[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19234-19237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10230]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[FRA Docket No. RSOR 13, Notice No. 10]
RIN 2130-AA86


Roadway Worker Protection

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: On December 16, 1996, FRA published its Final Rule on Roadway 
Worker Protection (61 FR 65959), which was the product of the agency's 
first regulatory negotiation. This rule promulgates standards to 
protect roadway workers while working on or near railroad tracks. In 
this document, FRA responds to concerns raised by two parties in 
petitions for reconsideration of the final rule.

EFFECTIVE DATE: January 15, 1997.

FOR FURTHER INFORMATION CONTACT: Gordon A. Davids, P.E., Bridge 
Engineer, Office of Safety, FRA, 400 Seventh Street S.W., Room 8326, 
Washington, D.C. 20590 (telephone: 202-632-3340); Grady Cothen, Deputy 
Associate Administrator for Safety Standards and Program Development, 
FRA, 400 Seventh Street S.W., Washington, D.C. 20590 (telephone: 202-
632-3309); or Cynthia Walters, Trial Attorney, Office of Chief Counsel, 
FRA, 400 Seventh Street S.W., Room 8201, Washington, D.C. 20590 
(telephone 202-632-3188).

SUPPLEMENTARY INFORMATION: On December 16, 1996, FRA published its 
final rule on Roadway Worker Protection which established standards for 
the protection of roadway workers who are working on or about railroad 
track. This rule represents the efforts of an Advisory Committee 
chartered to conduct FRA's first negotiated rulemaking. On January 6, 
1997, the Association of American Railroads filed a petition for 
reconsideration of the final rule. The AAR's petition specifically 
alleges:
     Section 214.337 of the final rule imposes significant 
additional costs on the railroad industry without commensurate safety 
gains;
     The Advisory Committee did not participate in the economic 
evaluation of the final rule; and
     FRA has failed to provide a reasoned response to a 
significant concern raised on the record by AAR and its members.

[[Page 19235]]

    On February 11, 1997, the American Public Transit Association also 
filed a petition for reconsideration of the final rule. APTA's petition 
specifically alleges:
     APTA's commuter rail members will not be able to comply 
with the regulations by the March 15, compliance date and urges FRA to 
extend the date to September 15 for commuter railroads.
     APTA urges FRA to reconsider the use of restricted speed 
in yards and interlockings as a form of on track safety protection; and
     APTA urges FRA to reconsider section 214.337 by allowing 
lone workers to perform visual inspections within interlockings and 
control point limits when trains are operating at restricted speed.

A. Procedural Issues

    Petitions for reconsideration to the Administrator must be filed in 
accordance with 49 CFR 211.29(a), which requires:

    Except for good cause shown, such a petition must be submitted 
not later than 60 days after publication of the rule in the Federal 
Register, or 10 days prior to the effective date of the rule, 
whichever is the earlier. (49 CFR 211.29(a)).

    The effective date for this rule was January 15, 1997, making the 
appropriate filing deadline January 5, 1997, 10 days prior to the 
effective date. Since the filing deadline fell on a weekend, all 
petitions were to be filed by the next business day, Monday, January 6. 
APTA's petition, was filed on February 11, more than 30 days after the 
appropriate filing deadline. In accordance with the regulation, late 
filers are expected to show good cause. APTA's petition, however, fails 
to set forth an argument for such good cause. Despite APTA's untimely 
filing and lack of good cause shown, FRA is addressing the substance of 
the petition in this response.

B. The AAR's Concerns

    The petition submitted by the AAR addressed 3 major concerns which 
require reconsideration of one provision, Sec. 214.337, On Track Safety 
Procedures for Lone Workers. The AAR asserts the following:

1. The Final Rule Imposes Significant Additional Costs on the Railroad 
Industry Without Commensurate Safety Gains

    This allegation is in reference to Sec. 214.337's prohibition on 
the use of individual train detection as protection for lone workers in 
interlockings, controlled points, and remotely controlled hump yards. 
The AAR contends that the final rule should be modified to allow lone 
workers to perform inspections and minor correction work within 
controlled points, manual interlockings or remotely controlled hump 
yards while using individual train detection at locations where sight 
distance, background noise and adjacent track constraints pose no 
threat to safety. The AAR's argument essentially reiterates the 
argument set forth by Norfolk Southern Railway (Norfolk Southern) in 
its comment to the docket. This comment was addressed during the 
Advisory Committee's final meeting which was dedicated to the 
discussion of comments to the NPRM. During that meeting, the Advisory 
Committee could not reach consensus to reopen this issue despite 
Norfolk Southern's explanation of its concern.
    The AAR acknowledges sending an August 23rd letter to the docket, 
after the committee met. In that letter, the AAR articulated the same 
arguments that it now presents in its petition. The AAR maintains that 
this prohibition will create situations where roadway workers will 
simply forgo inspection. The AAR also contends that this prohibition is 
unnecessary, since lone workers have a right to get more restrictive 
protection when they believe it is necessary. The AAR also argues that 
any railroad is generally free to adopt more restrictive measures 
making it unnecessary and excessive to include such measures in the 
final rule. Finally, the AAR contends that there are no fatality data 
involving a lone worker, trained in roadway worker protection, 
inspecting in a controlled point, manual interlocking or remotely 
controlled hump yard.
    FRA independently analyzed the claims presented by the AAR in that 
letter and the cost data used to support them. FRA agreed with the 
Advisory Committee, which reached consensus after much debate that 
there are sound safety reasons to restrict a lone worker's use of 
individual train detection, and articulated that reasoning in the 
preamble to the final rule. Since individual train detection does not 
ensure that a train will not operate over the track, FRA has limited 
the use of this method of on-track safety to instances where the risks 
associated with the roadway work environment are minimal. FRA provided 
data indicating that manual interlockings, controlled points and remote 
controlled hump yards are not locations of low risk for roadway 
workers. Eleven (11) fatalities occurred between 1989 and 1995, in 
these locations and in situations virtually analogous to lone workers 
utilizing individual train detection. Although these workers were 
technically members of a work group, they were performing tasks by 
themselves and responsible for protecting themselves. Many of these 
roadway workers had recently undergone rules training and had the 
option to request additional forms of protection. Despite recent 
training and the option for more protection, 11 roadway workers were 
killed. The AAR is simply mistaken when it contends that there are no 
safety gains flowing from this restriction.
    The AAR further contends that due to the burdensome nature of these 
restrictions, the frequency of inspections will decrease in 
interlockings and controlled points. It is important to note that there 
are Federal regulations requiring both track and signal inspections. 
These regulations establish minimum inspection frequencies and safety 
standards for track and signal.
    In addition to Federal standards, railroads often have their own 
internal mandates requiring certain track and signal inspections. FRA 
believes that the new roadway worker protection standards will have no 
impact on these inspections, since they are required by either Federal 
regulation or railroad rule in order to maintain a minimum level of 
safety. However, as always, FRA will not hesitate to employ enforcement 
measures for any of its regulations, if non-compliance is discovered.
    Finally, the AAR's petition included a cost analysis asserting that 
this provision is far too expensive. FRA did not find this assertion 
persuasive. First, the AAR did not provide critical assumptions used in 
conducting its analysis, making it difficult to provide a reasoned 
response to the AAR's contentions. For example, FRA's calculations used 
in the Regulatory Impact Analysis pertained to additional cost burdens. 
In many instances, railroads are already providing some sort of 
protection. It is not clear that the AAR has calculated only costs 
associated with providing additional on-track safety protection. The 
enormity of the number the AAR used in connection with lone workers 
would seem to indicate that the figure represents the cost of total man 
hours to provide on-track safety for lone workers at interlockings, 
controlled points and remotely controlled hump yards, not the 
additional cost of man hours for providing on-track safety for lone 
workers at interlockings and controlled points. The AAR's petition did 
not specify which method of protection was

[[Page 19236]]

used for their cost estimate. It appears that the AAR calculated their 
costs by using more expensive methods of on-track safety protection 
than FRA used. Perhaps the most puzzling portion of this cost analysis 
is the sparse detail offered to explain how the cost of this provision 
increased from $2,847,586 for one railroad to $12,000,000 for the 
industry. Given the AAR's cost estimate, one railroad represents 24 
percent of the industry's costs. This figure defies FRA's understanding 
of the industry, since no railroad represents such a significant share. 
After careful consideration and for the reasons set forth above, FRA 
has decided not to modify this provision.

2. The Advisory Committee Did Not Participate in the Economic 
Evaluation of the Final Rule

    FRA finds puzzling the AAR's desire to have its economic concern 
addressed in a petition for reconsideration to the final rule. The AAR 
seems to take issue with the conclusions reached in the analysis. The 
AAR concludes that the rule is based fully or partially on false 
premises. The AAR expresses the belief that had they participated in 
the development, methodology, or assumptions used in the Regulatory 
Impact Analysis, the resulting document would have been more accurate.
    FRA contends that the Regulatory Impact Analysis was never intended 
to be part of this Regulatory Negotiation. FRA's Notice proposing the 
formation of a negotiated rulemaking committee discussed ``key issues 
for negotiation.'' (59 FR 42203) FRA did not anticipate the Regulatory 
Impact Analysis itself being a topic for negotiation. Nor did FRA 
receive any comments to the initial notice suggesting that the analysis 
be considered a key issue for negotiation.
    Most important, FRA stands firmly behind the methodology and 
conclusions reached in its analysis. The methodology used is 
consistently employed by this agency and renders accurate results. In 
addition, Advisory Committee members were included in surveys providing 
information which formed the basis of significant portions of the 
analysis. FRA also used data that are routinely provided to the agency 
by the various railroads themselves.
    Lastly, FRA believes that each railroad is in the best position to 
determine how proposed safety standards will affect them. Committee 
members were expected to independently weigh the benefits and burdens 
of proposed standards for the interests that they represent, during the 
course of the negotiations. Participation in formulating FRA's 
regulatory impact analysis should not have had a significant effect on 
any party warranting reconsideration of the rule. Negotiated rulemaking 
theory assumes that parties will examine the impact of rule provisions 
on their interest as they negotiate and it assumes that given that 
self-examination, no party would reach consensus on issues that have a 
severe detrimental impact on them. The consensus reached at the NPRM 
stage was not a consensus pending review of the Regulatory Impact 
Analysis, but a solid consensus on recommended rule text for minimum 
standards in the area of Roadway Worker Protection.

