[Federal Register Volume 67, Number 59 (Wednesday, March 27, 2002)]
[Proposed Rules]
[Pages 14665-14667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7364]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 215

[FRA Docket No. RSFC-7; Notice No. 4]
RIN 2130-AA68


Freight Car Safety Standards: Maintenance-of-Way Equipment

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Termination of rulemaking proceeding.

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SUMMARY: This document terminates the rulemaking action initiated in 
FRA Docket No. RSFC-7. In its Notice of Proposed Rulemaking (NPRM), FRA 
proposed an amendment of the Freight Car Safety Standards, which 
currently do not apply to maintenance-of-way (MOW) equipment if 
stenciled and not used in revenue service. The NPRM proposed an 
additional 20 miles per hour (mph) speed restriction on MOW equipment 
in order for it to be operated without complying with the Freight Car 
Safety Standards. Termination of this rulemaking is based on 
consideration of the comments submitted in response to the NPRM, the 
need to consider and evaluate more current safety and accident data 
related to MOW equipment, and FRA's desire to potentially reevaluate 
and develop alternative approaches to the issues, if necessary, based 
on current fact-based data.

FOR FURTHER INFORMATION CONTACT: Thomas J. Herrmann, Trial Attorney, 
Office of Chief Counsel, FRA, 1120 Vermont Avenue, N.W., Stop 10, 
Washington, D.C. 20590 (telephone: 202-493-6036).

SUPPLEMENTARY INFORMATION: In March of 1994, FRA issued an NPRM 
proposing an amendment to the Freight Car Safety Standards (FCSS), 
codified in 49 CFR Part 215, to make all maintenance-of-way (MOW) 
equipment subject to the FCSS except such equipment stenciled MOW 
equipment, not used in revenue service, and restricted to a speed of 
less than 20 miles per hour (mph). See 59 FR 11238 (March 10, 1994). 
Under the existing regulations, the exception for MOW equipment 
requires only that it be stenciled and not used in revenue service. 
Thus, FRA proposed an additional restriction related to the operation 
of MOW equipment not in compliance with the FCSS, requiring such 
equipment to be operated at a speed of less than 20 mph.
    The preamble to the NPRM discussed the basis of FRA's concerns 
regarding the need for the proposed speed restriction on MOW equipment. 
The preamble noted that FRA conducted three surveys between 1983 and 
1986 on MOW equipment which resulted in a high percentage of such 
equipment being found with conditions not in compliance with the FCSS. 
See 59 FR 11239. It should be noted that the conducted surveys 
disclosed that the percent of MOW equipment found with defective 
conditions under the FCSS decreased with each successive survey. See 
id. The preamble also discussed a train derailment which occurred on 
July 18, 1983, in Crystal City, Missouri, the investigation of which 
indicated that a MOW vehicle with a cracked and displaced centerplate 
was a major contributing cause to the accident. The NTSB estimated the 
damages related to this accident at more than $1 million and issued the 
following recommendation to FRA:
    Require that MOW cars meet the Railroad Freight Car Safety 
Standards or, in the alternative, impose operating restrictions on MOW 
cars being moved in revenue freight trains to compensate for the actual 
mechanical conditions of the cars. (R-84-10) (February 22, 1984).
    In November of 1994, NTSB closed this 10-year-old recommendation 
and has not reissued a similar recommendation. The preamble to the NPRM 
also discussed the potential impact of AAR's 1994 change to its 
interchange rules, prohibiting the interchange of cars equipped with 
friction bearings. As a large number of MOW cars were equipped with 
friction bearings, FRA raised concerns regarding whether the industry's 
prohibition on interchanging such equipment would result in a reduction 
in the number of locations on the railroads where personnel are capable 
of performing frequent inspections and lubrication of these components.
    FRA's economic evaluation developed in connection with the NPRM 
identified the costs and benefits related to the proposed 20-mph speed 
restriction on

[[Page 14666]]

