[Federal Register Volume 69, Number 38 (Thursday, February 26, 2004)]
[Rules and Regulations]
[Pages 8834-8839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4251]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2000-8156, Notice No. 3]
RIN 2130-AB28


Roadway Maintenance Machine Safety

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document responds to petitions for reconsideration of 
FRA's July 28, 2003 final rule which prescribed safety standards for 
railroad on-track roadway maintenance machines and hi-rail vehicles. 
This document amends and clarifies the final rule.

DATES: Effective Date: The amendments to the final rule are effective 
April 26, 2004.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments and petitions for reconsideration received, go to 
http://dms.dot.gov at any time or to Room PL-401 on the plaza level of 
the NASSIF Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Allison H. MacDowell, Staff Director, 
Office of Safety Enforcement, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590 (telephone: 
202-493-6236); Allen Ludwig, Track Safety Specialist, Office of Safety 
Enforcement, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Mail Stop 25, Washington, DC 20590 (telephone: 202-493-6474); or Daniel 
L. Alpert, Trial Attorney, Office of Chief Counsel, Federal Railroad 
Administration, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 
20590 (telephone: 202-493-6026).

SUPPLEMENTARY INFORMATION:

Introduction

    On July 28, 2003, FRA published a final rule that prescribed safety 
standards for railroad on-track roadway maintenance machines and hi-
rail vehicles. See 68 FR 44388. The final rule originated from a 1990 
petition for rulemaking by the Brotherhood of Maintenance of Way 
Employees (BMWE) and was the product of a rulemaking effort conducted 
under the

[[Page 8835]]

auspices of FRA's Railroad Safety Advisory Committee (RSAC).

RSAC Overview

    As background, RSAC provides a forum for developing consensus 
recommendations on rulemaking and other safety program issues, and 
includes representatives from all of FRA's major customer groups, 
including railroads, labor organizations, suppliers and manufacturers, 
and other interested parties. When appropriate, FRA assigns a task to 
RSAC, and after consideration and debate, RSAC may accept or reject the 
task. If accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. The working group may establish one or more 
task forces or other subgroups to develop facts and options on a 
particular aspect of a given task. The task force or other subgroup 
reports to the working group. If a working group comes to unanimous 
consensus on recommendations for action, the package is presented to 
the RSAC for a vote. If the proposal is accepted by a simple majority 
of RSAC, the proposal is formally recommended to FRA. FRA then 
determines what action to take on the recommendation.
    Because FRA staff is actively involved at the working group and 
subgroup levels in discussing issues and options and drafting proposed 
rule language, and because the RSAC recommendation constitutes the 
consensus of some of the industry's leading experts on a given subject, 
FRA is often favorably inclined toward the RSAC recommendation. 
However, FRA is in no way bound to follow the recommendation, and the 
agency exercises its independent judgment on whether the recommended 
rule achieves the agency's regulatory goal, is soundly supported, and 
is in accordance with policy and legal requirements. Often, FRA varies 
in some respects from the RSAC recommendation in developing the actual 
regulatory proposal. If the working group or RSAC is unable to reach 
consensus on recommendations for action, FRA moves ahead to resolve the 
issue through traditional rulemaking proceedings.

Proceeding to Date

    In 1996, FRA requested that RSAC address rulemaking revisions to 
the Track Safety Standards, found at 49 CFR part 213. RSAC agreed to 
the task and formed the Track Working Group to help develop the 
revisions. The Track Working Group decided by consensus that a new set 
of regulations addressing the safety of on-track roadway maintenance 
machines should be developed in a separate rulemaking. After 
publication of revisions to the Track Safety Standards in 1998, the 
Track Working Group appointed a six-member Task Group to help develop 
regulations addressing the safety of on-track roadway maintenance 
machines and hi-rail vehicles. The Task Group consisted of 
representatives from FRA, Association of American Railroads (AAR), 
BMWE, Norfolk Southern Railway Co., and an equipment supplier. The Task 
Group drafted proposed rule text which the Track Working Group 
recommended to the full RSAC for approval. RSAC approved the 
recommendations. FRA agreed that the recommendations provided a good 
basis for a proposed rule and subsequently published a Notice of 
Proposed Rulemaking (NPRM) on Roadway Maintenance Machine Safety on 
January 10, 2001. See 66 FR 1930.
    FRA received comments from five organizations in response to the 
proposed rule. In February 2002, the Task Group met with most of the 
commenters, as well as other representatives from the industry, to 
clarify and further discuss the comments and suggestions provided by 
the commenters. The Task Group, by unanimous vote, made recommendations 
to the Track Working Group as to how the final rule should respond to 
each of the comments. The Track Working Group presented these 
recommendations to the full RSAC, which also agreed with them by 
unanimous vote. FRA considered the comments received on the NPRM and 
the recommendations of RSAC in preparing the final rule. FRA largely 
adopted the recommendations of RSAC in preparing the final rule, as 
explained in the preamble to the rule. See 68 FR 44388.
    Following publication of the final rule, the AAR and the Union 
Pacific Railroad Company (UP) filed petitions seeking FRA's 
reconsideration and clarification of certain provisions of the rule. 
The specific issues raised by these petitioners, and FRA's response to 
their petitions, are discussed in detail in the ``Section-by-Section 
Analysis'' portion of the preamble, below. The ``Section-by-Section 
Analysis'' portion of the preamble addresses each provision of the 
final rule which FRA has amended or clarified. This will enable the 
regulated community to more readily compare this document with the 
preamble discussions contained in the final rule and will thereby aid 
in understanding the requirements of the rule.

