or less for passenger train movements) if maintain 25′ spacing 2. Upon movement notification Upon movement notification for No. 1, cease work for No. 1 or warning for and occupy a PPOS. No. 3, cease work and Work 3 is not required to occupy a PPOS, except cease during movework may continue during ment(s) on No. 3. movement(s) on No. 1 or No. 3 auth’d. at 25 mph or less (or at 40 mph or less for passenger train movements) if maintain 25′ spacing 2. Upon movement warning Upon movement warning for No. 1 or No. 3, cease for No. 1 or No. 3, cease work and occupy a PPOS. work and occupy a PPOS, except work may continue during movement(s) on No. 1 or No. 3 auth’d. at 25 mph or less (or at 40 mph or less for passenger train movements) if maintain 25′ spacing 2. Work is prohibited on No. 1 Work is not required to and up to barrier (‘‘Side cease during moveA1’’). Work is not rement(s) on No. 1. quired to cease btwn. barrier and near running rail of occupied track (‘‘Side A2’’) during movement(s) on No. 1. Jkt 232001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 ‘‘Side B’’ of the occupied track—either (1) the side with no adjacent track or (2) the side from the vertical plane of the near running rail of the occupied track extending outward through to the fouling space of the adjacent controlled track (‘‘ ‘number 3’ track’’ or ‘‘number 3’’) Requirements Method of ontrack safety on side B Work 3 is not required to cease during movement(s) on No. 1. Not applicable (N/ A), because there is no adjacent track. Upon movement notification for No. 3, cease work and occupy a PPOS. Work 3 is not required to cease during movement(s) on No. 1. Working limits. Upon movement warning for No. 3 or notification for No. 1, cease work and occupy a PPOS. Train approach warning. Upon movement warning for No. 3 or No. 1, cease work and occupy safety PPOS. Train approach warning. Work is not required to cease during movement(s) on No. 1. N/A, because there is no adjacent track. E:\FR\FM\10JAR1.SGM 10JAR1 1768 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations TABLE 1—SUMMARY OF ON-TRACK SAFETY PROCEDURES FOR CERTAIN ROADWAY WORK GROUPS AND ADJACENT TRACKS—Continued Example number/ diagram number (see figure 1) 6 ............... ‘‘Side A’’ of the occupied track—the side from the vertical plane of the near running rail of the occupied track extending outward through to the fouling space of the adjacent controlled track (‘‘ ‘No. 1’ Track’’ or ‘‘No. 1’’) Method of OnTrack Safety on Side A None, but with inter-track barrier. On or between the rails of the occupied track (‘‘ ‘No. 2’ track’’ or ‘‘number 2’’), where on-track Safety Is Established through Working Limits ‘‘Side B’’ of the occupied track—either (1) the side with no adjacent track or (2) the side from the vertical plane of the near running rail of the occupied track extending outward through to the fouling space of the adjacent controlled track (‘‘ ‘number 3’ track’’ or ‘‘number 3’’) Requirement Requirements Requirements Work is prohibited on Side A1. Work 3 is not required to cease on Side A2 during movement(s) on No. 1 or No. 3. Work is not required to cease during movement(s) on No. 1. Upon movement notification or warning for No. 3, cease work and occupy a PPOS, except work may continue during movement(s) on No. 3 auth’d. at 25 mph or less (or at 40 mph or less for passenger trains) if maintain 25′ spacing 2. Upon movement notification or warning for No. 3, cease work and occupy a PPOS. Work 3 is not required to cease during movement(s) on No. 1. Method of ontrack safety on side B Working limits or train approach warning. 1 As used in the above table, a ‘‘predetermined place of safety’’ (or ‘‘PPOS’’) means a specific location that an affected roadway worker must occupy upon receiving a watchman/lookout’s warning of approaching movement(s) (‘‘warning’’) or a roadway worker in charge’s (‘‘RWIC’s’’) notification of pending movement(s) on an adjacent track (‘‘notification’’), as designated during the on-track safety job briefing required by § 214.315. The PPOS may not be on a track, unless the track has working limits on it and no movements permitted within such working limits by the RWIC. Thus, under these circumstances, the space between the rails of the occupied track (No. 2 in this table) may be designated as a place to remain in position or to otherwise occupy upon receiving a warning or notification. The RWIC must determine any change to a PPOS, and communicate such change to all affected roadway workers through an updated on-track safety job briefing. 2 On-ground work is prohibited in the areas 25′ in front of and 25′ behind equipment on the occupied track (No. 2), and must not break the plane of a rail on No. 2 towards a side of No. 2 unless work is permitted on that side. Note, however, that per § 214.336(a)(2), work would no longer be permitted to continue on or between the rails of the occupied track during movement(s) on an adjacent controlled track at 25 mph or less (or at 40 mph or less for passenger trains or other passenger on-track equipment movements) if there is a simultaneous movement on the other adjacent controlled track at more than 25 mph (or at more than 40 mph per hour for passenger train movements or other passenger ontrack equipment movements). 3 Work that does not break the plane of the near running rail of the occupied track (No. 2) is not required to cease during such movements; work that breaks the plane of the near running rail of the occupied track may also continue: 1) during the times that work is permitted on or between the rails of the occupied track in accordance with § 214.336(c) (Procedures for adjacent-controlled-track movements 25 mph or less, or 40 mph or less for passenger train movements or other passenger on-track equipment movements); or 2) if such work is performed alongside or within the perimeter of a roadway maintenance machine or coupled equipment in accordance with § 214.336(e)(2). mstockstill on DSK4VPTVN1PROD with RULES BILLING CODE 4910–06–P VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\10JAR1.SGM 10JAR1 VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4725 E:\FR\FM\10JAR1.SGM 10JAR1 1769 er10ja14.000</GPH> mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations 3. Appendix A to part 214 is amended by removing the space before the superscripts for footnotes 1 and 2, mstockstill on DSK4VPTVN1PROD with RULES ■ VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 revising the entry under Subpart C for § 214.315, revising the entry under PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 Subpart C for § 214.336, and revising footnote 1 to read as follows: E:\FR\FM\10JAR1.SGM 10JAR1 er10ja14.001</GPH> 1770 1771 Federal Register / Vol. 79, No. 7 / Friday, January 10, 2014 / Rules and Regulations APPENDIX A TO PART 214—SCHEDULE OF CIVIL PENALTIES 1 Section 2 * * Violation * * * Willful violation * * * * * * * 214.315 Supervision and communication: (a) * * * (2)–(4) Partial failure of employer to provide on-track safety job briefing ........................................................ (b) Incomplete job briefing ................................................................................................................................ (c)(i) Failure to designate roadway worker in charge of roadway work group ................................................ (ii) Designation of more than one roadway worker in charge of a roadway work group ................................. (iii) Designation of non-qualified roadway worker in charge of roadway work group ...................................... (d)(i) Failure to notify roadway workers of on-track safety procedures in effect ............................................. (ii) Incorrect information provided to roadway workers regarding on-track safety procedures in effect .......... (iii) Failure to notify roadway workers of change in on-track safety procedures ............................................. (e)(i) Failure of lone worker to communicate with designated employee for daily job briefing ....................... (ii) Failure of employer to provide means for lone worker to receive daily job briefing ................................... * * * * * * * 214.336 On-track safety procedures for certain roadway work groups and adjacent tracks: (a) * * * (2) Failure to implement the more restrictive procedure required by paragraph (b) during special circumstance of concurrent movement(s) on two adjacent controlled tracks where one movement is authorized or permitted at a speed over 25 mph (or over 40 mph for a passenger movement) .................... * * * * * * (c) Failure to maintain 25-foot spacing between on-track, self-propelled equipment or coupled equipment and roadway workers(s) on the occupied track during an adjacent-controlled track movement at 25 mph or less (or at 40 mph or less for a passenger movement) ........................................................................... * Subpart C—Roadway Worker Protection Rule * * * * * 2,000 2,000 2,000 1,000 3,000 3,000 3,000 3,000 3,000 * 1,500 3,000 * 2,000 * 1A 4,000 5,000 5,000 2,000 6,000 6,000 6,000 6,000 1,500 6,000 4,000 * penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $105,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. Failure to observe any condition(s) of an exception set forth in paragraph (e) of § 214.336 deprives the railroad or contractor of the benefit of the exception and makes the railroad or contractor, and any responsible individuals, liable for penalty under the particular regulatory provision(s) from which the exception would otherwise have granted relief. 2 The penalty schedule uses section numbers from 49 CFR part 214. If more than one item is listed as a type of violation of a given section, each item is also designated by a ‘‘penalty code,’’ which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ. Issued in Washington, DC, on December 27, 2013. Stacy Cummings, Executive Director. [FR Doc. 2013–31417 Filed 1–9–14; 8:45 am] mstockstill on DSK4VPTVN1PROD with RULES BILLING CODE 4910–06–C VerDate Mar<15>2010 16:30 Jan 09, 2014 Jkt 232001 PO 00000 Frm 00039 Fmt 4700 Sfmt 9990 E:\FR\FM\10JAR1.SGM 10JAR1

Agencies

[Federal Register Volume 79, Number 7 (Friday, January 10, 2014)]
[Rules and Regulations]
[Pages 1743-1771]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31417]


=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2008-0059, Notice No. 8]
RIN 2130-AC37


Railroad Workplace Safety; Adjacent-Track On-Track Safety for 
Roadway Workers

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

ACTION: Final rule; response to petitions for reconsideration.

-----------------------------------------------------------------------

SUMMARY: This final rule responds to two petitions for reconsideration 
of FRA's final rule published November 30, 2011, which would have 
amended the existing regulations governing the on-track safety 
protections of roadway workers from the movement of trains or other on-
track equipment on an adjacent controlled track, but which has not 
taken effect. In response to the petitions for reconsideration, FRA 
delayed the effective date of the November 30, 2011, final rule until 
July 1, 2013 (subsequently delayed until July 1, 2014), and requested 
comments on the petitions. This document further responds to the 
petitions, addresses the comments on the petitions, and amends and 
clarifies certain sections of the November 30, 2011, final rule.

DATES: The amendments in this final rule are effective on July 1, 2014.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track 
Division, Office of Safety Assurance and Compliance, FRA, 1200 New 
Jersey Avenue SE., RRS-15, Mail Stop 25, Washington, DC 20590 (202) 
493-6236; or Joseph E. Riley, Track Specialist, Track Division, Office 
of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., 
RRS-15, Mail Stop 25, Washington, DC 20590 (202) 493-6357; or Joseph 
St. Peter, Trial Attorney, Office of Chief Counsel, FRA, 1200 New 
Jersey Avenue SE., RRS-10, Mail Stop 10, Washington, DC 20590 (202) 
493-6052.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    On November 30, 2011, FRA published a final rule (Final Rule) 
governing the on-track safety protections of roadway workers from train 
movements on adjacent controlled tracks. 76 FR 74586. The Final Rule 
requires that railroads adopt specified on-track safety procedures to 
protect certain roadway work groups from the movement of trains or 
other on-track equipment on an adjacent controlled track. These on-
track safety procedures are required for each adjacent controlled track 
when a roadway work group with at least one of the roadway workers on 
the ground is engaged in a common task with on-track, self-propelled 
equipment or coupled equipment on an occupied track. An adjacent 
controlled track is a controlled track whose track center is spaced 19 
feet or less from the track center of an occupied track.
    After publication of the Final Rule, FRA received two petitions for 
reconsideration (Petitions) of certain of the Final Rule's 
requirements. The requests made in the Petitions are described in 
detail below. In response to the Petitions, FRA is modifying the Final 
Rule (Final Rule Amendments; Amendments) to do the following: (1) 
Expand the definition of ``minor correction'' to include welding and 
certain uses of any handheld power tools; (2) increase the maximum 
authorized speed at which passenger trains may move on an adjacent 
controlled track to 40 mph while roadway workers continue their on-
ground work on the occupied track; (3) delete the requirement that a 
non-controlled track whose track center is spaced 19 feet or less from 
the occupied track be treated as an adjacent controlled track; (4) 
exempt rail-bound vehicles (on-track vehicles not equipped with highway 
wheels) used for conducting inspections or performing minor correction 
work (including welding) while applying the same limitations that apply 
to hi-rail vehicles; (5) and expand the exception pertaining to repairs 
performed alongside the roadway work machine or equipment to include 
work within the perimeter of the machine or equipment. FRA previously 
delayed the effective date of

[[Page 1744]]

the Final Rule until July 1, 2014 (78 FR 33754). FRA is denying the 
request to permit roadway workers to resume work after the leading-end 
of a train or other on-track equipment traveling over 25 mph (40 mph 
passenger) has passed a roadway work group on an adjacent controlled 
track, and has retained the Final Rule's requirement that the entire 
train must pass the work zone.
    The Amendments and the other issues raised by the Petitions are 
described in further detail below, and the discussions of the items 
being modified should be read in conjunction with the specific 
discussion in the Section-by-Section Analysis that identifies the 
modifications being made to the text of the Final Rule. For a full 
discussion of those aspects of the rulemaking and the Final Rule that 
remain unchanged, FRA respectfully refers interested parties to the 
agency's preamble discussions and Section-by-Section Analysis of the 
Final Rule and the NPRM. See 76 FR 74586 and 74 FR 61633, respectively.
    FRA estimated the costs associated with the additional 
flexibilities provided by the Amendments being made in response to the 
Petitions in terms of increased risk and the benefits in terms of cost 
savings relative to the burdens imposed by the Final Rule. The table 
below presents the present value of these estimates for the first 20 
years of this rule discounted at 3 percent and 7 percent.

----------------------------------------------------------------------------------------------------------------
                                            Potential cost        Benefits: Estimated      Benefits: Estimated
     Amendments to the final rule            implications        cost savings (PV, 7%)    cost savings  (PV, 3%)
----------------------------------------------------------------------------------------------------------------
Expanding the definition of ``minor    Negligible. Very small   $158.9 Million \1\.....  $223.2 Million.
 correction'' to include welding and    increase in risk. No
 certain uses of any handheld power     quantifiable increases
 tools.                                 in casualties.
Increasing the maximum authorized      Negligible.............  $33.4 Million \2\......  $46.9 Million.
 speed at which passenger trains may                            This estimated benefit   This estimated benefit
 move on an adjacent controlled track                            only considers cost      only considers cost
 to 40 mph while roadway workers                                 savings for LIRR and     savings for LIRR and
 continue their on-ground work on the                            Metro-North.             Metro-North.
 occupied track.
Deleting the requirement that a non-   None: FRA has no record  $8,000 \3\.............  $11,200.
 controlled track whose track center    of past casualties
 is spaced 19 feet or less from the     covered by this
 occupied track be treated as an        provision.
 adjacent controlled track.
Exempting rail-bound vehicles (on-     N/A....................  N/A....................  N/A.
 track vehicles not equipped with
 highway wheels) used for conducting
 inspections, performing minor
 correction work (including welding),
 while applying the same limitations
 that apply to hi-rail vehicles.
Expanding the exception pertaining to  Negligible. Minor        $149.2 Million \4\.....  $208.3 Million.
 repairs performed alongside the        reduction in the        Non-quantified benefits  Non-quantified benefits
 roadway work machine or equipment to   safety benefit of        include lowered injury   include lowered injury
 include work within the perimeter of   workers extricating      risks due to fewer       risks due to fewer
 the machine or equipment.              themselves from under    instances of workers     instances of workers
                                        machinery so as to be    having to extract        having to extract
                                        safe in the event a      themselves from a        themselves from a
                                        collision with the       machine each time a      machine each time a
                                        machinery.               train passes.            train passes.
                                      --------------------------------------------------------------------------
    Total............................  .......................  $341.6 Million.........  $478.4 Million.
----------------------------------------------------------------------------------------------------------------
All values are discounted (PV, 7 and 3%) for a 20-year period.

II. Background

    On January 26, 2005, the Railroad Safety Advisory Committee (RSAC) 
formed the roadway worker protection (RWP) Working Group to consider 
specific actions to advance the on-track safety of employees of covered 
railroads and their contractors who are engaged in maintenance-of-way 
activities throughout the general system of railroad transportation, 
including clarification of existing requirements in 49 CFR part 214. 
The Working Group's assigned task was to review the existing RWP 
regulation, technical bulletins, and a safety advisory dealing with on-
track safety for roadway workers, and, as appropriate, consider 
enhancements to the existing rule that would further reduce the risk of 
serious injury or death to roadway workers. The Working Group was 
directed to report specific actions identified as appropriate, 
including planned milestones for completion of projects and progress 
towards completion, to the full RSAC at each scheduled RSAC meeting.
---------------------------------------------------------------------------

    \1\ From FRA staff estimate.
    \2\ See discussion in section IV.A.2 below. Extrapolated from 
Long Island Rail Road (LIRR) estimate to include the Metro-North 
Commuter Railroad Company, in proportion to passenger miles.
    \3\ From FRA staff estimate.
    \4\ The cost savings estimate is based on an annual $14 million 
in costs from AAR's comment on the Petitions. FRA believes that the 
amendments to the Final Rule will avoid these costs that AAR's 
comment raised.
---------------------------------------------------------------------------

    The Working Group was comprised of members from the following 
organizations:
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association 
(ASLRRA);
     American Train Dispatchers Association;
     Association of American Railroads (AAR), including members 
from BNSF Railway Company (BNSF), Canadian National Railway Company 
(CN), Canadian Pacific Railway, Limited (CP), Consolidated Rail 
Corporation (Conrail), CSX Transportation, Inc. (CSXT), The Kansas City 
Southern Railway Company (KCS), Norfolk Southern Corporation railroads 
(NS), and Union Pacific Railroad Company (UP);
     Belt Railroad of Chicago;
     Brotherhood of Locomotive Engineers and Trainmen;
     Brotherhood of Maintenance of Way Employees Division 
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     FRA;

[[Page 1745]]

     Indiana Harbor Belt Railroad;
     Long Island Rail Road (LIRR);
     Metro-North Commuter Railroad Company (Metro-North);
     Montana Rail Link;
     National Railroad Construction and Maintenance 
Association;
     National Railroad Passenger Corporation;
     Northeast Illinois Regional Commuter Railroad Corporation;
     RailAmerica, Inc.;
     Southeastern Pennsylvania Transportation Authority;
     United Transportation Union; and
     Western New York and Pennsylvania Railroad.
    The Working Group held 12 multi-day meetings and was able to reach 
consensus on 32 separate items related to how to amend existing part 
214's roadway worker protection requirements. On June 26, 2007, the 
full RSAC voted to accept the recommendations presented by the Working 
Group.
    One of the issues on which the Working Group was able to reach 
consensus dealt specifically with adjacent-track on-track safety 
issues. In light of roadway worker fatality trends involving adjacent 
track protections, and to expedite the lowering of the safety risk 
associated with roadway workers fouling adjacent tracks, FRA decided to 
undertake this rulemaking proceeding separately, and in advance of a 
rulemaking addressing all of the consensus items, to specifically 
address adjacent-track safety issues contemplated by the Working Group. 
Accordingly, FRA published an NPRM addressing adjacent-track on-track 
safety on July 17, 2008 (73 FR 41214), but formally withdrew the NPRM 
on August 13, 2008 (73 FR 47124). FRA then issued a revised NPRM, which 
was published on November 25, 2009 (74 FR 61633), and the Final Rule, 
which was published on November 30, 2011 (76 FR 74586), and which was 
to become effective on May 1, 2012.\5\ The Final Rule, upon its 
effective date, will replace FRA's existing provision governing 
adjacent-track on-track safety procedures for roadway workers at 49 CFR 
214.335(c). That existing provision only requires that train approach 
warning be provided on adjacent tracks that are not included within 
working limits for roadway work groups engaged in large-scale 
maintenance or construction projects. The Final Rule specifies more 
comprehensive on-track safety procedures that must be adopted and 
followed to protect roadway workers from the movement of trains or 
other on-track equipment on an ``adjacent controlled track''. An 
``adjacent controlled track'' is a track whose track center is spaced 
19 feet or less from the track center of the occupied track on which a 
roadway work group is conducting work with at least one of the roadway 
workers on the ground engaged in a common task with on-track, self-
propelled equipment or coupled equipment. The Final Rule requires that 
a non-controlled track whose track center is spaced 19 feet or less 
from the track center of the occupied track be treated as an adjacent 
controlled track for purposes of establishing on-track safety when 
there is an adjacent controlled track on the opposite side of the 
occupied track. When train or other on-track equipment movements on an 
adjacent controlled track are permitted to be made at speeds greater 
than 25 mph, roadway workers on the occupied track must cease work and 
occupy a predetermined place of safety. When movements on the adjacent 
controlled tracks are permitted to be made at speeds of 25 mph or less, 
the Final Rule permits roadway workers on the occupied track to 
continue work, provided that the work is performed exclusively between 
the rails of the occupied track, and provided that no on-ground work is 
performed within the areas 25 feet in front of and 25 feet behind any 
on-track, self-propelled equipment or coupled equipment permitted to 
move on the occupied track. The Final Rule also establishes three 
categories of exceptions: (1) On-ground work performed on a side of the 
occupied track meeting specified condition(s); (2) maintenance or 
repairs performed alongside machines or equipment on the occupied 
track; and, (3) work activities involving certain equipment and 
purposes. If the equipment specified in one of the exceptions is being 
used for inspection or minor correction purposes, and otherwise meet 
the criteria for the exception, the work group would not be required to 
establish adjacent-track on-track safety. In the Final Rule, FRA added 
a definition for the term ``minor correction'' that did not include 
welding activities or work involving power hand tools other than 
handheld pneumatic power tools.
---------------------------------------------------------------------------