MOW equipment not in compliance with the FCSS. The evaluation 
identified approximately $1.1 million in safety benefits based on a 
review of FRA's accident data between 1980 and mid-1987. This review 
identified 26 accidents caused by MOW equipment which resulted in 
approximately $1.1 million in damage to railroad property and involved 
no injuries or fatalities. The evaluation also estimated the costs 
associated with the proposed restriction based on the assumption that 
railroads would repair existing equipment to meet the FCSS rather than 
operate MOW equipment pursuant to the proposed 20-mph restriction. The 
evaluation identified a 10-year Net Present Value cost associated with 
the proposed restriction of approximately $4.4 million. The estimate 
determined that approximately $3.3 million would be required to bring 
existing MOW equipment into compliance with the FCSS and that an 
additional $330,000 a year would be required to maintain the equipment 
consistent with the requirements of the FCSS.
    FRA received written comments from six parties raising various 
concerns related to the additional restriction proposed in the NPRM. 
These commenters included:

Association of American Railroads (AAR),
American Short Line and Regional Railroad Association (ASLRRA),
Brotherhood of Railway Carmen, Division of the Transportation 
Communications International Union (BRC),
Brotherhood of Maintenance of Way Employes (BMWE),
Duluth, Missabe and Iron Range Railway Company (DMIR), and
Norfolk Southern Corporation (NS).

    AAR, ASLRRA, and NS all commented that FRA failed to establish a 
significant safety rationale for proposing the costly operating 
restrictions on MOW equipment. These commenters did not believe that 
any change to the FCSS was warranted. AAR objected to the age of the 
data used by FRA to justify the proposal in 1994 and noted that the 
data itself showed that the percentage of MOW equipment containing 
defective conditions under the FCSS was declining into the mid-1980s. 
AAR also noted that none of the accidents relied on by FRA involved any 
injury or fatality. AAR further contended that MOW equipment was 
sufficiently covered by the safety appliance and power brake 
regulations contained in 49 CFR parts 231 and 232 and that FRA had not 
established that such equipment comprised a safety threat.
    AAR and NS also asserted that FRA's economic evaluation was 
seriously flawed because it failed to consider the impact of the 
proposal on MOW equipment over 50 years old. These commenters contended 
that the proposal to apply the FCSS to MOW equipment would 
significantly impact MOW equipment which is more than 50 years old 
because Sec. 215.203 imposes strict limits on the use of such 
equipment. AAR asserted that the impact on 50-year-old MOW equipment 
would constitute a significant ``opportunity cost'' to the industry. 
AAR and NS contended that the cost to replace this older equipment 
would be in excess of $220 million.
    AAR also claimed that FRA's economic analysis significantly 
underestimated the maintenance costs involved with maintaining MOW 
equipment in accordance with the FCSS. AAR noted that FRA only assumed 
$41 per car annually to maintain the equipment consistent with the 
requirements of the FCSS. AAR asserted that the annual maintenance cost 
would likely be closer to $300 per car. Thus, AAR claimed that FRA's 
cost estimates should have been increased by approximately $12 million 
based on this factor alone.
    AAR and NS claimed that FRA could apply the FCSS to MOW equipment 
in a manner which was much less costly than that proposed by FRA. These 