Section-by-Section Analysis

Section 214.507 Required Safety Equipment for New On-Track Roadway 
Maintenance Machines

    This section contains requirements for safety equipment for all new 
on-track roadway maintenance machines. In the final rule, paragraph 
(a)(4) provided that all new on-track roadway maintenance machines have 
windshields made of safety glass or other material with similar 
properties, such as Lexan, as well as power windshield wipers. 68 FR 
44409. In cases where traditional windshield wipers are incompatible 
with the windshield material, the final rule provided that a suitable 
alternative be available that offers the operator of the machine an 
equivalent level of vision. Id.
    UP filed a petition seeking clarification whether the requirements 
of paragraph (a)(4) excluded those machines that would either require a 
windshield to be applied to a void space or otherwise provide no 
protection or other value to the operator. UP agreed that machines with 
enclosed cabs should be equipped with windshields to protect the 
operator, but raised the concern that there are many types of machines 
that either do not have the framework to accommodate a windshield or 
cannot practically be equipped with windshields. UP stated that such 
machines vary in weight from 10,000 to 30,000 pounds, are used in 
production gang consists, and do not travel long distances or at high 
speeds.
    UP submitted to the docket several pictures of an example of such a 
machine, a rail anchor applicator. According to UP, the machine weighs 
approximately 10,000 pounds and, by design, does not have an enclosed 
cab. UP explained that, while it is possible to install a windshield on 
one or both sides of the operator by building a framework for the 
windshield, such a windshield would exist only to comply with a 
regulation and would not provide any protection or other value to the 
operator. UP stated that such a windshield would be an obstacle to the 
safe operation of the machine because it would be constantly in the way 
when loading anchors and operating the machine. Further, UP stated that 
windows on such a machine could not practically be equipped with 
wipers, would be a constant cleaning problem, and could impair the 
operator's vision. In addition to rail anchor applicators, UP cited the 
following machines as not

[[Page 8836]]

appropriate for being equipped with windshields:
     Anchor spreaders;
     Anchor squeezers;
     Anchor remover machines;
     Multi-screw spiker machines;
     Multi-unscrew spiker machines;
     Multi drill/screw spiker machines;
     Production clip applicator/remover machines;
     Rail heater cars;
     Rail lifter production plate inserters;
     Spike driving machines;
     Spike puller machines; and
     Production profile grinders.
    UP added that the basic configuration of some of these machines may 
change in the future and that, if future design changes result in a 
need for, or added value of, a windshield, UP would support the 
installation of a windshield.
    Having reviewed UP's petition, FRA makes clear that it did not 
intend the rule to require that windshields be installed on all new on-
track roadway maintenance machines. FRA intended to require that when 
windows are installed on new on-track roadway maintenance machines, 
they are made of safety glass or other material with similar 
properties. In addition, FRA intended that all such machines with 
windshields have power windshield wipers or suitable alternatives that 
provide the operator an equivalent level of vision if windshield wipers 
are incompatible with the windshield material.
    Clearly, all machines with enclosed cabs, which necessarily require 
a windshield for the operator to see through, are subject to the 
requirements of this section. Yet, FRA does not intend to define the 
requirements of this section expressly in terms of machines with 
enclosed cabs. FRA believes its intent is more clearly conveyed by 
revising the text to state that the requirements of this paragraph 
apply only to new on-track roadway maintenance machines designed with 
windshields. FRA has amended the rule accordingly. Consequently, if a 
new on-track roadway maintenance machine is designed with a windshield, 
the windshield must be made of safety glass, or its equivalent, and be 
cleaned by power windshield wipers, or a suitable alternative means as 
appropriate.
    In regard to the rail anchor applicator and other on-track roadway 
maintenance machines cited by UP for exclusion from the requirements of 
this paragraph, such machines are not subject to this paragraph's 
requirements as long as they are not designed with windshields. Based 
on UP's representation that these machines are not designed with 
windshields, they are thereby excluded from the requirements of this 
paragraph as long as that representation remains true.