    \5\ The Final Rule is now scheduled to take effect July 1, 2014. 
78 FR 33754.
---------------------------------------------------------------------------

    In response to the Final Rule, FRA received two petitions for 
reconsideration that raised substantive issues. AAR and ASLRRA filed a 
joint Petition (AAR/ASLRRA Joint Petition), and APTA also filed a 
Petition (APTA's Petition). The AAR/ASLRRA Joint Petition included a 
request for a delay in the effective date of the Final Rule until July 
1, 2013. The Petitions raised issues relating to the cost-benefit 
analysis of the Final Rule, and also requested relief from several 
specific provisions of the Final Rule, principally related to the 
following subjects: The definition of ``minor correction''; the 
requirement that a roadway work group cease working until the trailing 
end of a train authorized to travel more than 25 mph has passed the 
roadway work group; the treatment of an adjacent non-controlled track 
as a controlled track; an additional exception for maintenance or 
repairs being performed within the perimeter of a roadway maintenance 
machine; an additional exception for manual inspections being conducted 
by rail bound vehicles; the release of working limits when the roadway 
work group is in the clear; the application of the Final Rule to repair 
and maintenance of roadway maintenance machines; the effective date of 
the Final Rule; and the maximum speed at which passenger trains may 
pass a roadway work group on an adjacent occupied track while the 
roadway work group continues its on-ground work on the occupied track.
    On March 8, 2012, FRA published a final rule delaying the effective 
date of the Final Rule until July 1, 2013, and establishing a 60-day 
comment period in order to permit interested parties an opportunity to 
respond to the Petitions. 77 FR 13978. FRA received five comments on 
the Petitions from the following parties: AAR; BMWED and BRS (BMWED/BRS 
joint comment); APTA; LIRR; and Metro-North. Some of the comments 
raised additional substantive issues or provided further detailed 
information on the issues already raised in the Petitions. The 
Petitions and the comments on the Petitions are available for review in 
the docket for this rulemaking.\6\ On August 31, 2012, FRA published a 
Federal Register document which explained that, due to the complex 
issues raised and extensive estimates provided in the Petitions and 
public comments received, FRA was continuing to formulate an 
appropriate response. 77 FR 53164. FRA noted that the response to the 
Petitions would be published as soon as practicable. On June 5, 2013, 
FRA published another final rule delaying the effective date of the 
Final Rule until July 1, 2014, explaining that FRA's response to the 
Petitions was still being reviewed, and that this effective date would 
allow railroads appropriate

[[Page 1746]]

time to implement the requirements of, and train their employees on, 
the requirements of the Amended Final Rule prior to its effective date. 
78 FR 33754. Below, this document addresses all of the issues raised in 
the Petitions and also in the public comments received in response to 
the Petitions.
---------------------------------------------------------------------------

    \6\ See Docket No. FRA-2008-0059; available online at https://www.regulations.gov/#!docketDetail;D=FRA-2008-0059.
---------------------------------------------------------------------------

III. Issues Raised by the Petitions

A. Cost-Benefit Analysis

    Both Petitions raised concern with FRA's cost-benefit analysis of 
the Final Rule requirements, such as by saying that the Final Rule did 
not accurately account for the costs of the Final Rule and that the 
Final Rule overstated its potential benefits (AAR/ASLRRA). AAR, APTA, 
LIRR, and Metro-North also raised concerns related to the cost of the 
Final Rule's requirements in their comments on the Petitions. FRA has 
chosen to grant many of the requests for relief raised in the 
Petitions. Thus, many of the concerns related to cost have been 
alleviated, as is explained further below. Further, FRA has calculated 
the costs and benefits of the Amended Final Rule based on information 
conveyed in the Petitions and in the comments. The chart below reflects 
a comparison of (1) the costs and benefits of the Final Rule as 
originally estimated by FRA, (2) the costs and benefits of the Final 
Rule as asserted by AAR, and (3) the costs and benefits of the Amended 
Final Rule as currently estimated by FRA \7\:
---------------------------------------------------------------------------

    \7\ The difference between FRA's estimate on the costs and 
benefits of the Amended Final rule relative to AAR's estimate as 
stated in its comment on the Petitions is due to both regulatory 
changes being made in the Final Rule Amendments and differences in 
how FRA and AAR formulated the estimates. AAR's estimate in its 
comment on the Petitions is not broken down by specific provision of 
the Final Rule, so within a given cost category FRA's analysis may 
differ for multiple reasons. AAR's estimate does break costs into 
five categories: Additional watchmen needed to comply with the Final 
Rule; train delay; lost productivity; training of maintenance of way 
employees; and job briefings. The largest cost category AAR 
estimates involves the need for additional watchmen/lookouts, which 
AAR estimates will cost approximately $1.4 billion over 20 years at 
a 7 percent discount rate. Under the Amended Final Rule, FRA does 
not believe new watchmen/lookouts will need to be hired (see below 
discussion). FRA's conclusion is based on an analysis of the 
combination of relief granted in the Final Rule Amendments and 
differences between how FRA and AAR understand that railroads will 
comply with the Amended Final Rule's requirements.

------------------------------------------------------------------------
   Estimated cost-benefit
        comparison *                  Costs               Benefits
------------------------------------------------------------------------
FRA's Original Estimate of    $151 Million........  $151 Million.
 20-Year Costs and Benefits
 of the Final Rule.
AAR's Asserted 20-Year Costs  $2.1 Billion........  $64 Million.
 and Benefits of the Final
 Rule as Asserted in
 Comments on Petition for
 Reconsideration.
FRA's Current Estimate of     $22 Million.........  $108 Million.
 the 20-Year Costs and
 Benefits of the Amended
 Final Rule.
------------------------------------------------------------------------
* PV 7-Percent for all figures listed.

    While not required to complete a Regulatory Impact Analysis (RIA) 
in responding to petitions for reconsideration, FRA has done so here, 
in section V.A. of the preamble below. The RIA below addresses the five 
modifications being made to the Final Rule, and the resultant cost-
savings impacts and qualitative benefits of those modifications. The 
RIA for the Final Rule Amendments also takes into account the new value 
of a statistical life (VSL) to be used for DOT analyses assessing the 
benefits of rulemakings.\8\
---------------------------------------------------------------------------

    \8\ Since publication of the Final Rule, the value of a 
statistical life (VSL) to be used for DOT analyses assessing the 
benefits of preventing fatalities has increased to $9.1 million, 
allowing for 1.07 percent annual growth in median real wages in 
future years before discounting to present value. The revised 
benefit analyses for the Amendments and the Amended Final Rule 
utilized this updated VSL. See ``Guidance on Treatment of the 
Economic Value of a Statistical Life in U.S. Department of 
Transportation Analyses''; available online at https://www.dot.gov/regulations/economic-values-used-in-analysis.
---------------------------------------------------------------------------

    Further, FRA has also completed a sensitivity analysis (Special 
Sensitivity Analysis) of the Amended Final Rule that will be posted in 
the public docket for this rulemaking. While also not required to 
complete such a supplementary analysis in responding to petitions for 
reconsideration, FRA has done so here in order to fully inform all 
interested parties of the costs and benefits associated with this 
rulemaking in its entirety (to include the modifications being made by 
the Amendments) after considering all of the information provided in 
the Petitions related to the Final Rule's RIA. The Special Sensitivity 
Analysis addresses the specific cost-benefit related items raised in 
the Petitions and in the comments that are not otherwise addressed by 
the modifications of the Final Rule and the interpretations explained 
below. (See the Special Sensitivity Analysis, the RIA below, and the 
discussion in section III.C. of the preamble below for further 
discussion related to the costs of the ``trailing end'' provision at 
Sec.  214.336(b)(2) and any resultant train delays.)
1. Training Costs
    For purposes of the Special Sensitivity Analysis, FRA has adjusted 
its estimate for the amount of time that it would take to train roadway 
workers on the requirements of this rulemaking. FRA had originally 
estimated that it would take five minutes of additional training for 
roadway workers in year 1, and two minutes of additional training per 
year in subsequent years. AAR's comment asserts that four hours of 
additional training time will be required in year 1, and one hour of 
additional training time per year thereafter. Based on AAR's assertion, 
along with FRA staff experience in teaching the subject matter 
contained in the Final Rule internally, FRA has adjusted its training 
estimate in the Special Sensitivity Analysis to four hours for year 1, 
and to one hour for each year thereafter. This adjustment raised the 
training cost estimate in the Special Sensitivity Analysis from 
$182,271 (when discounted at 7 percent over 20 years) to $12.17 million 
(when discounted at 7 percent over 20 years). The details of this 
calculation may be found in section 2.1 the Special Sensitivity 
Analysis. These costs are not affected by the Amendments, in which FRA 
is removing burdens that it had not included in training cost estimates 
previously.
2. Casualty Estimates and Injury Data
    The AAR/ASLRRA Joint Petition stated that ``the record just does 
not support a finding that there will be benefits in the areas 
addressed by this petition for reconsideration.'' The AAR/ASLRRA Joint 
Petition did not allege that the number of injuries that FRA estimated 
would be prevented by the Final Rule (93.6) over 10 years was too high, 
but AAR's later comment on the Petitions directly challenged the number 
of such injuries. Specifically, AAR estimated that only 13 of 90 total 
injuries that AAR identified in an analysis of non-fatal injuries from 
1999-2008 should be included, resulting in AAR's adjustment of FRA's 
estimate from 9.36 injuries prevented per year to 1.35. AAR claimed 
that reports of the other 77 injuries specified involvement of 
maintenance-of-way equipment or

[[Page 1747]]

construction equipment, or no equipment at all, and that the equipment 
was probably working in the same gangs and probably on the occupied 
track in most cases.
    AAR apparently did not consider an incident in which a roadway 
worker was struck by maintenance-of-way equipment as relevant to this 
rule,\9\ and that view could account for some of the difference between 
the FRA and AAR estimates. However, upon further review of the 
narratives providing more details as to the circumstances and extent of 
the injuries, FRA has determined that its original estimate was too 
high. For purposes of the revised economic analysis in the Special 
Sensitivity Analysis, FRA has used AAR's injury estimate as stated in 
its comment on the Petitions by adjusting it to 1.35 injuries per year. 
However, FRA believes the number of injuries per year could likely be 
increased to 1.62, at a minimum, because 1.62 is the AAR estimate of 
1.35 per year, plus 20 percent. The 20-percent increase is based on 
findings from the original RWP rulemaking in 1996, where FRA found that 
roughly 20 percent of RWP injuries had been incorrectly assigned to 
other cause codes. The reduction in estimated number of injuries would 
reduce the estimated benefit over 20 years by $58,571,993 using a 7-
percent discount factor or $42,717,512 using a 3-percent discount 
factor. This represents a roughly 28-percent decrease in total benefits 
estimated by FRA.
---------------------------------------------------------------------------

    \9\ It appears AAR failed to consider a roadway worker's being 
struck by maintenance-of-way equipment as relevant despite that the 
Final Rule addresses movements of ``other on-track equipment'' on 
adjacent controlled tracks and establishes a 25-foot buffer zone 
between roadway workers and such equipment as a condition for 
permitting certain work to continue on the occupied track during 
low-speed movements on the adjacent-controlled track.
---------------------------------------------------------------------------

    In addition, the AAR/ASLRRA Joint Petition and the AAR comment 
challenged the number of fatalities that FRA estimated would have been 
prevented by the Final Rule. Metro-North, in its comment, offered to 
partner with FRA to perform a safety analysis of the adjacent-track 
scenarios for which it requested relief to demonstrate that the Final 
Rule would not save .6 fatalities annually. (Metro-North's comment did 
not provide a suggested fatality estimate.) AAR's comment argued that 
in four of the seven fatalities discussed in Appendix E to the Final 
Rule's RIA (Appendix E), that a significant level of roadway worker 
protection was already being provided on the adjacent track and that 
the incidents could just as well have occurred under the Final Rule. As 
a result, AAR explained, FRA's estimate of .6 fatalities per year 
should be reduced by 4/7 to .34. Note, however, that AAR apparently 
intended to reduce FRA's estimate by 3/6 to .3, as the first incident 
listed in Appendix E that AAR challenged was not included in FRA's 
estimate of the benefits because it occurred in 1998, and was outside 
of the 10-year data period of 1999-2008. Appendix E included all of the 
relevant adjacent-track fatalities since the original RWP rule went 
into effect in 1997. Since publication of the Final Rule, a roadway 
worker fatality occurred on July 5, 2013, in Chicago, Illinois, when a 
railroad employee was struck by a train passing on an adjacent 
controlled track. That incident remains under investigation by FRA and 
the National Transportation Safety Board.
    Further, FRA stands by including in the estimate of benefits 
incidents number 3 and 5 as listed in Appendix E that AAR's comment 
challenged. Incident number 3 as listed in Appendix E involved a 
surfacing gang with several roadway workers on the ground working in 
common with the on-track self-propelled equipment on the occupied 
track. The fatally injured employee did not have adjacent controlled 
track protection in place at the time of the incident. He was struck 
while fouling the adjacent track. The Final Rule would have required, 
at a minimum, that train approach warning have been provided when the 
train approached on the adjacent track. If the Final Rule's 
requirements had been in effect, the roadway worker in charge would 
have been required to ensure that all roadway workers (including 
himself) were clear of the adjacent controlled track prior to releasing 
foul time authority for a train movement on the adjacent track, and 
then, would also have had to employ train approach warning as the form 
of on-track safety on the adjacent track. When this incident occurred, 
the train was traveling at 45 mph at impact. The Final Rule would have 
required that that the freight train's speed be reduced to 25 mph when 
passing the roadway work group on the occupied track if their work was 
to continue while the train passed. Further, the Final Rule would have 
prohibited any roadway worker from being in the foul of the adjacent 
track or beyond the plane of the rail of the occupied track closest to 
the adjacent controlled track once the train was authorized through the 
working limits or when a warning was provided by a watchman/lookout 
utilizing train approach warning. Observance of the Final Rule's 
requirements would have prevented this fatality.
    Incident number 5 as listed in Appendix E also involved a roadway 
work group (surfacing gang) performing work on the ground on an 
occupied track in common with on-track, self-propelled equipment 
(tamper and regulator). Under the Final Rule, the adjacent controlled 
track (13'6'' track centers) would have required the establishment of 
working limits any time the regulator wing was deployed toward the 
adjacent controlled track, and, at a minimum, that train approach 
warning be used as the method of on-track safety for the adjacent track 
at all other times. Adjacent track protection was not in place at the 
time of the accident. The Final Rule would require that freight train 
speeds be reduced to 25 mph for adjacent track movements where work 
continues on the occupied track. The train in this incident was moving 
on the adjacent track at 50 mph. The roadway worker in charge was 
fouling the adjacent controlled track when struck. Under the Final Rule 
the nearest he or she would have been allowed to be to the occupied 
track was in the gage of the occupied track without breaking the plane 
of the rail closest to the adjacent track that the train was moving on, 
but only then if the freight train's speed had been limited to 25 mph 
(otherwise he or she would have had to cease work and occupy a place of 
safety if the train was authorized to pass at its actual speed of 50 
mph).
    Finally, AAR argued that the fatality in incident number 6 listed 
in Appendix E would not have been prevented by compliance with the 
Final Rule's requirements. FRA disagrees. Again, under the Final Rule's 
requirements, the struck employee would have had to receive train 
approach warning as the train moved toward the struck employee's 
location on the adjacent controlled track after foul time (which had 
been previously been established on the adjacent controlled track) was 
released. Even though FRA disagrees with AAR regarding this fatality 
that occurred on a commuter railroad, in the accompanying Special 
Sensitivity Analysis FRA has not counted this fatality as a benefit of 
the Amended Final Rule. Instead, FRA has only calculated benefits for 
five fatalities that occurred during the 1999-2008 analysis period, as 
FRA focused its analysis on impacts affecting freight operations in 
light of AAR's submissions after publication of the Final Rule.
    AAR's comment argued that some of the requirements of the Final 
Rule are similar to existing requirements that were not followed in 
some of the incidents. As mentioned above,

[[Page 1748]]

however, given the respective speeds of 45 and 50 mph at which the 
trains were passing the roadway work groups at the time incident 
numbers 3 and 5 occurred under the requirements of the Amended Final 
Rule all roadway workers would have had to have previously occupied a 
predetermined place of safety upon notification that a train was being 
permitted through the working limits at a speed of greater than 25 
mph.\10\ As AAR's comment also mentioned, for both incident numbers 3 
and 5, it does not appear there was any form of on-track safety was 
being provided on the adjacent controlled tracks at the time those 
incidents occurred. Further, the procedures for adjacent-track on-track 
safety set forth in the Final Rule are more comprehensive and specific 
(e.g., with regard to where the roadway workers are permitted to be 
located during the time that a train or other on-track equipment is 
authorized to pass the roadway workers' location), and FRA's inclusion 
of these fatalities is supported. In addition, the heightened job 
briefing requirements of the Final Rule will raise awareness of 
adjacent-track movements and the required roadway worker protections 
from such movements.
---------------------------------------------------------------------------

    \10\ Incident number 1 that AAR's comment challenged occurred in 
1998 and was not included in the Final Rule RIA's benefit analysis.
---------------------------------------------------------------------------