commenters recommended that any application of the FCSS to MOW 
equipment should provide an exception from Sec. 215.203 for cars more 
than 50 years old. They also recommended an exemption for emergency and 
specialized MOW equipment (pile drivers, track geometry cars, snow 
plows, etc.) and suggested that a significant transition period, at 
least five years, be provided to allow the industry time to upgrade 
existing equipment. In a second set of comments (August 4, 1995) 
submitted in response to FRA questions, AAR suggested a further 
alternative to the proposed 20-mph speed restriction for improving the 
mechanical state of existing MOW equipment. This alternative involved 
the creation and application of a System Safety Quality Assurance 
(SSQA) performance standard based on train accidents per million-train-
miles. Under this approach, a railroad's failure to operate within the 
established SSQA standard would result in FRA's imposition of certain 
equipment and operational requirements on that railroad, provided there 
is a link between the imposed requirements and the safety problem.
    Although the ASLRRA did not believe any change to part 215 was 
justified, it recommended that if FRA determines a speed restriction is 
necessary, that the restriction should be 25 mph rather than 20 mph as 
proposed. ASLRRA stated that 25 mph would be consistent with operations 
over FRA Class 2 track and would reduce the burden being imposed on 
many short line operations because a larger number of such railroads 
already operate at restricted speeds. ASLRRA asserted that it would be 
a significant expense for most smaller railroads to bring MOW equipment 
into compliance with part 215 and, thus, most smaller railroads would 
comply with any imposed speed restriction. Furthermore, a 25-mph speed 
limit would avoid confusion with existing federal track standards and 
would reduce the number of rules with which small railroads must deal.
    Comments received from the DMIR, in response to the NPRM, contended 
that there would be a significant impact on its operation if self-
propelled MOW equipment (ballast regulators, tampers, high-rails, yard 
cleaners, motor cars, etc.) were required to comply with the 
requirements contained in the FCSS as proposed. DMIR asserted that 
virtually none of its self-propelled MOW equipment operates in revenue 
trains and, thus, did not pose the hazard FRA was attempting to address 
in the NPRM. Consequently, DMIR believed there was no safety benefit in 
requiring self-propelled MOW equipment to comply with the requirements 
of the FCSS when operated over 20 mph.
    Comments received from BMWE and BRC supported the proposal to the 
extent that all MOW equipment should be covered by the provisions 
contained in the FCSS. These commenters generally contended that all 
equipment operated by the railroads should be required to comply with 
the FCSS whether or not they are used in revenue service, including 
equipment used solely in work train service. BRC believed that the 
proposed 20-mph speed restriction would not improve safety because most 
MOW equipment is not safe to operate at any speed if it does not comply 
with the FCSS. They asserted that no operating restrictions justify the 
use of equipment not in compliance with part 215.
    In April 1996, subsequent to the closing of the comment period on 
the NPRM in this proceeding, FRA established the Railroad Safety 
Advisory Committee (RSAC), which is composed of representatives from 
railroad management, railroad labor, FRA, and other interested 
organizations. RSAC is designed to cooperatively address safety