Section 214.513 Retrofitting of Existing On-Track Roadway Maintenance 
Machines; General

    This section specifies a schedule of retrofit items applicable to 
all existing on-track roadway maintenance machines. Pursuant to Sec.  
214.7, an existing on-track roadway maintenance machine is defined as 
any on-track roadway maintenance machine other than a new on-track 
roadway maintenance machine. Consequently, an existing on-track roadway 
maintenance machine is any on-track roadway maintenance machine in 
existence or ordered on or before December 26, 2003, or completed on or 
before September 27, 2004.
    Paragraph (a) of the final rule required that each roadway worker 
transported on an existing on-track roadway maintenance machine have a 
safe and secure position that also provides protection from moving 
parts of the machine that could entangle clothing or body extremities. 
See 68 FR 44409. Following publication of the final rule, it became 
clear to FRA that this paragraph should be combined with Sec.  
214.517(g) of the final rule. Section Sec.  214.517(g) also contained 
requirements for safe and secure positions for roadway workers riding 
on existing roadway maintenance machines. See 68 FR 44410. 
Specifically, Sec.  214.517(g), like all of Sec.  214.517, applied to 
existing on-track roadway maintenance machines manufactured on or after 
January 1, 1991, and required such machines to be equipped with 
handholds, handrails, or a secure seat or bench position for each 
roadway worker transported on the machine. Id.
    FRA believes it unnecessary and potentially confusing to have two 
requirements in two separate sections concerning safe and secure 
positions for roadway workers riding on existing on-track roadway 
maintenance machines. Although the final rule carried forward these 
same requirements as proposed in the NPRM, the requirements contained 
in Sec.  214.513(a) should have been combined with those contained in 
Sec.  214.517(g) of the final rule. For a position to be ``safe and 
secure'' for a roadway worker to ride on an existing on-track roadway 
maintenance machine, the position must necessarily have handholds or 
handrails, or both, which the worker may grasp, or a secure seat or 
bench on which the worker may sit. In fact, in the preamble discussion 
of Sec.  214.513(a) in the final rule, FRA stated that safe and secure 
positions include seats or foot platforms with handholds so that the 
roadway worker can maintain a stable and balanced position on the 
machine as it is moving down the track. See 68 FR 44397.
    As revised, Sec.  214.513(a) requires that each existing on-track 
roadway maintenance machine have a safe and secure position with 
handholds, handrails, or a secure seat or bench position for each 
roadway worker transported on the machine, and each such position shall 
be protected from moving parts of the machine. As noted above, FRA 
believes that this revision to Sec.  214.513(a) and consolidation of 
the rule do not substantively change the rule's requirements.

Section 214.517 Retrofitting of Existing On-Track Roadway Maintenance 
Machines Manufactured On or After January 1, 1991

    This section specifies requirements for existing on-track roadway 
maintenance machines manufactured on or after January 1, 1991. 
Consequently, on-track roadway maintenance machines manufactured prior 
to 1991 are exempt from the requirements contained in this section. 
Existing on-track roadway maintenance machines that are subject to the 
requirements of this section must conform to these requirements after 
March 28, 2005.
    Paragraph (b) of this section in the final rule provided that an 
existing on-track roadway maintenance machine have an operative heater 
when the ambient temperature is less than 50 degrees Fahrenheit, if the 
machine were or had been equipped with a heater. See 68 FR 44409, 
44410. In preparing the final rule, FRA had modified the text of the 
proposed rule which, in part, specifically applied to a machine 
``equipped with a heater by the manufacturer.'' See 66 FR 1944. FRA's 
modification to the text of the proposed rule made clear that the 
requirement also applied to machines that had previously been equipped 
with heaters that had since been removed. In addition, FRA revised the 
text that limited the application of this section to heaters equipped 
by the manufacturers of the on-track roadway maintenance machines. FRA 
noted that heaters could have been installed after the machines were 
manufactured, and it was not evident to FRA why heaters installed after 
manufacture should not be subject to the requirements of this 
paragraph. See 68 FR 44399.
    In petitioning for reconsideration of this paragraph's 
requirements, the AAR