3. Miscellaneous Costs
    This section discusses assorted cost items that are not otherwise 
explained below and that the AAR/ASLRRA Joint Petition and AAR's 
comment asserted were missing from the RIA or estimated inaccurately. 
First, the AAR/ASLRRA Joint Petition and the AAR comment discussed the 
potential need for railroads to purchase more trucks in which to 
transport additional roadway workers to work sites. This concern 
appeared to be particularly related to the Final Rule's definition of 
``minor correction'' as that definition excluded welding activities and 
also inadvertently described hand-operated power tools more narrowly 
than FRA had intended. In the Amendments FRA has expanded that 
definition to both include welding and account for additional hand 
operated power tools as explained below; therefore, AAR's cost concern 
has been alleviated. Further, FRA's decision to include rail-bound 
vehicles in the ``hi-rail'' exception per AAR's request further 
addresses this cost concern.
    Second, AAR's comment addressed the number of workdays per year 
(195) that FRA had assumed in the Final Rule for purposes of estimating 
costs, stating that it was a somewhat low, but still reasonable, 
estimate for large productions gangs rather than the smaller gangs that 
the Final Rule would most affect. AAR instead recommended that FRA 
estimate costs using the assumption of 250 workdays per year.
    The number of workdays per year was calculated at the time that FRA 
published the first NPRM in this rulemaking. In the first NPRM, the 
proposed rule text excluded hi-rails without condition. As the ``hi-
rail'' exception was later narrowed during this rule's development, 
FRA's assumption of 195 workdays per year was not adjusted to take into 
account that roadway work groups work more continuously throughout the 
year utilizing hi-rail vehicles only. However, as FRA has made the 
below-described modifications to the Final Rule (e.g., expanding the 
``hi-rail'' exception by modifying the definition of ``minor 
correction'' and including other rail-bound vehicles), FRA believes 
that AAR's concern regarding the number of shifts being used has been 
addressed. After reviewing timetables and tonnage data from two of the 
four largest Class I railroads in light of the different schedules of 
large production gangs and smaller maintenance gangs, FRA believes that 
its original estimate (combined with the modifications made to the 
Final Rule) of 195 workdays per year was actually conservative, and 
that the number of workdays could be adjusted down to 185 days. 
However, for purposes of the Special Sensitivity Analysis, in order to 
be very conservative, FRA has accepted the AAR estimate of 250 workdays 
per year for section gangs and bridge gangs, but has used 180 days per 
year for surfacing gangs. Based on FRA experience, these gangs tend to 
work during a more limited season, and FRA also used actual production 
gang data from a large Class I railroad to help estimate actual shifts.
    Next, the AAR/ASLRRA Joint Petition and AAR's comment both stated 
that the Final Rule would require the hiring of additional watchmen/
lookouts, and that FRA did not account for the costs of hiring those 
new employees. Metro-North's comments expressed concern that four of 
the Final Rule's requirements would necessitate hiring additional 
watchmen/lookouts, and that those costs would outweigh the benefits. 
FRA has largely alleviated those stated cost concerns with the 
modifications made in the Amendments. FRA's modifications to the 
definition of ``minor correction'' and the addition of rail-bound 
vehicles to the ``hi-rail'' exception specifically address three of 
Metro-North's four stated concerns.\11\ FRA does not believe that 
railroads will have to hire additional watchmen/lookouts to comply with 
the Amended Final Rule, as the modifications being made here eliminate 
the need to hire additional watchmen/lookouts for the welding and 
section gangs that the AAR/ASLRRA Joint Petition specifically 
discussed.
---------------------------------------------------------------------------

    \11\ Metro-North's fourth concern regarding the need for 
watchmen/lookouts for roadway workers performing maintenance or 
repair is addressed further below.
---------------------------------------------------------------------------

    Further, the Joint Petition and the AAR comment discussed the need 
to hire additional watchmen/lookouts for small division surfacing 
gangs, and generally to hire more roadway workers to make up for lost 
productivity as a result of the need to stop work and clear the 
occupied track when trains pass the work zone under the Final Rule. 
However, as is further discussed below and in the Special Sensitivity 
Analysis, FRA conducted an analysis of the Amended Final Rule's 
requirements, and has found that stopping work would be more costly 
than slowing freight trains for any likely roadway work groups on an 
adjacent occupied track once the volume of train traffic reaches a 
certain level, especially since stopping work increases the time of 
track occupancy required to perform the maintenance, and the track 
occupancy itself by the roadway work group is the most costly factor 
involved in the analysis.
    With regard to the concern in AAR's comment regarding the need to 
hire additional watchmen/lookouts for small division surfacing gangs, 
FRA notes that in such small division surfacing gangs oftentimes an 
existing member of the roadway work group, such as the roadway worker 
in charge or another roadway maintenance machine operator, is available 
to act as a watchman/lookout when necessary. Further, existing Sec.  
214.335(c) has long required that train approach warning for movements 
on adjacent tracks not included within working limits be provided to 
roadway work groups engaged in large-scale maintenance or construction. 
In addition, on-track safety on an adjacent track is already required 
to be provided if roadway workers have the potential to foul that 
adjacent track. In the instances where watchmen/lookouts are deployed 
under the Final Rule, those watchmen/lookouts are roadway workers who 
will already be performing roadway work along the railroad right of 
way, and FRA is unable to quantify whether there are increased risks 
while performing duties

[[Page 1749]]

as a watchman/lookout versus performing other roadway work duties as 
part of the same roadway work group. Last, the concerns regarding train 
delay and lost productivity that were raised by the AAR/ASLRRA Joint 
Petition and in several comments are addressed by the modifications 
being made to the Final Rule that are addressed in the discussions 
below, and in the Special Sensitivity Analysis.

B. Definition of ``Minor Correction'' (Section 214.336(a)(3) of the 
Final Rule)

    One of the exceptions to the Final Rule's requirement for adjacent-
track on-track safety permits work of a roadway work group to continue 
during times that the roadway work group is exclusively performing work 
activity involving a hi-rail vehicle being used ``for inspection or 
minor correction purposes.'' The Final Rule defined ``minor 
correction'' as ``one or more repairs of a minor nature, including, but 
not limited to, spiking, anchoring, hand tamping, and joint bolt 
replacement that is accomplished with hand tools or handheld pneumatic 
tools only. The term does not include welding, machine spiking, machine 
tamping, or any similarly distracting repair.''
    Both the AAR/ASLRRA Joint Petition and AAR's comment argued that 
the definition of ``minor correction'' should (i) include, not exclude, 
welding (because the welders typically confine their movements to the 
track on which they are working), and (ii) should not be limited to 
handheld pneumatic tools but rather expanded to encompass all hand 
tools, such as gas- and diesel-powered, hydraulic, electric, pneumatic, 
and perhaps others. Metro-North raised similar concerns in its comment. 
AAR's comment asserted that, without these two changes to the Final 
Rule, the industry would incur a year 1 cost of $93 million and in 
subsequent years an annual cost of $82 million. The AAR/ASLRRA Joint 
Petition argued that excluding welding from ``minor correction'' would 
effectively require an extra watchman for (1) welding gangs (because 
railroads never know when an emergency will occur where a thermite weld 
will be necessary) and (2) section gangs using hydraulic tools and 
other powered (i.e., non-pneumatic) hand tools. Further, AAR indicated 
that FRA failed to consider the costs for the additional watchmen/
lookouts required (namely, wage and fringe benefits, the need to 
purchase larger trucks to accommodate an additional person, and new-
hire training to replace employees who become watchmen/lookouts). 
Metro-North and APTA raised similar concerns regarding the added cost 
of additional watchmen/lookouts for welding gangs and section gangs 
using hand tools (Metro-North), and for small maintenance gangs (APTA). 
APTA's comment also mentioned the cost of transporting the additional 
employees to job sites and other associated costs, such as for 
additional training and equipment.
    The BMWED/BRS joint comment did not oppose the recommendation that 
FRA clarify which handheld power tools are permissible for ``minor 
correction'' work, and suggested that FRA expand that term's definition 
to include ``handheld power tools only'' instead of ``handheld 
pneumatic tools only.'' However, the BMWED/BRS joint comment did oppose 
an expansion of the definition of ``minor correction'' to include 
welding, indicating that small and large welding crews very often 
divide up any necessary watchman/lookout duties amongst themselves and 
that where circumstances prevent the use of watchmen/lookouts, another 
form of on-track safety is available for use. The BMWED/BRS joint 
comment also noted that thermite field welding operations are 
particularly dangerous due to the intricacy and complexity of the work, 
noise from the roadway maintenance machines, reduced visibility, and 
the necessity of thermite welders to position themselves both within 
the gage and to the outside rail of an occupied track when performing 
certain steps.
    In response to the Petitions, FRA is modifying the definition of 
``minor correction'' to include both welding and certain uses of all 
handheld, hand-supported or hand-guided power tools (such as hydraulic, 
pneumatic, gas powered, and others). FRA did not intend to limit the 
exception for handheld power tools so narrowly; therefore, FRA has 
removed the word ``pneumatic'' from the definition. With respect to 
welding operations, FRA is classifying welding as a ``minor 
correction'' activity.
    FRA weighed several factors in making the latter decision. First, 
the RSAC consensus language did not include hi-rail related welding 
activities, and in the Final Rule FRA did not specifically assess costs 
for the inclusion of such welding operations. Further, there have been 
no fatalities related to activities that would have been implicated by 
the Final Rule's welding-related requirement. Next, welders often need 
to verify that no trains will be passing on the adjacent controlled 
track before igniting the charge for the weld because the weld could 
fail if a train were to pass by it before it has solidified. This 
verification element that is inherent in the welding process lessens 
the risk that the roadway workers would be struck by a train on an 
adjacent track. Welding is also often performed on the occupied track 
or immediately adjacent to the occupied track with little distraction, 
and, therefore, is not the type of activity intended to be covered by 
this rulemaking. Further, existing part 214 already requires that on-
track safety be established on an adjacent track (typically by the 
welder's helper serving as a watchman/lookout) during the portions of 
the welding task that create a potential to foul the adjacent track. 
See 49 CFR 214.315, 214.335.
    The BMWED/BRS joint comment failed to consider that the Final Rule, 
if unmodified, would have required that on-track safety be established 
on the adjacent controlled track for the duration of the welding task 
(as opposed to the occasional establishment of on-track safety only 
when the potential to foul the adjacent controlled track exists under 
the existing RWP regulation). Again, FRA notes that for any welding 
activities that foul or have the potential to foul an adjacent track, 
that existing part 214 still requires that on-track safety be 
established on that adjacent track.
    AAR estimated that the additional costs of applying the adjacent-
track provisions to welding operations would be $48 million in the 
first year and $37 million annually in subsequent years. FRA had not 
anticipated that the Final Rule would have such an impact on welding, 
and, thus, these costs had not been included in FRA's original economic 
analysis. AAR stated that railroads would have to buy a number of 
trucks (i.e., motor vehicles not capable of moving on railroad track, 
rather than hi-rail vehicles) at $40,000 each to accommodate the 
additional watchmen/lookouts because existing on-track welding trucks 
do not usually include sufficient cab space for one or more additional 
workers. AAR's estimated cost of $40,000 per truck was too low to 
provide hi-rail vehicles for the additional workers. This fact implies 
that the additional roadway workers would gain access to the work area 
by riding in the additional truck and then by walking to the track 
requiring the weld from the nearest available point at which they can 
park the truck. This situation presents additional risks and the 
possibility of additional worker casualties from slipping and tripping 
hazards, limited visibility conditions, exposure to injury from 
traversing an other-than-public access way en route to the place on the 
track requiring welding,

[[Page 1750]]

and from other hazards along the right-of-way.
    In some cases, the watchmen/lookouts would not walk to the work 
area, but rather ride in an on-track welding truck would drop some 
workers near the work area, return to an access point, and pick up the 
remaining workers. The additional time of track occupancy needed to 
pick up, transport, and drop off roadway workers in these scenarios 
would be very costly, because FRA's analysis of the Final Rule 
provisions shows that the greatest cost of occupying track comes from 
the occupancy itself, not from slowing trains on an adjacent track. FRA 
believes that AAR has potentially overstated these cost totals with 
regard to welding activities because in a high percentage of situations 
involving welding, the Final Rule's requirements would not have 
applied. However, FRA does acknowledge that in order to be prepared for 
situations in which the Final Rule's requirements would have applied to 
welding, that significant costs would have been incurred by the 
industry to purchase new hi-rails or trucks to accommodate a third 
roadway worker in certain situations.
    Last, it is not clear from the evidence that FRA currently has that 
the general inclusion of welding operations as within the scope of the 
term ``minor correction'' would reduce injuries from operation on 
adjacent tracks. However, if welding operations were not a ``minor 
correction,'' the evidence is clear that costs could increase 
substantially, and it is likely that new risks could be imposed by the 
fact that additional workers will have to travel to the welding 
worksites.
    FRA's decision to modify the definition of ``minor correction'' to 
include welding operations and to expand the hand tools allowable under 
the definition to include ``hand tools or handheld, hand-supported, or 
hand-guided power tools'' eliminates the concern raised in the AAR/
ASLRRA Joint Petition with regard to the cost of the activities 
excluded from the definition of ``minor correction'' in the Final Rule. 
This modification also addresses the concerns raised by Metro-North and 
APTA regarding the added cost of additional watchmen/lookouts for 
welding gangs and section gangs using hand tools (Metro-North), and for 
small maintenance gangs (APTA). This modification also eliminates 
APTA's concern regarding the cost of transporting the additional 
employees to job sites and regarding other associated costs, such as 
for additional training and equipment.

C. Speed Increase for Passenger Trains and Other Passenger On-Track 
Equipment Passing Roadway Workers on an Adjacent Controlled Track 
(Paragraphs (b) and (c) of Section 214.336 of the Final Rule)

    Under the Final Rule, each roadway worker in a roadway work group 
that is affected by the movement of a train or other on-track equipment 
on an adjacent controlled track at an authorized speed of 25 mph or 
less is permitted to continue his or her on-ground work performed 
exclusively between the rails of the occupied track and outside the 25-
foot zone to the front or rear of any on-track, self-propelled 
equipment or coupled equipment permitted to move on the occupied track. 
However, if the movement on the adjacent controlled track is authorized 
to exceed 25 mph, then the roadway workers on the occupied track must 
cease all on-ground work and occupy a predetermined place of safety, 
and equipment movement on the occupied track must also cease.
    APTA's comments on the NPRM, Petition, and comment on the Petitions 
all requested that FRA raise the Final Rule's 25-mph maximum authorized 
speed for adjacent-controlled-track passenger train movements during 
which roadway workers are allowed to continue to work. APTA noted that 
FRA did not adopt that request in the Final Rule. APTA's comment 
indicated that, while quantifying the cost impacts of the Final Rule, 
to include this 25-mph maximum, is difficult, there is an indirect cost 
related to disruption of scheduled revenue service and loss of 
passenger business due to lack of service reliability. (E.g., TriRail 
experienced an almost 10-percent dip in passenger ridership during a 
construction project in which on-time performance averaged 68 percent.) 
APTA's comment also speculated regarding the impacts on large-scale 
passenger operations, such as at New York City's Penn Station.
    Similarly, LIRR alleged that implementation of the 25-mph maximum 
would lead to train delays, cancellations, and missed connections, due 
to the requirement to reduce to such speed on the adjacent track when 
work is being performed on the occupied track. LIRR indicated that if a 
25-mph maximum speed restriction is put in place in the block between 
the Nassau and Divide towers during the hours between 10 a.m. and 3 
p.m., when work is typically performed, that five eastbound trains and 
six westbound trains (affecting 5,000 to 10,000 riders) would need to 
be canceled. Other customers transferring from those trains would also 
be affected. While no quantified costs have been provided related to 
the above scenarios, LIRR estimated increased yearly costs of $1.4 
million as a result of the Final Rule's requirements, because jobs 
would take longer to complete and might need to be performed on 
weekends and nights, when employee wage rates are higher. Also, 
although not directly alleging that the maximum speed was too low, AAR 
also noted that FRA failed to account for either passenger-train delay 
or freight-train delay for situations where the use of watchmen/
lookouts is not feasible or desirable, indicating that such situations 
shut down both the occupied track and the adjacent track on what are 
usually busy rail lines, and that delays range from ten minutes to an 
hour or more.
    The BMWED/BRS joint comment stated that the 25-mph maximum was a 
consensus agreement and should not be increased. The joint comment also 
stated that the 25-mph maximum speed for both passenger and freight 
trains when passing a roadway work group while work continues on an 
adjacent controlled track provides for uniformity within the Final 
Rule, and does not introduce additional hazards associated with 
conducting/ceasing work on an occupied track based upon different types 
of trains operating under different speed thresholds on the adjacent 
controlled track. The comment also noted that roadway workers in charge 
have the authority to permit the passenger trains through working 
limits at speeds higher than 25 mph (provided roadway workers on the 
occupied track would have to cease work and occupy a place of safety) 
and that it is not at all uncommon for passenger trains to be 
authorized through at speeds substantially over 40 mph.
    After considering the above-listed arguments, FRA is modifying the 
Final Rule by raising to 40 mph the maximum allowable speed for 
adjacent-controlled-track movements by passenger rail traffic while 
roadway workers are permitted to continue their on-ground work on the 
occupied track. FRA considered the following factors when determining 
that granting the petition request regarding the 25-mph maximum speed 
is the appropriate course of action from a safety perspective. First, 
passenger trains are shorter than freight trains and do not present the 
dangers of shifted loads and swinging doors that exist for freight 
trains. Second, unlike much longer freight trains, commuter trains are 
only typically 6 to 8 cars in length, and whether traveling at 40 mph 
or 25 mph, pass within a matter of seconds. Because there is less 
danger of swinging doors and shifted loads, risk

[[Page 1751]]

exposure is much more minimal than when compared to a much longer 
passing freight train. Third, passenger equipment is typically narrower 
than comparable freight train equipment, meaning it is physically 
farther from roadway workers who continue work in the gage of the 
occupied adjacent track while a passenger train passes. Fourth, the 
type of shelf couplers utilized on passenger equipment is designed to 
keep equipment upright and in-line in the event of derailment. Fifth, 
the superior braking capabilities and shorter stopping distances of 
passenger equipment reduce risks while approaching and passing adjacent 
track roadway work zones. Sixth, track-caused train derailments are a 
leading cause of accidents reported to FRA, and if a train were to 
derail on an adjacent controlled track while passing a roadway work 
group work on the occupied track, there are obvious casualty risks to 
the roadway work group. FRA's Track Safety Standards, at 49 CFR part 
213, have long differentiated between the speeds passenger trains and 
freight trains are permitted to travel on the same class of railroad 
track. For example, Sec.  213.9(a) permits freight trains to travel 
only 40 mph over Class 3 track, while allowing passenger trains to 
travel 60 mph. This longstanding distinction permitting increased 
speeds for passenger trains was justified, with no loss in safety, 
generally because suspension systems on passenger trains are designed 
to provide a safer dynamic response than freight trains to the same 
track conditions.\12\ Last, FRA does not have data or analyses to show 
that the higher speed at which commuter trains currently pass work 
zones on an adjacent track is unsafe.
---------------------------------------------------------------------------

    \12\ FRA proposed different speed limits for passenger and 
freight operations in 1972, largely relying on the differences in 
suspension systems used. 37 FR 18398. The rule was adopted as 
proposed in 1973. 38 FR 873.
---------------------------------------------------------------------------

    Further, if the assertions in LIRR's comment are correct and in 
some instances several thousand of LIRR's passengers could be affected 
daily by the Final Rule's 25-mph limitation, FRA believes unintended 
passenger safety issues could occur if the Final Rule's speed 
restriction is not increased for passenger trains. Crowding, on both 
passenger platforms and on passenger trains that results from commuter 
train cancellations and delays, presents the potential for platform 
falls and other obvious risks to passenger safety. These cancellations 
and delays could occur because commuter train ``meet'' times can be 
critical in passenger operations when a missed meet for one train often 
compounds and affects later-scheduled trains. Further, a 25-mph 
limitation for commuter trains could have the unintended impact of 
encouraging passengers to take other modes of transportation, namely 
automobiles. Automobile travel is statistically less safe than 
passenger train travel and is also less fuel efficient. As media 
coverage of the recent May 2013, Metro-North train accident in 
Bridgeport, Connecticut, illustrates, passenger train cancellations can 
raise concerns regarding highway congestion and parking complications 
for commuters who instead choose to travel by automobile. FRA's 
statistics indicate that the average commuter train trip is 24 miles 
long. Last, in granting this request to raise the speed at which 
passenger trains may pass work zones to 40 mph, FRA also avoids giving 
railroads perverse incentive to defer track or signal maintenance 
rather than delay or cancel scheduled passenger trains in complying 
with the Final Rule's requirements. Of course, such deferred 
maintenance can potentially lead to track- or signal-caused train 
derailments and other accidents, thereby endangering railroad operating 
crews and other railroad employees, rail passengers, and the general 
public.
    Finally, the potential cost implications related to passenger-train 
delay/cancellation issues resulting from this provision of the Final 
Rule had not previously been raised with FRA until it was posed by 
APTA's petition for reconsideration. Thus, in figuring the costs of the 
Final Rule, FRA did not consider the train-cancellation issue. The 
train delay implications for commuter operations that LIRR and APTA 
raise were also not fully considered in the analysis. LIRR was the only 
entity to put forth an actual cost figure with regard to the 25 mph 
speed restriction for passenger operations, and FRA does not have 
information to refute LIRR's assertions. FRA estimates that this 
response's amendment to the Final Rule will create cost savings for the 
commuter rail industry to at least the extent estimated by LIRR ($1.4 
million annually). As discussed further in the RIA below, FRA cannot 
simply extrapolate the LIRR case to all other commuter railroads. FRA 
believes that the only other commuter railroad likely to have had 
impacts similar to those on the LIRR was Metro-North. Extrapolated to 
the combination of Metro-North and LIRR based on passenger miles, the 
total cost for the industry would have been $3,152,297 per year. The 
total cost savings resulting from this amendment to the Final Rule is 
$33.4 million (PV, 7) and $46.9 million (PV, 3), when discounted over a 
twenty-year period.
    FRA is, however, retaining the existing maximum of 25 mph for 
adjacent-controlled-track movements of freight trains and other freight 
on-track equipment movements. The AAR/ASLRRA Joint Petition did not 
make a request for the Final Rule's 25 mph speed restriction to be 
increased with respect to freight operations. As mentioned above, when 
freight trains pass works zones on an adjacent track, the safety risk 
of shifted loads is present, as well as the safety risk of swinging 
doors, loose banding, and dragging equipment, and the hazards 
associated with debris, dust, stone, and construction/maintenance 
materials being strewn by freight trains, which tend to be longer and 
much heavier than passenger trains. The discussion in Section III.D. 
directly below also contains a more extensive discussion of some of 
FRA's rationale for retaining the 25-mph speed limit for freight trains 
with regard to any potential cost concerns.