[[Page 14667]]

problems based upon agreed-upon facts and, where regulation appears 
necessary, recommend to FRA regulatory options to implement the needed 
solutions. In September of 1997, FRA proposed that the RSAC accept the 
task of recommending revisions to part 215 as it pertains to MOW 
equipment. Had RSAC accepted the task, FRA would have withdrawn the 
NPRM to permit RSAC to work from a clean slate. The full RSAC could not 
reach consensus regarding acceptance of the task and, thus, the RSAC 
rejected the task of revising part 215. Many members of the RSAC did 
not believe that the issues raised in this proceeding involved a safety 
priority when compared to other tasks being addressed by the committee. 
In a late submission to the docket (January 1998), BMWE urged FRA to 
pursue this issue through traditional rulemaking despite the RSAC's 
rejection of the task. The BMWE further recommended that an additional 
amendment be made to part 215 which would prohibit employees or 
personnel from riding on, occupying, or being transported in equipment 
not meeting the requirements contained in part 215. BMWE believed this 
restriction should be imposed on all freight cars including those used 
exclusively in MOW service. Of course, such requirements would be well 
beyond the limited scope of the NPRM. After RSAC's rejection of the 
task, FRA allowed this proceeding to remain open while the agency 
pursued much higher regulatory priorities, including passenger 
equipment standards and revised freight power brake rules.
    After consideration of all the comments and information noted above 
and based on general observations made by FRA during the last eight 
years with regard to MOW equipment and the applicability of part 215 to 
such equipment, FRA believes that a number of conclusions can be drawn. 
FRA agrees that the data relied on when developing the NPRM in this 
proceeding is dated and likely does not represent the condition of MOW 
equipment currently being operated by most railroads. The data relied 
on when developing the NPRM was gathered between 1980 and 1987. Thus, 
much of the data, both inspection and accident, is close to or more 
than two decades old. Since publication of the NPRM, FRA believes that 
railroads have made a concerted effort to bring most MOW equipment 
closer to compliance with the requirements contained in part 215, 
particularly MOW equipment regularly operated in revenue trains. 
Moreover, since 1980, FRA is not aware of any accident or incident 
involving MOW equipment resulting in injury or fatality in which a 
contributing cause of the accident or incident was a condition not in 
compliance with part 215 on a piece of MOW equipment. Consequently, 
while not intending to imply that there is no need to address the 
mechanical condition of MOW equipment currently in use on the nation's 
railroad's, FRA does believe that MOW equipment is maintained in better 
condition, from a mechanical perspective, than it was 15 to 20 years 
ago.
    FRA further believes that any sustainable approach to the issues 
raised in this proceeding must be based on current, fact-based data 
which accurately captures both the safety need and the economic 
consequences of any course of action. Just as the safety benefits 
associated with this rulemaking have likely declined over time, 
similarly the costs of compliance have likely declined, as well. 
Further, many of the costs of concern to the railroads might very well 
be mitigated by continuing to except such equipment from the 50-year 
requirement. However, FRA recognizes that such assessments take 
considerable time and resources. In addition to simply gathering data, 
the agency must also determine whether the gathered data establishes a 
need for regulatory action and the form of that action. FRA believes 
that a rulemaking docket should not be left open and pending 
indefinitely while the agency determines whether or how such data 
gathering will be pursued or evaluated. Moreover, it must be stressed 
that MOW equipment remains subject to the FCSS if it is used in revenue 
service or is not stenciled and, under all circumstances, is subject to 
the federal regulations applicable to safety appliances and power 
brakes contained in parts 231 and 232, respectively. Thus, MOW 
equipment is continually inspected by railroads and monitored by FRA 
for compliance with those requirements as well as any other condition 
that may constitute an imminent safety risk to railroad employees or 
the public at large.
    In addition to FRA's concerns regarding the data relied on in this 
proceeding, FRA also believes that the NPRM did not fully consider all 
of the potential economic and operational impacts that the proposed 20-
mph speed restriction would have on the industry. FRA believes that 
several commenters in this proceeding raise valid concerns related to 
the impact of the proposal on MOW equipment over 50 years in age and 
the potential impact to the operation of a number of revenue trains. 
FRA also notes that a number of alternative approaches to the issues 
were provided in the comments received in response to the NPRM. 
Furthermore, several commenters recommended that additional 
restrictions be placed on certain MOW equipment or raised issues which 
were not fully explored or discussed in the NPRM which relate to the 
operation of MOW equipment. Therefore, should FRA develop fresh data 
and analysis which establishes a need for regulatory action, the 
content of that action is likely to be significantly different from 
that proposed in this NPRM and may focus on a variety of issues not 
contemplated in the current proceeding. Consequently, FRA believes that 
continuance of the present proceeding is neither productive nor useful 
at this time.

Termination of Rulemaking

    Based on the foregoing discussion, FRA has decided to terminate 
this rulemaking. While we note that this rulemaking has been useful in 
raising both FRA's and the industry's awareness of the issues related 
to the operation and safety of MOW equipment, FRA believes that it is 
not prudent to pursue this rulemaking, based on its present content, at 
this time. FRA will continue to monitor the condition and operation of 
MOW equipment and will assess the need, from a safety perspective, to 
pursue either regulatory or other less formal methods to ensure the 
safety of both railroad employees and the public as it relates to the 
use and operation of this equipment. In light of the foregoing, FRA is 
hereby terminating this rulemaking.

    Issued in Washington, DC on March 22, 2002.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 02-7364 Filed 3-26-02; 8:45 am]
BILLING CODE 4910-06-P