[[Page 8837]]

stated that FRA should not apply this paragraph's requirements to 
machines that are or have previously been equipped with unauthorized 
heaters installed by railroad employees. Therefore, the AAR suggested 
that FRA amend paragraph (b) by limiting its application to heaters 
``installed by the manufacturer or the railroad.'' FRA has adopted the 
AAR's suggestion. FRA recognizes that it did not intend to include 
within this paragraph's requirements heaters that had not been 
installed by the manufacturer or the railroad, and FRA believes that 
the suggested change fully addresses FRA's concern as stated in the 
final rule. As amended, paragraph (b) requires that each existing on-
track roadway maintenance machine manufactured on or after January 1, 
1991, have an operative heater when the machine is operated at an 
ambient temperature less than 50 degrees Fahrenheit and is equipped 
with, or has been equipped with, a heater installed by the manufacturer 
or the railroad.
    As discussed in the analysis of Sec.  214.513(a) above, FRA has 
removed paragraph (g) of Sec.  214.517. Please see the above discussion 
of Sec.  214.513(a) for a detailed explanation as to why this paragraph 
has been removed.

Section 214.518 Safe and Secure Positions for Riders

    This section contains the requirements for identifying safe and 
secure positions for roadway workers riding on on-track roadway 
maintenance machines. The final rule prohibits a roadway worker (other 
than the machine operator) from riding on any on-track roadway 
maintenance machine unless a safe and secure position for each roadway 
worker on the machine is clearly identified by stenciling, marking, or 
other written notice. See 68 FR 44410. The final rule also provided 
that this requirement become applicable as of the effective date of the 
final rule, September 26, 2003.
    The AAR petitioned for reconsideration of this section's 
applicability date. The AAR pointed out that the proposed rule would 
have given railroads one year to implement the requirement to identify 
safe and secure positions for roadway workers riding on on-track 
roadway maintenance machines. See 66 FR 1944. The AAR noted that FRA 
decided not to defer implementation of the requirement in the final 
rule for one year because FRA found it less burdensome than the 
proposed requirement. See 68 FR 44400. The proposed rule would have 
required railroads to provide written notice on all roadway maintenance 
machines--to identify safe and secure positions for workers on machines 
permitted to transport them, as well as to make known the prohibition 
against riding on machines on which workers were not permitted to ride. 
Instead, the final rule requires railroads to provide written notice 
only on machines permitted to transport riders. Nonetheless, the AAR 
stated that a deferral of the applicability date is necessary. 
According to the AAR, in many cases railroads would be unable to use 
stencils or decals to comply with the requirement since they could not 
be designed, made, and applied in such a short time frame. Without a 
deferral of the applicability date, the AAR believed that railroads 
would be forced to use written documentation, and noted that written 
documentation may be less effective than more permanent indications 
such as stencils and decals. The AAR asserted that a six-month deferral 
of the applicability date would give railroads sufficient time to 
implement an effective program to apply stencils and decals. The AAR 
added that it would also give railroads time to apply these stencils 
and decals while maintenance is performed on roadway maintenance 
machinery that is out of service during the fall and winter months.
    Following the AAR's submission, FRA sought clarification as to 
whether the AAR intended exclusively to use stencils and decals to 
identify safety and secure riding positions on roadway maintenance 
machines--without the need to identify such positions on documents kept 
on the machines. The AAR stated that it expected stencils and decals to 
be used in the vast majority of cases because they are more 
``permanent.'' Nevertheless, the AAR believed the option to identify 
safe and secure riding positions on documents kept on the machines to 
be essential, because in some cases stencils or decals are not 
practical. The AAR cited the example of large machines that can hold 
many people, such as the P-811 tie laying machine, for which stencils 
or decals would not be sufficient to identify safe and secure positions 
for riders. The AAR stated that written instructions would be more 
effective to communicate where to ride on this type of machine, as well 
as on large and complex machines such as big tampers, liners, and 
undercutters. In addition, the AAR noted that there will be machines on 
which stencils and decals cannot be readily applied to identify safe 
and secure riding positions. In this regard, the AAR cited the example 
of a safe riding location consisting of a grated floor and a pole for a 
rider to hold, but without a logical place to apply a stencil or a 
decal identifying the proper place for riding on the machine.
    Having reconsidered the requirements of this section, FRA has to 
decided to defer this section's applicability date. As amended, the 
requirements of this section become applicable on or after March 1, 
2004. FRA understands from the AAR's submission that in the vast 
majority of cases railroads will use stencils or decals to identify 
safe and secure riding positions on roadway maintenance machines. FRA 
encourages the use of stencils or decals, or both, to identify safe and 
secure riding positions for workers on roadway maintenance machines. In 
addition, FRA recognizes that a significant number of roadway 
maintenance machines are out of service during the months of cold 
weather. Consequently, during this time, railroads would have the 
opportunity to stencil or apply decals to out-of-service roadway 
maintenance machines as they undergo normal maintenance, thereby 
minimizing the cost of compliance. FRA believes that deferring the 
applicability date to March 1, 2004, affords railroads sufficient time 
to stencil or apply decals to identify safe and secure riding positions 
on those machines they intend to so mark. Moreover, FRA expects that 
for those machines whose safe and secure riding positions will be 
identified on documents kept on the machines, and therefore will not 
necessitate the work of physically marking the positions, extending the 
applicability date to March 1, 2004, is clearly sufficient. (FRA notes 
that it makes no specific finding as to the impracticability or 
impracticality of stencilling or applying decals to the roadway 
maintenance machines cited by the AAR in its clarifying submission, as 
railroads continue to have the option of using documents kept on the 
machines to identify safe and secure riding positions in circumstances 
as they deem appropriate.)
    FRA makes clear that, even though it is extending the time to 
identify safe and secure positions for workers riding on roadway 
maintenance machines, it is not extending the time to provide the safe 
and secure positions themselves for workers riding on these machines. 
For instance, pursuant to Sec.  214.513, each ``existing'' on-track 
roadway maintenance machine must have a safe and secure position with 
handholds, handrails, or a secure seat or bench position for each 
roadway worker transported on the machine, as noted above. Each 
position must also be protected from moving parts of the machine. Since 
an ``existing'' on-track roadway maintenance machine is any