D. The Requirement That Roadway Workers May Resume Work Only After the 
Trailing-End of All Trains or Other On-Track Equipment Movement 
Authorized To Travel Greater Than 25 MPH Has Passed (Paragraph (b) of 
Section 214.336 of the Final Rule)

    The Final Rule provided that roadway workers may resume work only 
after the trailing end of a train or other on-track equipment 
(authorized to travel past the roadway work gang at a speed greater 
than 25 mph) has passed the roadway work group (``trailing end'' 
provision). The original RSAC consensus language did not specify 
whether the trailing end or the leading end of the movement had to pass 
before work could resume, but rather only stated that ``on-ground work 
and equipment movement on the occupied track may resume only after all 
such movements on adjacent track have passed each component of the 
Roadway Work Group(s).'' FRA specified that the trailing end of the 
train must have passed before work resumes because we believed that 
this consensus language meant, and plain language indicated, that the 
entire train movement must have passed before the resumption of work. 
See 73 FR 74598. The ``trailing end'' provision was also adopted, in 
part, due to the concerns raised by BMWED and BRS on this issue, namely 
that there are hazards presented to roadway workers by abnormal consist 
conditions (e.g., ``shifted loads/shifted ladings, loose banding, 
dragging chains/binders, loose

[[Page 1752]]

brake piping, loose/swinging boxcar doors, [and] fragmented brake 
shoes'') and by ``dust, rust, debris, stone, and track construction/
maintenance materials[,]'' which may become airborne while trains on an 
adjacent track pass in close proximity to a roadway work group.
    The AAR/ASLRRA Joint Petition requested that the Final Rule be 
modified to permit roadway workers to resume work after the leading end 
of a train has passed. They cited the following points as support for 
their request: (1) There are no fatalities from shifted loads and no 
widespread problem of employees injured by shifted loads; (2) there are 
many railroad employees working near passing trains, not just roadway 
workers; (3) there is a heightened awareness of the roadway workers 
after the leading end of a train passes; and (4) prohibiting the 
resumption of work until the entire train or equipment has passed would 
adversely affect productivity and require the hiring of additional 
roadway workers. AAR, in its supplemental comments, estimated that this 
amendment to the Final Rule would save the railroads approximately $56 
million annually (based on an estimate for four Class I railroads 
alone). APTA's comment expressed support for the AAR/ASLRRA Joint 
Petition's position with regard to the ``trailing end'' provision. The 
BMWED/BRS joint comment stated that the AAR/ASLRRA Joint Petition 
ignored the risks associated with shifted loads/shifted ladings and the 
hazards associated with materials being kicked up by trains operating 
at track speed.
    FRA is denying the request made in the AAR/ASLRRA Joint Petition. 
FRA notes that when trains pass a roadway work group on an adjacent 
track that injury risks are present, and that this provision also 
serves railroad safety where roadway workers are observing the passing 
of the train for any dragging equipment or any other condition that may 
compromise the safe movement of a train An additional safety rationale 
for FRA retaining the requirements of the ``trailing end'' provision 
relates to increased derailment risks when trains accelerate. As is 
generally understood in the railroad industry from voluminous research, 
there are in-line forces (``buff and draft'' forces) that push and pull 
on the individual railroad cars in a train, resulting in increasing or 
decreasing slack.\13\ Slack is the free movement in each railroad car 
via its coupling equipment and draft gear. Locomotive tractive effort 
applied to accelerate a train's speed is one of these forces acting 
within a train that cause slack action to occur.\14\ Excessive slack 
action forces can result in train separation, cause a rail to turn 
over, or cause a rail car to climb a rail, leading to derailments. 
Thus, while roadway workers continue to work on the occupied track 
while a freight train passes at 25 mph or less (40 mph or less for 
passenger) on an adjacent-controlled track, FRA believes that to permit 
the train to accelerate as soon as the head end of the train has passed 
increases the risk of derailment at the work location, even if the risk 
is normally well managed.
---------------------------------------------------------------------------

    \13\ See, e.g., FRA, Report to the Senate Committee on Commerce, 
Science and Transportation and the House Committee on Transportation 
and Infrastructure; Safe Placement of Train Cars (June 2005).
    \14\ Id.
---------------------------------------------------------------------------

    Further, FRA believes that AAR has overestimated the costs of 
complying with the ``trailing end'' provision by approximately 
$55,741,196.\15\ FRA's analysis has not found cases above a certain 
train traffic volume where stopping work while trains pass at greater 
than 25 mph (or, as amended, greater than 40 mph for passenger trains) 
would be less costly than slowing trains to 25 mph (or 40 mph for 
passenger) for any likely roadway worker work groups on an adjacent 
occupied track. Stopping work increases the time of track occupancy 
required to perform the maintenance. The track occupancy itself by a 
roadway work group is the most costly factor involved in the analysis.
---------------------------------------------------------------------------

    \15\ The costs of the ``trailing end'' provision were estimated 
by subtracting the costs that would exist if trains were permitted 
to accelerate to maximum authorized speed after only the head end of 
the train had passed the work zone, from the costs of the Final 
Rule, as analyzed (where the entire length of a train may only 
travel 25 mph by a work zone such that work on the occupied track 
could continue). This is equivalent to the costs of passing a length 
of track equal to the length of the work zone at 25 mph compared to 
the costs of passing the work zone at maximum authorized track 
speed, from actual speed limits on track segments. This may actually 
overstate costs, because in the absence of the Final Rule, not all 
trains would accelerate to maximum authorized speed (freight train 
tonnage, crossovers, and other common factors often inhibit a 
train's ability to accelerate to maximum authorized speed until a 
train is well past a work zone). The model assumes that trains 
decelerate from maximum authorized speed to 25 mph, and after 
passing the work zone, accelerate back to maximum authorized speed, 
except where congestion would affect the trains' initial or final 
speeds.
---------------------------------------------------------------------------

    To formulate a revised cost-benefit analysis to account for the 
modifications that FRA is making to the Final Rule, and also to study 
thoroughly AAR's assertions regarding the costs associated with the 
Final Rule generally and the ``trailing end'' provision specifically, 
FRA staff conducted a modeling analysis. FRA calculated the delay 
associated with implementing the Amended Final Rule, and also the 
``trailing end'' provision specifically, by simulating train movements. 
Simulated train movements were modeled in accordance with DOT's train 
performance simulator (TPS).\16\ The models that FRA developed were 
detailed and were correlated with actual rail traffic. FRA developed 27 
simulation runs in total (or nine simulations each for low, medium, and 
heavy traffic volumes) over 270 miles of simulated double-track 
railroad. FRA believes that the simulated track used in this modeling 
provided a representative sample of terrain, track geometry, and track 
speed limits, as the infrastructure data was developed from publicly 
available track charts and included changes in elevation, direction, 
and curvature.
---------------------------------------------------------------------------

    \16\ Train Performance Simulator Version 5c, revised March 1988 
by DOT.
---------------------------------------------------------------------------

    The results of the modeling showed that congestion-induced costs 
did not increase when trains slowed to 25 mph to pass a work zone when 
freight train volumes were at or above threshold. FRA found that rail 
lines operating above capacity, with more than 20 minutes of delay per 
train before the trains even reached the roadway work zone, would incur 
minor additional congestion-related costs as a result of this 
rulemaking. At most, these additional congestion-related costs would be 
the result of an additional 1 minute of headway required to traverse 
the roadway work zone occupying the adjacent track. FRA modeling found 
that, on average, the level of congestion needed to incur these minor 
congestion-related costs occurred when freight train volumes exceeded 
34 trains per 24-hour period, or approximately 10 trains per 7-hour 
shift for a roadway work group occupying an adjacent track. FRA 
believes that its assumption of 10 trains per shift as a threshold for 
congestion for purposes of calculating the cost-benefit analysis is 
very conservative. The modeling documents and accompanying results are 
located in the public docket for this rulemaking and are also discussed 
more extensively in the Special Sensitivity Analysis.
    In order to evaluate more fully the costs of the Amended Final Rule 
(along with the ``trailing end'' provision, specifically), FRA then 
applied the results of the modeling analysis to the railroad industry 
as a whole by utilizing the assumptions described more completely in 
the Special Sensitivity Analysis (assumptions governing train speed, 
train length, train weight, work

[[Page 1753]]

stoppage times, etc.). FRA then applied those assumptions to estimated 
roadway worker production gang efforts for a simulated large Class I 
railroad.
    FRA first had to estimate the number of shifts that the Amended 
Final Rule would affect for each of the different types of roadway 
worker groups (section gangs, surfacing gangs, and bridge gangs). For 
this simulated large railroad, FRA estimated three section gangs per 
roadmaster, 138 roadmasters per railroad, 250 shifts per year per gang, 
with 20 percent of those shifts on occupied track with on-track 
equipment subject to the requirements of the Amended Final Rule. FRA 
estimated that the simulated railroad had 18 divisions, with 3 
surfacing gangs per division and each gang working 180 shifts per year, 
with 100 percent of those shifts on occupied track with on-track 
equipment subject to the Amended Final Rule. FRA also estimated 7 
bridge gangs per division, 250 shifts per year per gang, with 40 
percent of those shifts on occupied track with on-track equipment 
subject to the Amended Final Rule.
    FRA then allocated shifts for section gangs, surfacing gangs, and 
bridge gangs to each subdivision in proportion to the subdivision's 
share of total ton-miles. This allocation reflects an assumption that 
maintenance of rail infrastructure needs to be performed in proportion 
to wear and tear on rail infrastructure, which occurs as a direct 
result of train traffic and tonnage. FRA assigned train-delay costs to 
each gang shift based on the number of trains expected to be affected, 
multiplied by the cost of affecting a single train. For production 
gangs and surfacing gangs, FRA assumed that work zones were one mile 
long, while for bridge and section gangs, operating in smaller groups, 
the work zones were estimated to be one-quarter mile long.
    Delay costs \17\ were estimated by subtracting the time it would 
have taken for the train to pass without slowing to pass a roadway work 
group from track speed (or 40 mph, whichever was lower) from the total 
time for a freight train to slow from 40 mph (or track speed, if track 
speed were lower) and pass a work zone, including waiting for the 
trailing end to pass, and the time to accelerate back up to 40 mph or 
track speed. Braking was estimated at \1/6\ mph per second, with a 
total braking time from 40 mph to 25 mph of 90 seconds, based on field 
experience of FRA staff. The calculation for time and distance during 
acceleration from 25 mph to 40 mph (168.91 seconds over 8,194 feet) was 
based on an 8,000-ton train powered by motive power totaling 6,640 
horsepower.\18\
---------------------------------------------------------------------------

    \17\ Delay costs were estimated at $350 per train hour. A recent 
study (Schafer, D.H., Effect of Train Length on Railroad Accidents 
and a Quantitative Analysis of Factors Affecting Broken Rails, M.S. 
Thesis, University of Illinois at Urbana-Champaign, Urbana, IL 
(2006)) found train delay cost to be $213 per hour for freight 
trains; however, FRA has heard that railroads offer higher costs at 
RSAC meetings, and FRA uses a higher figure for purposes of this 
analysis in order to be conservative.
    \18\ FRA assumed that the fuel costs were 20-horsepower per 
gallon per hour, with fuel cost of $3.50 per gallon. This assumption 
is based on locomotive performance data (Railroad Facts and Figures, 
A.A. Krug, available online at https://www.alkrug.vcn.com/rrfacts/fueluse.htm.) The fuel costs were attributed only to the 6,640 
horsepower. In reality this assumption is conservative, because of 
the reduction in fuel usage during braking. FRA estimates the cost 
to slow a train to 25 mph, pass a one-mile-long work zone, including 
trailing end of the train, and then accelerate to 40 mph, would be 
$39.74.
---------------------------------------------------------------------------

    For each category of work gang, for each subdivision, FRA estimated 
the annual cost of the ``trailing end'' provision by multiplying cost 
per affected train for that gang type by the affected trains per shift 
by total shifts per year. FRA totaled those costs for each subdivision 
and then totaled all subdivision costs. The total cost for the large 
simulated Class I railroad created for purposes of this modeling 
analysis was $674,801 for one year.
    FRA then attempted to estimate similar costs for three other 
simulated large Class I railroads by allocating affected gang shifts 
per year to each subdivision based on affected gang shifts per ton-mile 
per year from the first railroad, and otherwise continuing to use the 
same assumptions. This led to a much lower estimate of costs per ton-
mile at the other railroads. The total annual cost estimate ranged from 
$90,758 for the next largest Class I by revenue-ton-miles down to 
$34,114 for the smallest of the four large Class I railroads. These 
values are lower than for the first railroad as the railroads simulated 
had less affected trackage where the Amended Final Rule's requirements 
would apply and were smaller than the largest Class I first simulated, 
which mirrors the state of actual existing Class I railroad hierarchy. 
FRA decided to extrapolate to all Class I freight railroads using the 
proportionate share of revenue-ton-miles. The total annual cost of 
slowing trains as they pass work zones was estimated at $2,192,720. 
This total estimated cost represents the entire cost of slowing trains 
to pass work zones on the occupied track, to include the estimated 
$258,803 cost of the ``trailing'' end provision.
    In the Special Sensitivity Analysis FRA follows an assumption 
employed in the Final Rule's RIA that 70 percent of affected railroad 
operations were in compliance with the requirements of this rulemaking, 
and would continue to be in compliance even in the absence of the 
rulemaking. Thus, after accounting for pre-existing compliance the real 
annual costs will be 30 percent of $2,192,720, or $673,840. After 
accounting for pre-existing compliance, the real annual cost of 
complying with the ``trailing end'' provision will be $77,641, or 30 
percent of $258,803. The costs of the ``trailing end'' provision were 
estimated by comparing the difference between the costs of the Amended 
Final Rule and the costs of the Amended Final Rule were trains 
permitted to accelerate to maximum authorized speed after the head end 
of the train had passed the work zone.
    FRA has no data to estimate costs to Class II or Class III 
railroads; however, FRA believes that the unit costs for those 
railroads are likely to be no greater than those for the lower-cost 
Class I railroads (some smaller railroads have no adjacent controlled 
tracks that are subject to the requirements of the Amended Final Rule). 
FRA has chosen the most conservative assumption, extrapolating the 
costs on a revenue-ton-mile basis from the first Class I railroad 
analyzed. FRA believes this course of action more than makes up for the 
absence of any data from Class II or Class III railroads. Had FRA used 
the methodology that derived lower unit costs, the estimated total cost 
of the Amended Final Rule would have been 67-percent lower than the 
estimate presented in the Special Sensitivity Analysis.
    In sum, FRA believes that the costs of the ``trailing end'' 
provision as asserted by AAR were overestimated. FRA's analysis shows 
that by far the largest cost involved in the analysis is the occupancy 
of the track itself by a roadway work group. Slowing trains to pass a 
roadway work group is a less costly alternative than a roadway work 
group ceasing work to permit a train to pass at a higher speed, as that 
extends the length of time the track is occupied by the roadway work 
group and correspondingly slows all subsequent train traffic. FRA 
believes that the results of the modeling and resultant costs as 
extrapolated on a revenue-ton mile basis show that the Amended Final 
Rule, including its ``trailing end'' provision, is cost-beneficial.

[[Page 1754]]

E. Elimination of Requirement That a Non-Controlled Track Be Treated as 
an Adjacent Controlled Track (Section 214.336(a)(2) of the Final Rule)

    In the Final Rule FRA adopted a requirement that a non-controlled 
track whose track center is spaced 19 feet or less from the occupied 
track be treated as an adjacent controlled track if the occupied track 
has an adjacent controlled track on the other side. This requirement 
was adopted due to concern that confusion could arise by requiring that 
roadway work groups make a determination regarding whether adjacent-
track on-track safety was necessary on a closely-spaced adjacent track 
based only on whether that adjacent track was controlled or not. FRA 
had concern that such confusion could result in incidents involving 
train movements on adjacent non-controlled tracks. FRA also noted this 
approach was consistent with its rationale for adopting the language in 
Sec.  214.336(e)(1)(ii), which imposes conditions on the exception for 
work performed on a side with one or more adjacent tracks only if the 
danger posed by the closest adjacent track (controlled or non-
controlled) on that side had been essentially eliminated.
    The AAR/ASLRRA Joint Petition argued that no accident/incident data 
supports this provision and that the provision itself could cause 
confusion as to why the roadway workers have to treat the non-
controlled track as an adjacent controlled track. APTA's Petition 
expressed the separate concern that the provision would disrupt 
scheduled passenger train operations and, thus, also affect the cost of 
scheduled train operations in a manner that was not contemplated by FRA 
in the Final Rule.
    The BMWED/BRS comment stated that they shared FRA's concern 
regarding the risk of additional confusion and also believed that the 
provision added a level of clarity and uniformity to the Final Rule, 
applied only in very limited circumstances, and ensured that roadway 
workers would not clear into or foul the adjacent non-controlled track 
without protection.
    FRA is deleting this provision from the Final Rule, in part because 
there is no accident data to support it, which was the basis for the 
original RSAC decision not to adopt this provision in its 
recommendation to FRA. FRA has also made this decision because the on-
track safety job briefing required by the Final Rule is intended to 
make clear to roadway workers that no on-track safety is being provided 
on that track, as the job briefing requires a discussion of all 
adjacent tracks regardless of whether they are controlled or non-
controlled. Further, on a non-controlled track, roadway work groups 
have the authority to establish working limits by making a track 
inaccessible on their own, and are not reliant on a control operator or 
dispatcher to do so as they are with controlled tracks. And finally, 
given the limited circumstances under which this provision would apply, 
there is little risk to the roadway workers, especially since Note 1 of 
Table 1 of Sec.  214.336 specifically states that a ``predetermined 
place of safety'' ``may not be on a track, unless the track has working 
limits on it and no movements permitted within such working limits by 
the [roadway worker in charge].'' This same requirement was also 
expressly proposed in FRA's RWP Miscellaneous Revisions NPRM, which was 
published last year. 77 FR 50324. For these reasons, FRA has determined 
that this provision is unnecessary. This decision also makes moot 
APTA's concern stated in its Petition that this provision would have 
adversely affected passenger train schedules.

