[Federal Register Volume 79, Number 7 (Friday, January 10, 2014)]
[Rules and Regulations]
[Pages 1743-1771]
From the Federal Register Online via the Government Publishing 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.
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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.
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Potential cost Benefits: Estimated Benefits: Estimated
Amendments to the final rule implications cost savings (PV, 7%) cost savings (PV, 3%)
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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.
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Total............................ ....................... $341.6 Million......... $478.4 Million.
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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.
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\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.
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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.
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\5\ The Final Rule is now scheduled to take effect July 1, 2014.
78 FR 33754.
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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.
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\6\ See Docket No. FRA-2008-0059; available online at http://www.regulations.gov/#!docketDetail;D=FRA-2008-0059.
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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\:
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\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.
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Estimated cost-benefit
comparison * Costs Benefits
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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.
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* 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\
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\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 http://www.dot.gov/regulations/economic-values-used-in-analysis.
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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.
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\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.
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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.
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\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.
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\16\ Train Performance Simulator Version 5c, revised March 1988
by DOT.
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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\
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\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 http://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.
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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.
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\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 http://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: [email protected]; [email protected].
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: [email protected].
mailto:[email protected].
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 http://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 http://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).
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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]
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