3. FRA has Failed To Provide a Reasoned Response to a Significant 
Concern Raised on the Record by the AAR and its Members

    FRA addressed all comments to the docket in the preamble to the 
Final Rule. The AAR is mistaken when it asserts that FRA did not 
provide a reasoned response to its concerns. There was an entire 
section of the preamble dedicated to the issues of Restricted Speed and 
Lone Workers. FRA considered the AAR's comment and did not find it 
persuasive for safety reasons. FRA also determined that the provision 
would not be modified in accordance with the AAR's suggestion. In 
addition, a portion of the Regulatory Impact Analysis was devoted to 
the economic concerns presented by the AAR. FRA has clearly provided a 
reasoned response for its decision against incorporating changes 
suggested by the AAR.

C. APTA's Concerns

    APTA's petition addressed 3 major concerns also. APTA asserts the 
following:

1. APTA Requests to Extend the Compliance Date for Commuter Railroads 
to September 15

    APTA expressed concern regarding meeting the March 15 compliance 
date for commuter railroads. APTA's petition acknowledges full 
participation in the regulatory negotiation process. APTA members had a 
good understanding of the NPRM recommended by the Advisory Committee 
and participated in the discussion regarding suggested changes that had 
been submitted in the form of comments to the docket. In fact, APTA 
members were fully aware that beginning last spring, many class 1 
railroads had voluntarily implemented on-track safety measures similar 
to those recommended in the NPRM. Despite full participation in the 
process, and full knowledge of the standards that were likely to get 
published, it appears as though these measures come unexpectedly to 
some commuter railroads. FRA finds surprising the need for a 6-month 
extension for a significant portion of the railroad industry on the 
basis of training when at least portions of the on-track safety program 
can be implemented with very little training. In addition, FRA has 
received correspondence from at least one commuter railroad indicating 
that it would be in full compliance by March 15. FRA believes that 
issues regarding the compliance date are best handled through the 
waiver process, since there is no compelling reason to change the 
compliance date for all commuter railroads. At present, FRA has 
received waiver petitions from several commuter railroads and is 
committed to provide expedited service on these petitions. After 
careful consideration and for the reasons set forth above, FRA has 
decided not to extend the compliance date for all commuter railroads 
and will address the individual requests for extension through the 
waiver process.

2. APTA Requests that Restricted Speed be as a Form of On-Track Safety 
Protection in Yards and Interlockings

    The issue of whether the use of restricted speed, alone, would 
constitute on-track safety surfaced during the regulatory negotiation. 
The parties to the negotiation determined that restricted speed would 
not constitute on-track safety protection. FRA articulated its belief 
that unusual circumstances in certain locations where this measure or 
others might be considered sufficient to constitute on-track safety 
protection, would have to be addressed by the waiver process. FRA felt 
that it would be necessary to consider the unique qualities of each 
operation in order to determine the merits of a waiver petition 
regarding whether restricted speed could be considered on-track safety 
protection. After careful consideration and for the sound safety 
reasons, FRA has also decided not to consider restricted speed a form 
of on-track safety protection and to also address this issue through 
the waiver process.

3. APTA Requests That Lone Workers Be Allowed to use Individual Train 
Detection as a Form of Protection While Conducting Visual Inspections 
Within Interlockings and Controlled Points When Trains are Operating at 
Restricted Speed

    APTA's concern regarding lone workers was discussed during the 
regulatory negotiation and the comment period following publication of 
the NPRM. FRA included a detailed

[[Page 19237]]

discussion of these comments in the preamble to the final rule. (61 FR 
65062) APTA's request also pertains to Sec. 214.337, but is slightly 
different than the AAR's, since trains in this instance will be 
operating at restricted speed. Despite this difference, FRA's safety 
reasoning is the same. FRA and the committee were not willing to carve 
out an exception for lone workers using individual train detection at 
interlockings and controlled points, even if trains are operating at 
restricted speed. FRA continues to believe that sound safety principles 
limit the use of individual train detection. APTA members have also 
addressed this issue through waiver petitions, which is again the best 
forum for such concerns. After careful consideration and for the 
reasons set forth above, FRA has decided not to change Sec. 214.337's 
prohibition on the use of individual train detection.

    Issued this 15th day of April 1997.
Jolene M. Molitoris,
Administrator, Federal Railroad Administration.
[FR Doc. 97-10230 Filed 4-18-97; 8:45 am]
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