F. Additional Exception for ``Rail-Bound Vehicles'' Used for Conducting 
Inspections, Minor Corrections, or Welding (Section 214.336(e)(3)(i) of 
the Final Rule)

    The Final Rule, at Sec.  214.336(e)(3)(i), exempted inspections and 
minor correction work involving a hi-rail vehicle from the adjacent-
track on-track safety requirements, but did not similarly expressly 
exempt rail-bound vehicles (not equipped with highway wheels) 
conducting the same inspection or minor correction work. The AAR/ASLRRA 
Joint Petition, along with Metro-North in its comment, requested that 
there be an exception for rail-bound vehicles where manual inspections 
are being conducted. They requested such because they involve the same 
activities as those performed during an inspection conducted by a hi-
rail vehicle, but differentiate between the two based only on whether 
the vehicle from which the inspections are being conducted has highway 
wheels in addition to rail wheels. The Joint Petition also argued that 
the duties clearly would not produce dust or noise.
    The BMWED/BRS joint comment did not oppose extending the exception 
for hi-rail vehicles to rail-bound equipment being used exclusively for 
inspection or minor correction purposes, provided that all of the 
limitations that apply to hi-rail vehicles in Sec.  214.336(e)(3)(i) 
(i.e., limiting the exception to those hi-rails not coupled to one or 
more railroad cars and requiring that the on-track safety job briefing 
include discussion of the nature of the work to determine if on-track 
safety is necessary where multiple hi-rails are engaged in a common 
task) would apply to the rail-bound vehicles.
    FRA is granting the request to create an additional exception for 
rail-bound vehicles being used for inspection or minor correction 
purposes by broadening the ``hi-rail vehicle'' exception to apply to 
on-track, self-propelled equipment (other than an automated inspection 
car or catenary maintenance tower vehicle) being used for inspection or 
minor correction (including welding). FRA already permits visual track 
inspections to be conducted with such equipment under 49 CFR 
213.233(b), and there should be no additional safety risks when the 
equipment is being used for inspection or minor correction purposes, 
especially if the same limitations for hi-rails are applied to this 
exception, as suggested by the BMWED/BRS joint comment. FRA concurs 
with the labor organizations' suggestion and has adopted the same 
limitations as are applied to hi-rails.

G. Expansion of an Exception To Include Roadway Workers Performing 
Maintenance or Repairs Who Are Positioned Within the Perimeter of a 
Machine or Coupled Equipment on the Occupied Track (Section 
214.336(e)(2) of the Final Rule)

    The Final Rule contained an exception to the requirement that on-
track safety be established on an adjacent controlled track when 
maintenance or repairs are being performed while the worker is 
positioned on a side of the occupied track as described in paragraph 
(e)(1)(i), (ii), or (iii) of Sec.  214.336 \19\ alongside a roadway 
maintenance machine or coupled equipment that would prevent a roadway 
worker from fouling the adjacent track on the other side of the 
equipment. FRA adopted that provision in response to BMWED's and BRS' 
concern that work should not be permitted in the foul of the occupied 
track (even if mostly positioned on the side opposite from the train 
movement) unless the machine acted as a physical barrier between the 
roadway worker and the adjacent controlled track on which the movement 
was occurring. FRA

[[Page 1755]]

believed that this exception would permit the changing out of a 
grinding stone on the side of the equipment opposite of that where an 
adjacent track movement was occurring and, in some cases, depending on 
the location of the fuel tank, the fueling of a machine. Under the 
Final Rule such activities would not require that adjacent-controlled- 
track protections be established.
---------------------------------------------------------------------------

    \19\ (I.e., on the side of the occupied track that has no 
adjacent track; on the side with one or more adjacent tracks, the 
closest of which has working limits on it and no movements permitted 
within such working limited by the roadway worker in charge; or on 
the side with one or more adjacent tracks, provided that it has an 
inter-track barrier between the occupied track and the closest 
adjacent track on that side.)
---------------------------------------------------------------------------

    The AAR/ASLRRA Joint Petition argued that the exception as put 
forth in the Final Rule was too narrow and that it should also apply to 
a worker positioned within the perimeter of the equipment on the 
occupied track, without regard to whether the maintenance or repairs 
are performed while positioned on a side of the occupied track as 
described in paragraph (e)(1)(i), (ii), or (iii) of Sec.  214.336. AAR/
ASLRRA argued that a repairman who is working beneath a machine should 
not be forced to extract him or herself each time a train passed on the 
adjacent track in order to go to the predetermined place of safety. 
They argue that this requirement could increase the risk of injury to 
the worker and that a roadway worker working performing repairs under 
the machine is not at risk of being struck by a train on the adjacent 
track. The BMWED/BRS joint comment stated that the term ``perimeter'' 
is too broad and would include those sides of the occupied track that 
do not provide a barrier as contemplated by this section, and that such 
an amendment was undesirable from a safety standpoint.
    After considering the above arguments, FRA is expanding the 
exception to include a roadway worker performing maintenance while 
positioned ``within the perimeter of the machine or equipment'' 
(meaning, while either on or under the body of the machine or coupled 
equipment). To ensure that the term is not too broad in its 
application, the amended rule text explains that any part of the 
roadway worker's person not wholly positioned within the perimeter must 
not break the plane of a rail of the occupied track, unless the part of 
the roadway worker's person is towards one of the above-referenced 
sides of the occupied track. A boom or other equipment extending beyond 
the body of the machine toward the adjacent controlled track is not 
considered to be ``within the perimeter of the machine or coupled 
equipment.'' FRA decided to expand this exception for the following 
three reasons: (1) There have been no adjacent-track-related fatalities 
involving a roadway worker positioned within the perimeter of the 
machine; (2) there is no danger of a roadway worker's fouling an 
adjacent controlled track while he or she is positioned between the 
rails of the occupied track where the equipment would effectively 
prevent the worker from fouling the adjacent controlled track; and (3) 
there would be a risk of injury to the worker from having to extract 
himself or herself from underneath or on top of a machine. FRA had not 
considered the latter risk when formulating the Final Rule.

H. Application of the Final Rule To Repair or Maintenance of Roadway 
Maintenance Machines

    The AAR/ASLRRA Joint Petition and AAR's and Metro-North's comments 
all questioned whether the Final Rule addressed mechanics performing 
maintenance and repair work on roadway maintenance machines. Existing 
Sec.  214.7 defines the term ``roadway worker.'' That term, since its 
inception with the promulgation of the original RWP regulation in 1996, 
has always included employees of a railroad or a contractor to a 
railroad ``whose duties include inspection, construction, maintenance 
or repair of . . . roadway maintenance machinery on or near track or 
with the potential of fouling a track . . . .'' Clearly, such 
maintenance or repair is, and always has been, a roadway worker duty 
covered by the RWP regulation and the on-track safety requirements of 
part 214. This adjacent track provision, from its RSAC consensus 
conception, would have applied to roadway workers on the ground engaged 
in a common task with on-track, self-propelled equipment or coupled 
equipment on an occupied track, and the term would have included such 
employees within such groups performing maintenance or repairs on 
machinery who foul, or have the potential to foul, track. Thus, the 
activities of those roadway workers were clearly intended to be subject 
to the requirements of the RSAC consensus agreement if adopted.
    However, even in light of that point, much of the work performed on 
roadway maintenance machines may be accomplished without the 
requirements of the Amended Final Rule applying to such work. By 
utilizing the exceptions in Sec.  214.336(e), particularly the 
expansion of the exception pertaining to repairs performed alongside 
the machine or equipment to include work performed within the perimeter 
of the machine or equipment (on or under such machine or equipment), 
most maintenance or repair work may be performed without triggering the 
requirements for adjacent-controlled-track protections. The Amended 
Final Rule requires adjacent-controlled-track protection when 
maintenance work is being performed on the side of the equipment 
nearest that adjacent track or if any part of a roadway worker's body 
not wholly positioned within the perimeter of the machine breaks the 
plane of the rail of the occupied track toward the adjacent controlled 
track, unless the part of the roadway worker's person is towards one of 
the above-referenced sides of the occupied track. Further, a lone 
worker mechanic who is not part of a roadway work group, and therefore 
not subject to the requirements of Sec.  214.336, may also be utilized 
to perform work on roadway maintenance machines. During the limited 
circumstances that the maintenance or repair work on a roadway 
maintenance machine falls within the scope of Sec.  214.336, a 
mechanic's helper is permitted to serve as a watchman/lookout, or 
obviously another member of the roadway work gang who is not presently 
performing other duties may serve as a watchman/lookout. (Note that if 
machines are stopped in order to be repaired, there may be several 
members of the roadway work gang available to act as watchmen/
lookouts.)

I. Clarification Regarding Release of Working Limits

    The AAR/ASLRRA Joint Petition stated that the Final Rule was 
ambiguous with regard to whether a roadway worker in charge is 
permitted to release working limits on an adjacent controlled track 
after all members of the roadway work group have acknowledged that they 
are in the clear. The Joint Petition then also suggested that FRA adopt 
rule text expressly stating that working limits may be released on an 
adjacent controlled track to allow for train or on-track equipment 
movements.
    FRA believes that such additional rule text is unnecessary. The 
Final Rule permits working limits to be released on an adjacent 
controlled track in accordance with existing Sec.  214.319(c). That 
provision permits working limits to be released for the operation of 
trains once all roadway workers have occupied a place of safety or have 
been afforded on-track safety through train approach warning; the 
provision applies with regard to releasing working limits on an 
adjacent controlled track in Sec.  214.336. For example, under Sec.  
214.336(b) as promulgated in the Final Rule and the Amended Final Rule, 
if a roadway worker in charge wishes to release working limits on an 
adjacent controlled track in order to permit a train movement on that 
adjacent controlled track, he or she may do so

[[Page 1756]]

after notifying all roadway workers in the group and after all workers 
having occupied a place of safety, or, after notifying the roadway work 
gang that working limits are being released, that train approach 
warning will now be the method of on-track safety on the adjacent 
controlled track. A train may then travel past the roadway work group 
on the adjacent controlled track, with the train's authorized speed 
dictating whether work is permitted to continue within the rails of the 
occupied track (maximum authorized speed of 25 mph or less for trains 
or on-track equipment, or 40 mph or less for passenger trains), or 
whether the roadway workers must cease work and occupy a place of 
safety after having received train approach warning (maximum authorized 
speed of greater than 25 mph for trains or other on-track equipment or 
greater than 40 mph for passenger trains).

IV. Section-By-Section Analysis

Section 214.336 On-Track Safety Procedures for Certain Roadway Work 
Groups and Adjacent Tracks

    For the reasons described in Section III above, FRA is making 
several changes to Sec.  214.336 of the Final Rule. First, FRA is 
amending the heading of Sec.  214.336(a)(2) to address only a single 
circumstance arising in territories with at least three tracks to 
account for situations if the occupied track is between two adjacent 
controlled tracks. This change is being made because, as discussed 
above, FRA is removing the requirement that a non-controlled track 
spaced 19 feet or less from an occupied track be treated as an adjacent 
controlled track. Accordingly, FRA is also deleting Sec.  
214.336(a)(2)(ii), which contained the requirement to treat a non-
controlled track as a controlled track in certain circumstances. FRA is 
also amending Sec.  214.336(a)(2) to reference that FRA has raised the 
maximum authorized speed at which passenger trains or other passenger 
on-track equipment may pass a roadway work group while roadway work 
continues within the gage of the occupied track from 25 mph to 40 mph.
    Third, FRA is deleting the second sentence of the definition of 
``adjacent controlled track'' in Sec.  214.336(a)(3). This amendment is 
also to implement FRA's decision to delete the Final Rule's requirement 
in Sec.  214.336(a)(2) that if an occupied track has an adjacent 
controlled track on one side and a non-controlled track spaced 19 feet 
or less from an occupied track on the other side that both tracks must 
be treated as adjacent controlled tracks.
    Fourth, FRA is amending the first sentence of the definition of 
``minor correction'' in Sec.  214.336(a)(3) by adding the word 
``welding'' and replacing the words ``handheld pneumatic tools only'' 
with ``handheld, hand-supported, or hand-guided power tools[,]'' 
because FRA is including both welding and additional types of power 
tools within this definition. FRA is also amending the second sentence 
of that definition by deleting the word ``welding[,]'' because the 
second sentence lists exclusions from the term ``minor correction'' and 
FRA has decided to include welding explicitly as an example of ``minor 
correction.''
    Fifth, FRA is adding the words ``or at a speed greater than 40 mph 
for a passenger train or other passenger on-track equipment movement'' 
to paragraph (b). As explained above, this amendment is to reflect that 
FRA has decided to raise to 40 mph the maximum speed at which passenger 
trains may pass a roadway work group without the roadway work group's 
having to cease work and occupy a place of safety. FRA has also amended 
the heading of paragraph (b) to implement this decision to raise the 
maximum allowable speed for passenger trains to 40 mph for purposes of 
the requirements of this paragraph.
    Sixth, FRA is adding the words ``or at a speed of 40 mph or less 
for a passenger train or other passenger on-track equipment movement'' 
to paragraph (c). As explained above, this amendment is to reflect that 
FRA has decided to raise to 40 mph the maximum speed at which passenger 
trains may pass a roadway work group without the roadway work group's 
having to cease work and occupy a place of safety, but rather while the 
group continues on-ground work and equipment movement within the gage 
of the occupied track. To reflect this change to the text of paragraph 
(c), FRA has also amended the heading of the paragraph.
    Next, FRA is amending the heading of Sec.  214.336(e)(2) to 
implement the decision to include maintenance or repairs performed 
within the perimeter of a roadway maintenance machine or coupled 
equipment on the occupied track within an exception to the adjacent-
controlled-track on-track safety requirements. FRA has redesignated 
what was existing paragraph (e)(2) as (e)(2)(i). This redesignation is 
to carry out FRA's decision discussed above to add a new provision 
(Sec.  214.336(e)(2)(ii)) to this paragraph regarding the additional 
exception for maintenance or repair performed within the perimeter of a 
roadway maintenance machine or coupled equipment. This new provision 
states that a roadway worker performing maintenance or repairs under 
Sec.  214.336(e)(2)(ii) is not considered to be within the perimeter of 
the roadway maintenance machine or coupled equipment if any part of his 
or her person breaks the plane of the rail of the occupied track, 
except toward one of the sides referenced in Sec.  214.336(e)(1)(i)-
(iii). Booms or other equipment extending beyond the body of a roadway 
maintenance machine or coupled equipment toward an adjacent controlled 
track are not considered to be with the perimeter of the machine or 
coupled equipment.
    Last, FRA is amending the first and second sentences of Sec.  
214.336(e)(3)(i) to reference rail-bound vehicles. This change is to 
follow through on FRA's decision to add rail-bound vehicles to the 
``hi-rail'' exception of this section.

Table 1 in Section 214.336 of the Final Rule

    FRA is amending the multiple references to the 25-mph maximum 
authorized speed for adjacent-controlled-track movements above which 
roadway workers on the occupied track must cease work and occupy a 
place of safety to add references to the higher maximum authorized 
speed for passenger trains of 40 mph. These changes are to reflect 
FRA's decision to raise the maximum authorized speed at which passenger 
trains may pass the roadway work on an adjacent controlled track to 40 
mph such that the roadway work group may continue to work on the 
occupied track, as is discussed above.
    FRA has also amended the second sentence of footnote 2 of the table 
to reference Sec.  214.336(a)(2) rather than Sec.  214.336(a)(2)(i). 
Due to the decision to delete Sec.  214.336(a)(2)(ii) from the Final 
Rule, the former Sec.  214.336(a)(2)(i) now forms paragraph (a)(2) in 
its entirety. FRA has also amended footnote 3 of the table in order to 
reflect that another exception has been included in the Amended Final 
Rule for maintenance or repair work performed within the perimeter of a 
roadway maintenance machine or coupled equipment on the occupied track.

Figure 1 in Section 214.336

    FRA is amending Examples 1, 2, 3, 4, and 6 of Figure 1 to reflect 
that the Amended Final Rule raises the maximum authorized speed at 
which passenger trains and other passenger on-track equipment may are 
authorized to pass a roadway work group on an adjacent controlled track 
to 40 mph such that the roadway work group may

[[Page 1757]]

continue to work on the occupied track, as is discussed in detail 
above.

Appendix A to Part 214

    FRA is revising appendix A to assure that the existing entries for 
Sec.  214.315(b)-(e) remain in the table, as they would have been 
inadvertently deleted because of incorrect Federal Register publication 
signals if the Final Rule had gone into effect.
    FRA is also deleting the reference in appendix A to the guideline 
civil penalty for Sec.  214.336(a)(2)(ii), and is redesignating the 
reference to Sec.  214.336(a)(2)(i) in the civil penalty to Sec.  
214.336(a)(2). This change is necessary because, as discussed above, 
FRA is deleting Sec.  214.336(a)(2)(ii) from the regulatory text after 
deciding to eliminate the requirement that a non-controlled track 
spaced 19 feet or less from an occupied track be treated as an adjacent 
controlled track. FRA is also amending the guideline civil penalty 
entries for Sec.  214.336(a) and (c) to implement FRA's decision to 
raise to 40 mph the speed at which a distinction is made for passenger 
train movements and other passenger on-track equipment movements on 
adjacent controlled tracks.
    FRA is also amending a reference in footnote 1 to the appendix A, 
Schedule of Civil Penalties, to account for the inflation adjustment to 
the aggravated maximum civil penalty for a violation of an FRA safety 
regulation or order, or of a Federal railroad safety law. In a final 
rule published April 24, 2012 (77 FR 24415), FRA raised upward the 
maximum aggravated civil penalty from $100,000 to $105,000. FRA is 
amending footnote 1 to reflect that final rule's adjustment, which 
would be reversed if the Final Rule went into effect without this 
additional amendment. FRA is also amending the second sentence of 
footnote 1 to refer to the particular regulatory ``provision(s)'' 
rather than the ``section(s)''.

V. Regulatory Impact and Notices

A. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    The Final Rule Amendments have been evaluated in accordance with 
Executive Orders 12866 and 13563, and in accordance with existing DOT 
policies and procedures. See 44 FR 11034 (Feb. 26, 1979); 76 FR 3821 
(Jan. 21, 2011); DOT Order 2100.5 (May 22, 1980). This regulatory 
action has been determined to be significant under Executive Orders 
12866 and DOT policies and procedures. What follows is FRA's Regulatory 
Impact Analysis (RIA) addressing the economic impacts of the 
Amendments. The analysis presented here includes quantitative 
measurements and qualitative discussions of reductions in 
implementation costs and safety impacts resulting from amendments to 
the Final Rule made by FRA in response to the Petitions.
    The modifications being made in the Amendments all reduce burdens, 
or potential burdens, of the Final Rule. Thus, the benefits result from 
reduced regulatory costs. In the same way, the costs associated with 
each amendment, if any, would result from foregone risk reduction. FRA 
is granting requests contained in the petitions for reconsideration by:
     Expanding the definition of ``minor correction'' to 
include welding and certain uses of any handheld power tools;
     Increasing the maximum authorized speed at which passenger 
trains may move on an adjacent controlled track to 40 mph while roadway 
workers continue their on-ground work on the occupied track;
     Deleting the requirement that a non-controlled track whose 
track center is spaced 19 feet or less from the occupied track be 
treated as an adjacent controlled track;
     Exempting rail-bound vehicles (on-track vehicles not 
equipped with highway wheels) used for conducting inspections or 
performing minor correction work (including welding), while applying 
the same limitations that apply to hi-rail vehicles;
     Expanding the exception pertaining to repairs performed 
alongside the roadway work machine or equipment to include work within 
the perimeter of the machine or equipment.
    In analyzing the modifications listed above that are being made to 
the Final Rule, FRA has applied updated DOT guidance on the economic 
value of a statistical life (VSL) that was issued in March 2013.\20\ 
This updated guidance increased the VSL from $6.2 million to $9.1 
million, and revised the guidance used to compute benefits based on 
injury and fatality avoidance in each year of the analysis based on 
forecasts from the Congressional Budget Office of a 1.07 percent annual 
growth rate in median real wages over the next 30 years (2013-2043). 
FRA also adjusted wage-based labor costs in each year of the analysis 
accordingly. Real wages represent the purchasing power of nominal 
wages. Non-wage inputs are not impacted. All monetary references are in 
2012 dollars, unless noted otherwise. The Final Rule's prior analyses 
had used 2009 dollars. However, in order to incorporate this latest 
guidance, FRA has evaluated the Amendments in 2012 constant dollars. 
This analysis, with different wage levels and VSL depending on year, 
uses 2014 as the first year that the requirements of the Amendments 
will be effective.
---------------------------------------------------------------------------

    \20\ See ``Guidance on Treatment of the Economic Value of a 
Statistical Life in U.S. Department of Transportation Analyses'', 
available online at https://www.dot.gov/regulations/economic-values-used-in-analysis.
---------------------------------------------------------------------------

    The table below summarizes the potential cost savings that will 
result from FRA's above-listed Amendments in response to the Petitions, 
as well as potential cost implications resulting from forgone risk 
reduction. The costs and benefits have been evaluated over a 20-year 
period using discount rates of 7 percent and 3 percent. For the 20-year 
period analyzed, the estimated costs that will be imposed on the 
industry are negligible. For the same 20-year period, the estimated 
quantified benefits total $643 million, with a PV (7 percent) of 
approximately $341.6 million and a PV (3 percent) of approximately 
$478.4 million:

----------------------------------------------------------------------------------------------------------------
                                            Potential cost        Benefits: Estimated      Benefits: Estimated
     Amendments to the final rule            implications        cost savings  (PV, 7%)   cost savings  (PV, 3%)
----------------------------------------------------------------------------------------------------------------
Expanding the definition of ``minor    Negligible. Very small   $158.9 Million \21\....  $223.2 Million.
 correction'' to include welding and    increase in risk. No
 certain uses of any handheld power     quantifiable increases
 tools.                                 in casualties.

[[Page 1758]]

 
Increasing the maximum authorized      Negligible.............  $33.4 Million \22\.....  $46.9 Million.
 speed at which passenger trains may                            This estimated benefit   This estimated benefit
 move on an adjacent controlled track                            only considers cost      only considers cost
 to 40 mph while roadway workers                                 savings for LIRR and     savings for LIRR and
 continue their on-ground work on the                            Metro-North.             Metro-North.
 occupied track.
Deleting the requirement that a non-   None: FRA has no record  $8,000 \23\............  $11,200.
 controlled track whose track center    of past casualties
 is spaced 19 feet or less from the     covered by this
 occupied track be treated as an        provision.
 adjacent controlled track.
Exempting rail-bound vehicles (on-     N/A....................  N/A....................  N/A.
 track vehicles not equipped with
 highway wheels) used for conducting
 inspections, performing minor
 correction work (including welding),
 while applying the same limitations
 that apply to hi-rail vehicles.
Expanding the exception pertaining to  Negligible. Minor        $149.2 Million \24\....  $208.3 Million.
 repairs performed alongside the        reduction in the        Non-quantified benefits  Non-quantified benefits
 roadway work machine or equipment to   safety benefit of        include lowered injury   include lowered injury
 include work within the perimeter of   workers extricating      risks due to less        risks due to less
 the machine or equipment.              themselves from under    instances of workers     instances of workers
                                        machinery so as to be    having to extract        having to extract
                                        safe in the event a      themselves from a        themselves from a
                                        collision with the       machine each time a      machine each time a
                                        machinery.               train passes.            train passes.
                                      --------------------------------------------------------------------------
    Total............................  .......................  $341.6 Million.........  $478.4 Million.
----------------------------------------------------------------------------------------------------------------
All values are discounted (PV, 7 and 3%) for a 20-year period.

Petition Requests Granted and Associated Cost Savings Estimates
---------------------------------------------------------------------------

    \21\ From FRA staff estimate.
    \22\ Extrapolated from LIRR estimate in proportion to passenger 
miles.
    \23\ From FRA staff estimate.
    \24\ The cost savings estimate is based on an annual $14 million 
in costs from AAR's comment on the Petitions. FRA believes that the 
Amendments will avoid these costs that AAR's comment raised.
---------------------------------------------------------------------------

1. Definition of ``Minor Correction''

    FRA's response expands the definition of ``minor correction'' work 
to avoid the Final Rule's requirements applying to roadway work gangs 
using handheld power tools or engaged in welding activities. The 
Railroad Safety Advisory Committee's (RSAC) Roadway Worker Protection 
(RWP) Working Group's consensus agreement did not include a definition 
of ``minor correction'', as the consensus language excluded hi-rail 
vehicle activities from the adjacent track on-track safety requirements 
(except if coupled to railroad cars). FRA added the ``minor 
correction'' definition to the Final Rule to expand the consensus 
language and include specific hi-rail activities within the final 
rule's on-track safety requirements. FRA's response expands the 
definition of ``minor correction'' because in the Final Rule: (a) FRA 
inadvertently excluded certain handheld power tools from the minor 
correction work exception; and (b) FRA did not realize that the 
inclusion of welding activities could impose such substantial potential 
cost burdens. Thus, the Final Rule did not specifically assess costs 
for either of these items. However, in its comment on the Petitions, 
AAR's cost estimate for the additional watchmen/lookouts, new 
employees, and trucks (for three-person welding crews) related to these 
two items were $144 million in the first year and $127 million per year 
in subsequent years. APTA also estimated that the Final Rule generally 
would cost commuter railroads $22 million per year. AAR stated that it 
arrived at its estimated costs by drawing on track maintenance costs 
data from the four largest Class I freight railroads and from a large 
commuter railroad, but did not break those costs down by individual 
railroad. Instead, AAR provided overall cost estimates for each item 
that FRA's Regulatory Impact Analysis (RIA) analyzing the Final Rule 
addressed, while adding in additional cost estimates that it stated FRA 
did not consider (costs related to the hiring and training of 
additional roadway workers, new trucks, and train delays). FRA's 
modification of the definition will remove these potential costs 
estimated by AAR that were created by the Final Rule.
    FRA inadvertently described the type of hand tool use that would 
have been exempted from the Final Rule's requirement, which would have 
had the unintended effect of narrowing the type of work that was 
excluded from the Final Rule's requirements. FRA's response amending 
the description of hand tools will clarify the agency's intent and 
resolve that issue. With regard to the decision to grant AAR's request 
to also exclude hi-rail related welding activities from the Final 
Rule's requirements, FRA weighed several factors in making its 
decision. As stated above, the RSAC consensus language did not include 
hi-rail related welding activities. Other factors include that there 
have been no fatalities related to activities that would have been 
implicated by the Final Rule's welding requirement and also because FRA 
did not realize certain of the additional welding-related costs that 
would have to be incurred by railroads (the purchase of new hi-rail 
trucks, the number of additional situations in which the final rule 
could apply, etc.).
    However, FRA also believes that APTA's and AAR's cost estimates 
with regard to welding were overstated. No watchmen/lookouts would have 
been required for any welding activities involving the occupancy of a 
controlled track in single-track territory. Further, the Final Rule 
would not have applied to welding operations where no on-track 
equipment occupied a controlled track, or where no welding operations 
were being performed in connection with another roadway work group's 
work. Further, any welding operations taking place where the roadway 
work group would have the potential to foul an adjacent track for any 
reason are already required to establish on-track safety on that 
adjacent track under the existing RWP regulations, even in the absence 
of the Final Rule's requirements. FRA

[[Page 1759]]

believes that many existing railroad hi-rail trucks could have 
accommodated (or could have been modified to accommodate) an additional 
roadway worker for purposes of traveling to a welding worksite. 
Finally, a significant percentage of welding worksites are accessible 
via railroad right-of-way, which negates the need for newly purchased 
or modified hi-rail trucks to accommodate an additional roadway worker. 
FRA believes that these factors could have eliminated a high percentage 
of the welding costs claimed by AAR prior to FRA granting this request. 
FRA does acknowledge, however, that in order to be prepared for 
situations in which the Final Rule's requirements would have applied to 
welding operations, that significant costs likely would have been 
incurred by the industry to purchase larger new hi-rail trucks to 
accommodate a third roadway worker in certain situations.
    The foregone benefits that would have resulted from the previous, 
narrower, definition of minor corrective work appear to be small. FRA 
is not aware of any accidental injuries in the ten year statistical 
period reviewed for the Final Rule in which the expanded definition of 
minor corrective work would have applied to the work performed, but the 
previous definition would not have applied to the work. This does not 
mean that there is no risk from such work. It only means that if 
reporting is accurate and past experience is a good basis from which to 
estimate risk, then the risk is small, with an expected value less than 
the cost of one injury every ten years.
    It appears to FRA that expanding the definition of minor corrective 
work will produce benefits by reducing costs, although it is unlikely 
that the benefits will be within an order of magnitude of the cost 
reductions that AAR claims would occur, $93 million in the first year 
and $82 million in subsequent years. FRA has roughly estimated those 
costs to be between $15-30 million per year. For purposes of 
calculating the total cost savings for this amendment, FRA used the low 
end of the range, i.e., $15 million per year. The total cost savings 
over 20 years is $300 million. The discounted value of this cost is 
$158.9 million (PV, 7) and $223.2 million (PV, 3).
    On the other hand, it does not appear to FRA, based on reported 
injuries and fatalities, that the benefits foregone, which are the 
costs of expanding the definition of minor corrective work, would be 
within an order of magnitude of the benefits of expanding the 
definition of minor corrective work. Overall, FRA concludes that the 
cost burden reduction benefit would exceed the very small increase in 
risk resulting from this particular amendment.

2. Speed Limit Increase to 40 MPH for Passenger Trains

    The Final Rule Amendments increase the maximum authorized speed at 
which passenger trains may move on an adjacent track to 40 mph while 
roadway workers continue their on-ground work on the occupied adjacent 
track. This change is being made due to unanticipated costs that the 
Final Rule's 25-mph limitation could have potentially imposed on the 
commuter railroads. Further, FRA's information indicates that 40 mph is 
already largely the speed at which commuter trains pass roadway work 
zones on adjacent controlled tracks, and FRA has no data or analyses to 
show that this current 40 mph speed is unsafe.
    APTA's petition for reconsideration requested this speed increase 
to 40 mph. A review of the public record for the RWP Working Group 
meeting where the 25-mph speed was agreed upon indicates that that no 
APTA representative was present at that meeting, though APTA apparently 
did have a representative present at the full RSAC meeting where the 
consensus language was approved after the conclusion of the RWP Working 
Group's work. However, APTA's comment on the NPRM, its Petition, and 
its comment on the Petitions all requested that FRA increase the speed 
to 40 mph for passenger trains. FRA notes that APTA did not provide 
data or economic analysis regarding those requests to raise the speed 
limit for passenger trains. APTA member LIRR also stated in its comment 
on the Petitions that the imposition of a 25-mph work zone speed limit 
(versus a 40-mph work zone speed limit that would permit work on an 
adjacent track to continue) would cost them $1.4 million dollars per 
year, and would lead to train delays and cancellations potentially 
impacting thousands of passengers per day when roadway work projects 
were being performed. APTA's comment on the Petitions raised the 
general concern of costs related to disruption of scheduled passenger 
service and loss of passenger train business, specifically citing the 
example of a dip in ridership during a South Florida Regional 
Transportation Authority (TriRail) construction project. APTA's comment 
also speculated regarding the final rule's impacts on large passenger 
operations, such as at New York City's Penn Station.
    From a safety perspective in choosing to grant this request, 
passenger trains are shorter than freight trains and also do not 
present the dangers of shifted loads and swinging doors that freight 
trains do. In addition, the superior braking capabilities and shorter 
stopping distances of passenger equipment could reduce risk while 
approaching and passing adjacent track roadway work zones. Next, shelf 
couplers on passenger equipment are designed to keep equipment upright 
and in-line in the event of derailment. Passenger equipment is also 
typically narrower than comparable freight train equipment, meaning it 
is physically farther from roadway workers who continue work in the 
gage of the occupied adjacent track while a passenger train passes. 
Further, unlike much longer freight trains, passenger trains are only 
typically 6 to 8 cars in length, and whether traveling at 40 mph or 25 
mph, pass within a matter of seconds. Because there is less danger of 
swinging doors and shifted loads, risk exposure is much more minimal 
than when compared to a much longer passing freight train. As also 
stated above, FRA does not have data or analyses to show that the 40-
mph speed at which commuter trains largely pass work zones on an 
adjacent track presently is unsafe.
    Next, if the assertions in LIRR's comment are correct and in some 
instances on LIRR several thousand passengers could be affected daily 
by the Final Rule's 25-mph limitation, FRA believes unintended 
passenger safety issues could occur if the Final Rule's speed 
restriction is not increased for passenger trains. Crowding on both 
passenger platforms and on passenger trains that results from commuter 
train cancellations and delays present platform fall and other obvious 
risks to passenger safety. These cancellations and delays could occur 
because commuter train ``meet'' times, particularly when tracks merge 
from different subdivisions of a railroad, can be critical in passenger 
operations when a missed meet for one train compounds and affects 
later-scheduled trains. Further, a 25-mph limitation for commuter 
trains could have the unintended impact of driving passengers to other 
modes of transportation, namely automobiles. Automobile travel is 
statistically less safe than passenger train travel and is also less 
fuel efficient, which is undesirable from both a safety and emissions 
standpoint. Last, in granting this request to raise the speed at which 
passenger trains may pass work zones to 40 mph, FRA avoids giving 
railroads perverse incentives to defer track or signal maintenance 
rather than delay or cancel scheduled passenger trains in

[[Page 1760]]

complying with the Amended Final Rule's requirements. Of course, such 
deferred maintenance can potentially lead to track- or signal-caused 
train derailments and other accidents, thereby endangering railroad 
operating crews and other railroad employees, rail passengers, and the 
general public.
    The potential cost implications related to passenger train delay/
cancellation issues resulting from this provision of the Final Rule had 
not previously been raised with FRA until APTA's Petition discussed 
such. Thus, in estimating the costs of the Final Rule, FRA did not 
consider the train cancellation issue. The train delay implications for 
commuter operations that LIRR and APTA raise were also not fully 
considered in the analysis. LIRR was the only entity to put forth an 
actual cost figure with regard to the 25-mph speed restriction for 
passenger operations, and FRA does not have information to verify or 
refute LIRR's assertions.
    LIRR stated that the imposition of a 25-mph work zone speed limit 
(versus a 40-mph work zone speed limit that would permit work on an 
adjacent track to continue) would cost them $1.4 million dollars per 
year. FRA cannot simply extrapolate the LIRR case to all other commuter 
railroads. The LIRR runs a busy schedule, even on weekends, and unlike 
many other railroads the LIRR has one main line carrying the bulk of 
its traffic, which then branches out. Most other large commuter 
operations branch out relatively close to their downtown terminals. 
Further, most commuter operations have few, if any, trains operating 
between rush hours. FRA believes that the only other commuter railroad 
likely to have had impacts similar to those on the LIRR was Metro-
North. Extrapolated to the combination of Metro-North and LIRR based on 
passenger miles, as reported by APTA in its 2013 yearbook (which 
contains 2011 data) the total cost for the industry would have been 
$3,152,297 per year.\25\ The total cost savings resulting from this 
amendment to the Final Rule over 20 years is $63 million. The 
discounted value of this cost is $33.4 million (PV, 7) and $46.9 
million (PV, 3).
---------------------------------------------------------------------------

    \25\ According to APTA's 2013 fact book, in 2011 LIRR had 
2,087,848,900 passenger miles, and Metro-North had 2,613,236,500 
passenger miles, for a total of 4,701,085,400 passenger miles. 
Dividing 4,701,085,400 by 2,087,848,900 yields 2.251640624. 
Multiplying $1.4 million by 2.251640624 yields $3,152,297.
---------------------------------------------------------------------------

    There would be additional costs avoided by the displaced riders who 
would have had to find alternate transportation or forego the benefits 
of their intended trips. As mentioned above, alternate transportation 
may expose passengers to additional safety costs, as well.
    FRA analyzed whether there might be foregone safety benefits as a 
result of the amendment. There was one relevant fatality analyzed for 
the Final Rule on a commuter railroad. The train in that case was 
traveling at 45 mph, in excess of 40 mph, but FRA does not believe that 
the reduction in speed to 25 mph by itself would have been sufficient 
to prevent the fatality. Had the Final Rule or the Amended Final Rule 
been in effect at the time of that accident, the roadway worker would 
have benefited from, at a minimum, train approach warning being the 
method of on-track safety on the adjacent controlled track. The speed 
of the train was not what would have prevented the accident; rather it 
would have been the combination of the Final Rule's job briefing 
requirements and train approach warning. Thus, FRA believes that the 
potential safety costs of this modification are negligible.

3. Deletion of Requirement That Non-Controlled Track Be Treated as an 
Adjacent Controlled Track

    FRA's response deletes the requirement that a non-controlled track 
whose track center is spaced 19 feet or less from the occupied track be 
treated as an adjacent controlled track. This requirement in the Final 
Rule was not an RSAC consensus agreement, but rather was added into the 
Final Rule by FRA in response to a comment on the NPRM. The AAR/ASLRR 
Petition noted that the Final Rule's provision requiring that roadway 
work groups treat a non-controlled track as an adjacent-controlled 
track could cause confusion. APTA's Petition expressed the separate 
concern that the provision would disrupt scheduled passenger train 
operations and, thus, also affect the cost of scheduled train 
operations in a manner which was not contemplated by FRA in the Final 
Rule. FRA believes that non-controlled tracks may have accounted for 
equivalent to 1-2 percent of the total siding track mileage that would 
have been affected by the Final Rule. Based on this small percentage of 
total track mileage affected, FRA roughly estimates that removing non-
controlled track from the coverage of this rule would reduce the delay 
costs of slowing trains by a minimum of roughly $750 per year. The 
total discounted cost savings over a 20-year period is $8,000 (PV, 7) 
and $11,200 (PV, 3).\26\ FRA has no record of injuries or fatalities 
involving roadway workers on an occupied track that also involved train 
operations on an adjacent non-controlled track. Given the limited 
circumstances under which this requirement would have applied, there is 
little risk to the roadway workers by excluding it. FRA no longer has 
any reason, quantifiable or otherwise, to believe that the benefits of 
this Final Rule provision exceed its costs.
---------------------------------------------------------------------------

    \26\ FRA estimated this cost savings based on the figure of 1-2 
percent of all siding track mileage affected and applying 1 percent 
of the total estimated on-track safety (Sec.  214.336) costs of this 
rulemaking. The APTA Petition asserted this provision (if not 
amended by FRA) would cause passenger train operation disruptions. 
However, FRA does not have data to be able to quantify APTA's 
assertion regarding resultant large cost savings as a result of this 
amendment.
---------------------------------------------------------------------------

4. Exemption for Rail-Bound Vehicles Used for Conducting Inspections or 
Performing Minor Correction Work

    The Final Rule Amendments provide an exemption for rail-bound 
vehicles used for conducting inspections, performing minor correction 
work or welding while applying the same limitations that apply to hi-
rail vehicles. The AAR/ASLRRA Joint Petition requested this exception 
for rail-bound vehicles where manual inspections or minor correction 
work are being conducted, because they involve the same activities as 
those performed during an inspection conducted by a hi-rail vehicle 
(which are excepted from the Final Rule's requirements). Neither the 
RSAC consensus agreement nor the Final Rule addressed rail-bound 
vehicles performing inspection or minor correction work. The BMWED/BRS 
joint comment submitted in response to the Petitions stated that they 
did not oppose expanding this exception to rail-bound equipment per the 
AAR/ASLRRA Joint Petition's suggestion. FRA agrees, and does not 
believe that excepting rail-bound vehicles from the final rule's 
requirements will present any additional risk beyond those risks faced 
by hi-rail vehicles and the roadway workers working near them. In the 
process of reviewing the AAR/ASLRRA Joint Petition, FRA recognized that 
there were a substantial number of other rail-bound vehicles used for 
these functions. Rail bound vehicles often have the capability to 
perform automated track inspections for geometry, gage restraint or 
internal flaws. FRA believes that limiting the productivity of such 
vehicles might reduce their ability to assist in identifying track 
related hazards and therefore limit their ability to prevent track-
caused accidents. It is difficult to estimate the foregone benefit

[[Page 1761]]

of avoiding those track-caused accidents, but FRA believes the accident 
costs avoided far exceed any risks induced by modifying the Final Rule.
    FRA does not have sufficient information available to reliably 
estimate how frequently this exception would be applicable. Further, 
FRA does not have any record of accidents having occurred that would be 
prevented by subjecting the newly excluded work to the provisions of 
the Final Rule. Nonetheless, because there is no reason to distinguish 
minor corrective work being performed from rail bound vehicles from 
identical work being performed from hi-rail vehicles, FRA is adopting 
the exception, but does not analyze the exception further.

5. Expansion of the Exception Pertaining to Repairs Performed on 
Roadway Maintenance Machines or Equipment

    The Final Rule Amendments expand the exception pertaining to 
repairs performed alongside roadway maintenance machines or equipment 
contained in the Final Rule to also include work performed within the 
perimeter of the machine or equipment. The AAR/ASLRRA Joint Petition 
noted that the exception as stated in the Final Rule was too narrow and 
should also apply to a worker positioned within the perimeter of the 
equipment, without regard to whether the maintenance or repairs are 
performed while positioned on a side of the occupied track. They also 
noted that that a repair person who is working beneath a machine should 
not be forced to extract himself or herself each time a train passed on 
an adjacent controlled track as this could increase the risk of injury 
to the worker, and that a roadway worker working performing repairs 
under the machine is not at risk of being struck by a train on the 
adjacent track. FRA did not consider these potential risks in its 
analysis of the Final Rule but agrees with AAR's assertions. 
Consequently, FRA's response adds an alternate condition that would 
expand the existing exception to include a roadway worker performing 
maintenance while positioned within the perimeter of the machine or 
equipment (either on or under it). This amendment to the Final Rule 
will reduce the risk of injury to employees extracting themselves from 
a machine or equipment in these circumstances, and, thus, will 
eliminate any potential costs associated with those potential injuries. 
This exception from the requirements of the Final Rule will also 
alleviate virtually all of the estimated $14 million annual cost that 
AAR's comment on the Petitions stated would result if the Final Rule 
applied to repairs performed on roadway maintenance machines standing 
on an adjacent controlled track.\27\ The total cost savings of this 
amendment over 20 years is $280 million. The discounted value of this 
cost is $149.2 million (PV, 7) and $208.3 million (PV, 3).
---------------------------------------------------------------------------

    \27\ The cost of repairing roadway maintenance machines was not 
specifically figured in the Final Rule's RIA. Instead, the RIA 
generally assessed the cost of complying, as such repair activity on 
an occupied track is ``roadway work'' and, thus, it was not 
contemplated by FRA that such work was not covered by the Final 
Rule. However, because the Final Rule Amendments further expand the 
exception that would accommodate such repair work, FRA believes that 
AAR's estimated cost is overstated and such repair work will, in all 
but rare circumstances, be able to be performed without these costs 
being incurred because the Amended Final Rule's requirements will 
not apply.
---------------------------------------------------------------------------

    The benefits of this change come both from reduced burden on 
productivity and from enhanced safety of workers who will not have to 
extricate themselves from under machinery, with a risk of injury each 
time they extricate themselves. FRA has no data on which to base an 
estimate of the reduced burden on productivity. Of course, since this 
provision had not yet taken effect, FRA had not seen any injuries 
caused by employees extricating themselves from under machinery in 
order to comply with the provision. FRA has no data on which to base an 
estimate of that risk. On the other hand, workers remaining under 
machinery may face a very small risk from potential train accidents 
that could injure the workers if the machines they are working on get 
hit in a collision between the train and roadway maintenance machines. 
The cost of this change, if any, would be a reduction in the safety 
benefit of having workers extricate themselves from under the machinery 
so as to be safe in the event of such a collision. FRA has no data on 
which to base that estimate, either.

Special Sensitivity Analysis of the Amended 2011 Final Rule

    As discussed above, in response to the Petitions FRA has also 
prepared a Special Sensitivity Analysis, which analyzes the Amended 
Final Rule, comprising the requirements of the 2011 Final Rule as 
revised by the Final Rule Amendments described above. The Special 
Sensitivity Analysis addresses the concerns raised in the Petitions 
regarding the cost-benefit analysis of the 2011 Final Rule. FRA notes 
that that this Special Sensitivity Analysis is not an evaluation of the 
2011 Final Rule, and that it uses updated VSL and wage rate estimates.

Requests Denied (Alternatives to the Final Rule)

    FRA is denying two of the requests made in joint AAR/ASLRRA Joint 
Petition. Those requests were to: (1) Clarify that the Final Rule did 
not address repair and maintenance of roadway maintenance machines, and 
(2) amend the Final Rule to permit work to resume when the leading end, 
rather than the trailing end, of a train traveling over 25 mph has 
passed a roadway work group on an adjacent occupied track (trailing end 
provision). Since FRA is not making any regulatory modifications based 
on these requests, FRA is not accounting for any changes in costs or 
benefits in analyzing the denied requests in this response to the 
Petitions.

1. Application of the Final Rule to Roadway Maintenance Machine Repair

    FRA is denying the first request because most of the work performed 
on roadway maintenance machines may be accomplished without the 
requirements of the Amended Final Rule applying to such work, 
particularly in light of FRA's decision to grant the request to expand 
the exception mentioned above pertaining to work performed within the 
perimeter of (to include on or under) roadway maintenance machines. 
Further, FRA does not believe that AAR's assertion that the repair of 
roadway maintenance machines on an adjacent track was not intended to 
be covered by the final rule has merit. Since the 1996 promulgation of 
the RWP regulations at 49 CFR part 214, such repair work to roadway 
maintenance machines or equipment has always required that on-track 
safety be established when roadway workers have the potential to foul 
track.

2. Trailing End Provision

    FRA is denying the second request regarding the trailing end 
provision. AAR's comment on the Petitions significantly overestimated 
the costs of complying with this provision ($56 million annually). 
Stopping work rather than slowing trains increases the time of track 
occupancy required to perform the maintenance, and the track occupancy 
itself by a roadway work group is the most costly factor involved in 
the analysis. FRA staff conducted a modeling analysis to calculate the 
delay associated with implementing this provision in the Amended Final 
Rule, and the results showed that congestion-induced costs were limited 
when freight train volumes were at or above a ten train per shift (7 
hours per shift affected by the Amended Final Rule) threshold.

[[Page 1762]]

Moreover, once the leading end of a freight train is slowed to 25 mph 
(a requirement agreed to by AAR) then the ability of a freight train to 
increase speed while passing a work gang is extremely limited. Thus, in 
FRA's view, the overall impact of this requirement is far less than the 
impact claimed by AAR in its petition. Further, when trains pass a 
roadway work group on an adjacent controlled track, injury risks are 
present (risk of shifted loads/shifted ladings, loose banding, dragging 
chains/binders, loose brake piping, loose/swinging boxcar doors, and 
fragmented brake shoes).
    The 2011 Final Rule provided that roadway workers may resume work 
only after the trailing end of a train or other on-track equipment 
(authorized to travel past the roadway work gang at a speed greater 
than 25 mph) has passed the roadway work group (``trailing end'' 
provision). The AAR/ASLRRA Joint Petition requested that the Final Rule 
be modified to permit roadway workers to resume work after the leading 
end of a train has passed. They cited the following points as support 
for their request: (1) There are no fatalities from shifted loads and 
no widespread problem of employees injured by shifted loads; (2) there 
are many railroad employees working near passing trains, not just 
roadway workers; (3) there is a heightened awareness of the roadway 
workers after the leading end of a train passes; and (4) prohibiting 
the resumption of work until the entire train or equipment has passed 
would adversely affect productivity and require the hiring of 
additional roadway workers, costing the railroads approximately $56 
million annually (based on an estimate for four Class I railroads 
alone). APTA's comment expressed support for the AAR/ASLRRA Joint 
Petition's position with regard to the ``trailing end'' provision. The 
BMWED/BRS joint comment stated that the AAR/ASLRRA Joint Petition 
ignored the risks associated with shifted loads/shifted ladings and the 
hazards associated with materials being kicked up by trains operating 
at track speed.
    FRA's analysis has not found cases above a certain train traffic 
volume (ten trains per shift) where stopping work while trains pass at 
greater than 25 mph (or, as amended, greater than 40 mph for passenger 
trains) would be less costly than slowing trains to 25 mph (or 40 mph 
for passenger) for any likely roadway worker work groups on an adjacent 
occupied track. Stopping work increases the time of track occupancy 
required to perform the maintenance. The track occupancy itself by a 
roadway work group is the most costly factor involved in the analysis.
    FRA performed modeling, described in more detail in the Special 
Sensitivity Analysis, that analyzes the impacts of the Amended Final 
Rule and which addresses petitioners' concerns with the previous 
analysis. The 20-year discounted costs of the trailing end provision of 
the 2011 Final Rule are estimated to total $841,300, discounted at 7 
percent or $1,185,447, discounted at 3 percent. These costs are far 
below AAR's estimates of $56 million per year. This point is discussed 
in further detail in the Special Sensitivity Analysis.
    Also, in rejecting AAR's petition, FRA is retaining the existing 
maximum speed of 25 mph for adjacent-controlled-track movements of 
freight trains and other freight on-track equipment movements which 
permits roadway work to continue on the occupied adjacent track. As 
mentioned above, when freight trains pass works zones on an adjacent 
track, the safety risk of shifted loads is present, as well as the 
safety risk of swinging doors, loose banding, and dragging equipment, 
and the hazards associated with debris, dust, stone, and construction/
maintenance materials being strewn by freight trains, which tend to be 
longer and much heavier than passenger trains. FRA's revised analysis 
of the impact of the combined final rules shows that congestion impacts 
that slow traffic when a track is occupied also limit the costs of 
slowing trains to 25 mph when they pass an adjacent occupied track. The 
costs, while not negligible, are much lower than the safety benefits 
provided. The 20-year discounted costs of slowing trains to 25 mph for 
adjacent-controlled-track movements of freight trains and other freight 
on-track equipment movements, exclusive of trailing end costs, will be 
$7.3 million, discounted at 7 percent or $10.2 million, discounted at 3 
percent.

Clarification

    In response to AAR's request in its Petition, FRA also clarified 
how railroads may release working limits. A clarification neither 
removes nor imposes a requirement and therefore creates neither 
benefits nor costs.

Conclusion

    FRA believes the cost-saving benefits of the Final Rule Amendments 
exceed their costs.

B. Regulatory Flexibility Act and Executive Order 13272; Final 
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impacts on small entities. FRA certifies that the Final Rule 
Amendments will not have a significant economic impact on a substantial 
number of small entities.
    ``Small entity'' is defined in 5 U.S.C. 601 (Section 601). Section 
601(3) defines a small entity as having the same meaning as ``small 
business concern'' under Section 3 of the Small Business Act. This 
includes any small business concern that is independently owned and 
operated, and is not dominant in its field of operation. Section 601(4) 
includes within the definition of small entities not-for-profit 
enterprises that are independently owned and operated, and are not 
dominant in their fields of operation. Additionally, Section 601(5) 
defines small entities as governments of cities, counties, towns, 
townships, villages, school districts, or special districts with 
populations less than 50,000. The U.S. Small Business Administration 
(SBA) stipulates in its size standards that the largest a railroad 
business firm that is for-profit may be, and still be classified as a 
small entity, is 1,500 employees for ``line haul operating railroads'' 
and 500 employees for ``switching and terminal establishments.''
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final policy 
that formally establishes small entities as railroads that meet the 
line haulage revenue requirements of a Class III railroad.\28\ The 
revenue requirements are currently $20 million or less in annual 
operating revenue. The $20 million limit (which is adjusted by applying 
the railroad revenue deflator adjustment) \29\ is based on the Surface 
Transportation Board's (STB) threshold for a Class III railroad 
carrier. FRA is using the STB's threshold in its definition of small 
entities for railroads affected by this rule. FRA has also adopted the 
STB threshold for Class III railroad carriers as the size standard for 
railroad contractors.\30\ FRA estimates that 703 railroads will be 
affected by the Amendments. This number equals the number of railroads 
that reported to FRA in 2011, minus those railroads that are tourist, 
scenic, excursion, or historic railroads and are not part of the 
general system (these railroads are exempt from the rule). Of those 
railroads, 44 are Class

[[Page 1763]]

I, Class II, commuter, and intercity passenger railroads. By FRA's 
definition of a small entity, two commuter railroads would be 
considered to be small entities. The remaining 659 railroads are also 
assumed to be small railroads for the purpose of this assessment, for a 
total of 661 small entities subject to this rule. However, because of 
certain characteristics that these railroads typically have (most small 
railroads do not have territories with adjacent controlled tracks, but 
rather only single-track operations), there should not be any impact on 
the majority of them. Some small railroads, such as the tourist and 
historic railroads, which operate across the lines of other railroads, 
are not subject to the applicability of the final rule because they do 
not own the track over which they operate. They might be affected by 
the impact, although beneficial, of the requirements of the Amendments. 
The impacts on entities not directly subject to the regulation are not 
considered in this Regulatory Flexibility Analysis. Finally, other 
small railroads, if they do have more than a single track, typically 
have operations that are light enough such that the railroads have 
generally always performed the pertinent trackside work with the track 
and right-of-way taken out of service, or conducted the work during 
hours that the track is not used. Thus, although 661 small railroads 
will be subject to this rule, very few actually have operations that 
will be affected by this rulemaking. FRA does not believe that a 
substantial number of small entities will be affected.
---------------------------------------------------------------------------

    \28\ See 68 FR 24891 (May 9, 2003); 49 CFR part 209, Appendix C.
    \29\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR part 1201.
    \30\ See 68 FR 24891 (May 9, 2003).
---------------------------------------------------------------------------

    FRA is uncertain as to the number of contractors that will be 
affected by the Amendments. FRA is aware that some railroads hire 
contractors to conduct some of the functions of roadway workers on 
their railroads. However, most of the cost savings associated with the 
burdens from the Amendments will ultimately get passed on to the 
pertinent railroad. In addition, at the proposed rule stage, FRA 
requested information related to contractors and the burdens that might 
impact them as a result of the proposed rule and received none. Hence, 
FRA is confident that the Amended Final Rule's requirements, which have 
not changed significantly from those proposed in the NPRM or the Final 
Rule published in November 2011, other than to reduce burdens, will not 
have an impact on any contractors that will perform track work on a 
small railroad. To the extent that any provisions of this rule do 
affect small entities, the effects are likely to be beneficial, as the 
Amendments only provides regulatory relief from the requirements 
originally imposed by the Final Rule. FRA does not believe the impact 
on any small entity will be significant.
    No other small businesses (non-railroads) are expected to be 
impacted by the Amendments.
    FRA certified that the Final Rule (76 FR 74586) was not expected to 
have a significant economic impact on a substantial number of small 
entities under 5 U.S.C. 605(b). Having made the determinations noted 
above, FRA certifies that the Final Rule Amendments will not have a 
significant economic impact on a substantial number of small entities 
under 5 U.S.C. 605(b).

C. Paperwork Reduction Act

    The information collection requirements in this final rule 
associated with FRA's response to petitions for reconsideration remain 
unchanged from the previous publication of this final rule and are 
being submitted upon publication in the Federal Register for approval 
to the Office of Management and Budget (OMB) under the Paperwork 
Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain 
the current information collection requirements and the estimated time 
to fulfill each requirement are as follows, and also remain unchanged:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
           CFR Section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.119--Part 214      350 Safety           150 forms..........  4 hours............             600
 Railroad Workplace Safety          Inspectors.
 Violation Report.
214.303--Railroad On-Track Safety
 Programs
    --Amendments to Programs.....  60 Railroads.......  20 amend. + 584      20 hours; 4 hrs....           2,736
                                                         amend.
    --Subsequent Years: New        5 New Railroads....  5 new prog.........  250 hours..........           1,250
     Programs.
214.313--Good Faith Challenges to  20 Railroads.......  80 challenges......  4 hours per                     320
 On-Track Safety Rules.                                                       challenge.
214.315/335--Supervision +
 communication
    --Regular Job Briefings......  50,000 Rdwy Workers  16,350,000 brf.....  2 minutes..........         545,000
    --Adjacent-Track Safety        24,500 Rdwy Workers  2,403,450 brf......  30 seconds.........          20,029
     Briefings (New).
214.321--Exclusive Track
 Occupancy: Working Limits
    --Written authority to         8,583 Roadway        700,739 authorities  1 minute...........          11,679
     roadway worker in charge.      Workers.
214.325--Train Coordination--      50,00 Roadway        36,500 comm........  15 seconds.........             152
 Establishing Working Limits        Workers.
 through Communication.
214.327--Inaccessible Track
    --Working Limits on Non-       718 Railroads......  50,000               10 minutes.........           8,333
     controlled Track:                                   notifications.
     Notifications.
214.336--Procedures for Adjacent-  100 Railroads......  10,000 notific.....  15 seconds.........              42
 Track Movements Over 25 mph--
 Notifications/Watchmen/Lookout
 Warnings.
    --Roadway Worker               100 Railroads......  3,000 comm.........  1 minute...........              50
     Communication with Train
     Engineers or Equipment
     Operators.
    --Procedures for Adjacent-     100 Railroads......  3,000 notific......  15 seconds.........              13
     Track Movements 25 mph or
     less--Notifications/Watchmen/
     Lookout Warnings.
    --Roadway Worker               100 Railroads......  1,500 comm.........  1 minute...........              25
     Communication with Train
     Engineers or Equipment
     Operators.

[[Page 1764]]

 
    --Exceptions to the            100 Railroads......  1,030,050 briefings  15 seconds.........           4,292
     requirements in paragraphs
     (a), (b), and (c) for
     adjacent-controlled-track on-
     track safety: Work
     activities involving certain
     equipment and purposes--On-
     Track Job Safety Briefings.
214.337--On-Track Safety           718 Railroads......  2,080,000            30 seconds.........          17,333
 Procedures for Lone Workers:                            statements.
 Statements by Lone Workers.
214.343/345/347/349/351/353/355--  50,000 Rdwy Workers  50,000 tr. RW......  4.5 hours..........         225,000
 training.
    --Additional on-track safety   35,000 Rdwy Workers  35,000 tr. RW......  5 min..............           2,917
     training (New).
    --Records of Training........  50,000 Roadway       50,000 records.....  2 min..............           1,667
                                    Workers.
214.503--Good Faith Challenges;
 Procedures for Notification and
 Resolution
    --Notifications for Non-       50,000 Rdwy Workers  125 notific........  10 minutes.........              21
     Compliant Roadway
     Maintenance Machines or
     Unsafe Condition.
    --Resolution Procedures......  644 Railroads......  10 procedures......  2 hours............              20
214.505--Required Environmental    644 Railroads/200    500 lists..........  1 hour.............             500
 Control and Protection Systems     contractors.
 For New On-Track Roadway
 Maintenance Machines with
 Enclosed Cabs.
    --Designations/Additions to    644 Railroads/200    150 additions/       5 minutes..........              13
     List.                          contractors.         designations.
214.507--A-Built Light Weight on   644 Railroads......  1,000 stickers.....  5 minutes..........              83
 New Roadway Maintenance Machines.
214.511--Required Audible Warning  644 Railroads......  3,700 identified     5 minutes..........             308
 Devices For New On-Track Roadway                        mechanisms.
 Maintenance Machines.
214.513--Retrofitting of Existing
 On-Track Roadway Maintenance
 Machines
    --Identification of            703 Railroads......  200 mechanisms.....  5 minutes..........              17
     Triggering Mechanism--Horns.
214.515--Overhead Covers For       644 Railroads......  500 requests + 500   10 minutes; 20                  250
 Existing On-Track Roadway                               responses.           minutes.
 Maintenance Machines.
214.517--Retrofitting of Existing  644 Railroads......  500 stencils.......  5 minutes..........              42
 On-Track Roadway Maintenance
 Machines Manufactured On or
 After Jan. 1, 1991.
214.518--Safe and Secure Position
 for riders
    --Positions identified by      644 Railroads......  1,000 stencils.....  5 minutes..........              83
     stencilings/markings/notices.
214.523--Hi-Rail Vehicles--        644 Railroads......  2,000 records......  60 minutes.........           2,000
 Inspections/Records.
    --Non-Complying Conditions...  644 Railroads......  500 tags + 500       10 min.; 15 min....             208
                                                         reports.
214.527--On-Track Roadway          644 Railroads......  550 tags + 550       5 min.; 15 min.....             184
 Maintenance Machine; Inspection                         reports.
 for Compliance and Repair
 Schedules.
214.533--Schedule of Repairs       644 Railroads......  250 records........  15 minutes.........              63
 Subject to Availability of
 Parts--Records of Compliance
 with this Section.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
unchanged paperwork package submitted to OMB, contact Mr. Robert Brogan 
at 202-493-6292 or Ms. Kimberly Toone at 202-493-6132 or via email at 
the following addresses: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov. 
Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via email to the Office of Management and Budget at the following 
address: oira_submissions@omb.eop.gov. 
mailto:victor.angelo@fra.dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. The current OMB control number for this collection 
of information is OMB No. 2130-0539.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism

[[Page 1765]]

implications that imposes substantial direct compliance costs and that 
is not required by statute, unless the Federal government provides the 
funds necessary to pay the direct compliance costs incurred by State 
and local governments, or the agency consults with State and local 
government officials early in the process of developing the regulation. 
Where a regulation has federalism implications and preempts State law, 
the agency seeks to consult with State and local officials in the 
process of developing the regulation.
    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. This final rule would 
not have a substantial effect on the States or their political 
subdivisions; it would not impose any compliance costs; and it would 
not affect the relationships between the Federal government and the 
States or their political subdivisions, or the distribution of power 
and responsibilities among the various levels of government. Therefore, 
the consultation and funding requirements of Executive Order 13132 do 
not apply.
    However, this final rule could have preemptive effect by operation 
of law under certain provisions of the Federal railroad safety 
statutes, specifically the former Federal Railroad Safety Act of 1970, 
repealed and recodified at 49 U.S.C. 20106 (Section 20106). Section 
20106 provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to Section 20106.
    In sum, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this final rule has no 
federalism implications, other than the possible preemption of State 
laws under Federal railroad safety statutes, specifically Section 
20106. Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this final rule is not required.

E. Environmental Impact

    FRA has evaluated this final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this final rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
See 64 FR 28547 (May 26, 1999).
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this final 
rule is not a major Federal action significantly affecting the quality 
of the human environment.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
The final rule will not result in the expenditure, in the aggregate, of 
$140,800,000 or more (as adjusted annually for inflation) in any one 
year, and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this final rule in accordance with Executive 
Order 13211. FRA has determined that this final rule is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Consequently, FRA has determined that this final rule is not 
a ``significant energy action'' within the meaning of Executive Order 
13211.

H. Trade Impact

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et 
seq.) prohibits Federal agencies from engaging in any standards setting 
or related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Legitimate domestic objectives, such as 
safety, are not considered unnecessary obstacles. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. FRA has 
assessed the potential effect of this final rule on foreign commerce 
and believes that its requirements are consistent with the Trade 
Agreements Act of 1979. The requirements imposed are safety standards, 
which, as noted, are not considered unnecessary obstacles to trade.

I. Privacy Act

    Interested parties should be aware that anyone is able to search 
the electronic form of all written comments received into any agency 
docket by the name of the individual submitting the document (or 
signing the document, if submitted on behalf of an association, 
business, labor union, etc.). Please see the privacy notice at https://www.regulations.gov/#!privacyNotice. You may review DOT's complete 
Privacy Act Statement in the Federal Register published on April 11, 
2000 (65 FR 19477-78) or you may visit https://www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 214

    Occupational safety and health, Penalties, Railroad safety.

[[Page 1766]]

The Rule

    For the reasons discussed in the preamble, FRA amends part 214 of 
title 49 of the Code of Federal Regulations as follows:

PART 214--[AMENDED]

0
1. The authority citation for part 214 is revised to read as follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 21301-21302, 21304; 28 
U.S.C. 2461, note; and 49 CFR 1.89.

Subpart C--Roadway Worker Protection

0
2. Amend Sec.  214.336 by:
0
a. Revising paragraph (a)(2),
0
b. Revising paragraph (a)(3) definitions of ``Adjacent controlled 
track'' and ``Minor correction,''
0
c. Revising the heading and introductory text of paragraph (b),
0
d. Revising paragraph (c),
0
e. Revising paragraph (e)(2),
0
f. Revising paragraph (e)(3)(i),
0
h. Revising Table 1, and
0
i. Revising Figure 1 to read as follows:


Sec.  214.336  On-track safety procedures for certain roadway work 
groups and adjacent tracks.

    (a) * * *
    (2) Special circumstance arising in territories with at least three 
tracks, if an occupied track is between two adjacent controlled tracks. 
If an occupied track has two adjacent controlled tracks, and one of 
these adjacent controlled tracks has one or more train or other on-
track equipment movements authorized or permitted at a speed of 25 mph 
or less (or 40 mph or less for one or more passenger train or other 
passenger on-track equipment movements), and the other adjacent 
controlled track has one or more concurrent train or other on-track 
equipment movements authorized or permitted at a speed over 25 mph (or 
over 40 mph for one or more passenger train or other passenger on-track 
equipment movements), the more restrictive procedures in paragraph (b) 
of this section apply.
    (3) * * *
    Adjacent controlled track means a controlled track whose track 
center is spaced 19 feet or less from the track center of the occupied 
track.
* * * * *
    Minor correction means one or more repairs of a minor nature, 
including, but not limited to, welding, spiking, anchoring, hand 
tamping, and joint bolt replacement, that are accomplished with hand 
tools or handheld, hand-supported, or hand-guided power tools. The term 
does not include machine spiking, machine tamping, or any similarly 
distracting repair.
* * * * *
    (b) Procedures for adjacent-controlled-track movements over 25 mph 
(or over 40 mph if passenger movements). If a train or other on-track 
equipment is authorized to move on an adjacent controlled track at a 
speed greater than 25 mph, or at a speed greater than 40 mph for a 
passenger train or other passenger on-track equipment movement, each 
roadway worker in the roadway work group that is affected by such 
movement must comply with the following procedures:
* * * * *
    (c) Procedures for adjacent-controlled-track movements 25 mph or 
less (or 40 mph or less if passenger movements). If a train or other 
on-track equipment is authorized or permitted to move on an adjacent 
controlled track at a speed of 25 mph or less, or at a speed of 40 mph 
or less for a passenger train or other passenger on-track equipment 
movement, each roadway worker in the roadway work group that is 
affected by such movement must comply with the procedures listed in 
paragraph (b) of this section, except that equipment movement on the 
rails of the occupied track and on-ground work performed exclusively 
between the rails (i.e., not breaking the plane of the rails) of the 
occupied track may continue, provided that no on-ground work is 
performed within the areas 25 feet in front of and 25 feet behind any 
on-track, self-propelled equipment or coupled equipment permitted to 
move on the occupied track.
* * * * *
    (e) * * *
    (2) Maintenance or repairs performed either alongside, or within 
the perimeter of, a roadway maintenance machine or coupled equipment on 
the occupied track. (i) One or more roadway workers performing 
maintenance or repairs alongside a roadway maintenance machine or 
coupled equipment, provided that such machine or equipment would 
effectively prevent the worker from fouling the adjacent controlled 
track on the other side of such equipment, and that such maintenance or 
repairs are performed while positioned on a side of the occupied track 
as described in paragraph (e)(1)(i), (ii), or (iii) and Table 1 of this 
section.
    (ii) One or more roadway workers on or under a roadway maintenance 
machine or coupled equipment performing maintenance or repairs within 
the perimeter of the machine or equipment, provided that no part of 
their person breaks the plane of the rail of the occupied track except 
when toward one of the sides of the occupied track as described in 
paragraph (e)(1)(i), (ii), or (iii) and Table 1 of this section. A boom 
or other equipment extending beyond the body of a roadway maintenance 
machine or coupled equipment toward an adjacent controlled track is not 
considered to be within the perimeter of the machine or coupled 
equipment.
    (3) * * *
    (i) A hi-rail vehicle or other rail-bound vehicle (other than a 
catenary maintenance tower vehicle) being used for inspection or minor 
correction purposes, provided that such vehicle is not coupled to one 
or more railroad cars. In accordance with Sec.  214.315(a), where 
multiple hi-rail or rail-bound vehicles being used for inspection or 
minor correction are engaged in a common task, the on-track safety job 
briefing shall include discussion of the nature of the work to be 
performed to determine if adjacent-controlled-track on-track safety is 
necessary.
* * * * *

[[Page 1767]]



       Table 1--Summary of On-Track Safety Procedures for Certain Roadway Work Groups and Adjacent Tracks
----------------------------------------------------------------------------------------------------------------
                  ``Side A'' of the occupied track--the  On or between the   ``Side B'' of the occupied track--
                   side from the vertical plane of the      rails of the    either (1) the side with no adjacent
                    near running rail of the occupied      occupied track      track or (2) the side from the
                    track extending outward through to      (`` `No. 2'      vertical plane of the near running
                    the fouling space of the adjacent        track'' or     rail of the occupied track extending
 Example number/   controlled track (`` `No. 1' Track''    ``number 2''),   outward through to the fouling space
 diagram number               or ``No. 1'')                where on-track   of the adjacent controlled track (``
 (see figure 1)  ---------------------------------------     Safety Is       `number 3' track'' or ``number 3'')
                                                            Established
                                                          through Working  -------------------------------------
                  Method of On-Track     Requirement           Limits                            Method of on-
                   Safety on Side A                     -------------------    Requirements     track safety on
                                                            Requirements                             side B
----------------------------------------------------------------------------------------------------------------
1...............  Working limits or   Upon receiving a   Upon movement      Work \3\ is not    Not applicable (N/
                   train approach      notification or    notification or    required to        A), because
                   warning.            warning for        warning for No.    cease during       there is no
                                       movement(s)        1, cease work      movement(s) on     adjacent track.
                                       (``movement        and occupy a       No. 1.
                                       notification or    PPOS, except
                                       warning'') for     work may
                                       No. 1, cease       continue during
                                       work and occupy    movement(s) on
                                       a predetermined    No. 1 auth'd. at
                                       place of safety    25 mph or less
                                       (``PPOS'') \1\.    (or 40 mph or
                                                          less for
                                                          passenger train
                                                          movements) if
                                                          maintain
                                                          25[foot] spacing
                                                          \2\.
2...............  Working limits....  Upon movement      Upon movement      Upon movement      Working limits.
                                       notification for   notification for   notification for
                                       No. 1, cease       No. 1 or No. 3,    No. 3, cease
                                       work and occupy    cease work and     work and occupy
                                       a PPOS. Work \3\   occupy a PPOS,     a PPOS. Work \3\
                                       is not required    except work may    is not required
                                       to cease during    continue during    to cease during
                                       movement(s) on     movement(s) on     movement(s) on
                                       No. 3.             No. 1 or No. 3     No. 1.
                                                          auth'd. at 25
                                                          mph or less (or
                                                          at 40 mph or
                                                          less for
                                                          passenger train
                                                          movements) if
                                                          maintain
                                                          25[foot] spacing
                                                          \2\.
3...............  Working limits....  Upon movement      Upon movement      Upon movement      Train approach
                                       notification for   notification for   warning for No.    warning.
                                       No. 1, cease       No. 1 or warning   3 or
                                       work and occupy    for No. 3, cease   notification for
                                       a PPOS. Work \3\   work and occupy    No. 1, cease
                                       is not required    a PPOS, except     work and occupy
                                       to cease during    work may           a PPOS.
                                       movement(s) on     continue during
                                       No. 3.             movement(s) on
                                                          No. 1 or No. 3
                                                          auth'd. at 25
                                                          mph or less (or
                                                          at 40 mph or
                                                          less for
                                                          passenger train
                                                          movements) if
                                                          maintain
                                                          25[foot] spacing
                                                          \2\.
4...............  Train approach      Upon movement      Upon movement      Upon movement      Train approach
                   warning.            warning for No.    warning for No.    warning for No.    warning.
                                       1 or No. 3,        1 or No. 3,        3 or No. 1,
                                       cease work and     cease work and     cease work and
                                       occupy a PPOS.     occupy a PPOS,     occupy safety
                                                          except work may    PPOS.
                                                          continue during
                                                          movement(s) on
                                                          No. 1 or No. 3
                                                          auth'd. at 25
                                                          mph or less (or
                                                          at 40 mph or
                                                          less for
                                                          passenger train
                                                          movements) if
                                                          maintain
                                                          25[foot] spacing
                                                          \2\.
5...............  None, but with      Work is            Work is not        Work is not        N/A, because
                   inter-track         prohibited on      required to        required to        there is no
                   barrier.            No. 1 and up to    cease during       cease during       adjacent track.
                                       barrier (``Side    movement(s) on     movement(s) on
                                       A1''). Work is     No. 1.             No. 1.
                                       not required to
                                       cease btwn.
                                       barrier and near
                                       running rail of
                                       occupied track
                                       (``Side A2'')
                                       during
                                       movement(s) on
                                       No. 1.

[[Page 1768]]

 
6...............  None, but with      Work is            Work is not        Upon movement      Working limits or
                   inter-track         prohibited on      required to        notification or    train approach
                   barrier.            Side A1. Work      cease during       warning for No.    warning.
                                       \3\ is not         movement(s) on     3, cease work
                                       required to        No. 1. Upon        and occupy a
                                       cease on Side A2   movement           PPOS. Work \3\
                                       during             notification or    is not required
                                       movement(s) on     warning for No.    to cease during
                                       No. 1 or No. 3.    3, cease work      movement(s) on
                                                          and occupy a       No. 1.
                                                          PPOS, except
                                                          work may
                                                          continue during
                                                          movement(s) on
                                                          No. 3 auth'd. at
                                                          25 mph or less
                                                          (or at 40 mph or
                                                          less for
                                                          passenger
                                                          trains) if
                                                          maintain
                                                          25[foot] spacing
                                                          \2\.
----------------------------------------------------------------------------------------------------------------
\1\ As used in the above table, a ``predetermined place of safety'' (or ``PPOS'') means a specific location that
  an affected roadway worker must occupy upon receiving a watchman/lookout's warning of approaching movement(s)
  (``warning'') or a roadway worker in charge's (``RWIC's'') notification of pending movement(s) on an adjacent
  track (``notification''), as designated during the on-track safety job briefing required by Sec.   214.315.
  The PPOS may not be on a track, unless the track has working limits on it and no movements permitted within
  such working limits by the RWIC. Thus, under these circumstances, the space between the rails of the occupied
  track (No. 2 in this table) may be designated as a place to remain in position or to otherwise occupy upon
  receiving a warning or notification. The RWIC must determine any change to a PPOS, and communicate such change
  to all affected roadway workers through an updated on-track safety job briefing.
\2\ On-ground work is prohibited in the areas 25[foot] in front of and 25[foot] behind equipment on the occupied
  track (No. 2), and must not break the plane of a rail on No. 2 towards a side of No. 2 unless work is
  permitted on that side. Note, however, that per Sec.   214.336(a)(2), work would no longer be permitted to
  continue on or between the rails of the occupied track during movement(s) on an adjacent controlled track at
  25 mph or less (or at 40 mph or less for passenger trains or other passenger on-track equipment movements) if
  there is a simultaneous movement on the other adjacent controlled track at more than 25 mph (or at more than
  40 mph per hour for passenger train movements or other passenger on-track equipment movements).
\3\ Work that does not break the plane of the near running rail of the occupied track (No. 2) is not required to
  cease during such movements; work that breaks the plane of the near running rail of the occupied track may
  also continue: 1) during the times that work is permitted on or between the rails of the occupied track in
  accordance with Sec.   214.336(c) (Procedures for adjacent-controlled-track movements 25 mph or less, or 40
  mph or less for passenger train movements or other passenger on-track equipment movements); or 2) if such work
  is performed alongside or within the perimeter of a roadway maintenance machine or coupled equipment in
  accordance with Sec.   214.336(e)(2).

BILLING CODE 4910-06-P

[[Page 1769]]

[GRAPHIC] [TIFF OMITTED] TR10JA14.000


[[Page 1770]]


[GRAPHIC] [TIFF OMITTED] TR10JA14.001


0
3. Appendix A to part 214 is amended by removing the space before the 
superscripts for footnotes 1 and 2, revising the entry under Subpart C 
for Sec.  214.315, revising the entry under Subpart C for Sec.  
214.336, and revising footnote 1 to read as follows:

[[Page 1771]]



         Appendix A to Part 214--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                              Willful
               Section \2\                   Violation       violation
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------
                Subpart C--Roadway Worker Protection Rule
------------------------------------------------------------------------
 
                              * * * * * * *
214.315 Supervision and communication:
    (a) * * *
    (2)-(4) Partial failure of employer            2,000           4,000
     to provide on-track safety job
     briefing...........................
    (b) Incomplete job briefing.........           2,000           5,000
    (c)(i) Failure to designate roadway            2,000           5,000
     worker in charge of roadway work
     group..............................
    (ii) Designation of more than one              1,000           2,000
     roadway worker in charge of a
     roadway work group.................
    (iii) Designation of non-qualified             3,000           6,000
     roadway worker in charge of roadway
     work group.........................
    (d)(i) Failure to notify roadway               3,000           6,000
     workers of on-track safety
     procedures in effect...............
    (ii) Incorrect information provided            3,000           6,000
     to roadway workers regarding on-
     track safety procedures in effect..
    (iii) Failure to notify roadway                3,000           6,000
     workers of change in on-track
     safety procedures..................
    (e)(i) Failure of lone worker to                               1,500
     communicate with designated
     employee for daily job briefing....
    (ii) Failure of employer to provide            3,000           6,000
     means for lone worker to receive
     daily job briefing.................
 
                              * * * * * * *
214.336 On-track safety procedures for
 certain roadway work groups and
 adjacent tracks:
    (a) * * *
    (2) Failure to implement the more              1,500           3,000
     restrictive procedure required by
     paragraph (b) during special
     circumstance of concurrent
     movement(s) on two adjacent
     controlled tracks where one
     movement is authorized or permitted
     at a speed over 25 mph (or over 40
     mph for a passenger movement)......
 
                              * * * * * * *
    (c) Failure to maintain 25-foot                2,000           4,000
     spacing between on-track, self-
     propelled equipment or coupled
     equipment and roadway workers(s) on
     the occupied track during an
     adjacent-controlled track movement
     at 25 mph or less (or at 40 mph or
     less for a passenger movement).....
 
                              * * * * * * *
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $105,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A. Failure to observe any condition(s) of an
  exception set forth in paragraph (e) of Sec.   214.336 deprives the
  railroad or contractor of the benefit of the exception and makes the
  railroad or contractor, and any responsible individuals, liable for
  penalty under the particular regulatory provision(s) from which the
  exception would otherwise have granted relief.
\2\ The penalty schedule uses section numbers from 49 CFR part 214. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.


    Issued in Washington, DC, on December 27, 2013.
Stacy Cummings,
Executive Director.
[FR Doc. 2013-31417 Filed 1-9-14; 8:45 am]
BILLING CODE 4910-06-C