[[Page 8838]]

on-track roadway maintenance machine in existence or ordered on or 
before December 26, 2003, or completed on or before September 27, 2004, 
the regulation will continue to require that every worker riding a 
roadway maintenance machine be provided a safe and secure position. FRA 
is extending only the compliance date to identify such positions on the 
machines.

Section 214.521 Flagging Equipment for On-Track Roadway Maintenance 
Machines and Hi-rail Vehicles

    This section requires that flagging kits be available when on-track 
roadway maintenance machines and hi-rail vehicles are operated over 
trackage subject to a railroad operating rule requiring flagging. 
Flagging kits must comply with the requirements specified in the 
operating rules of the railroad over which the equipment is operated. 
This requirement applies to each on-track roadway maintenance machine 
and hi-rail vehicle that is operated alone or as the leading or 
trailing piece of equipment in a roadway work group operating under the 
same occupancy authority. Flagging kits are not required for roadway 
maintenance machines and hi-rail vehicles that are operated in the 
middle of a single roadway work group. However, the vehicles must be 
under the same occupancy authority to be considered part of a single 
group.
    Following publication of the final rule, FRA recognized that this 
section could state more clearly which equipment is subject to the 
requirements. Accordingly, FRA has slightly revised the rule text and 
changed the section's format to make the requirements clearer. However, 
FRA has made no substantive change to the requirements of this section. 
FRA has simply restated the requirements in a different way to make 
them more comprehensible.

Appendix A to Part 214--Schedule of Civil Penalties

    Appendix A to this part contains the schedule of civil penalties 
associated with violations of the regulations under subpart D to part 
214. FRA is making one change to this schedule in conformance with a 
change to Sec.  214.517, which is discussed above.

Regulatory Impact/Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Prior to issuing the July 28, 2003 final rule, FRA prepared and 
placed in the docket a regulatory analysis addressing the economic 
impact of the final rule. The rule was evaluated in accordance with 
existing policies and procedures and was considered to be non-
significant under both Executive Order 12866 and DOT policies and 
procedures (see 44 FR 11034, February 26, 1979). (For a more detailed 
discussion, see 68 FR 44405.) This response to the petitions for 
reconsideration of the final rule is likewise considered to be non-
significant under both Executive Order 12866 and DOT policies and 
procedures. This regulatory action generally clarifies the requirements 
contained in the rule or allows for greater flexibility in complying 
with the rule. In particular, deferring the applicability date of Sec.  
214.518 will reduce the cost of complying with the rule. However, the 
actual cost reduction has not been calculated. Nevertheless, this 
regulatory action will have a minimal net effect on FRA's original 
analysis of the benefits and costs associated with the final rule.

Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 require a review of rules to assess their impact 
on small entities. Prior to issuing the July 28, 2003 final rule, FRA 
prepared and placed in the docket a Regulatory Flexibility Assessment 
(RFA) which assessed the small entity impact by the rule. FRA certified 
that the final rule is not expected to have a ``significant'' economic 
impact on a ``substantial'' number of small entities under the 
Regulatory Flexibility Act and Executive Order 13272. (For a more 
detailed discussion, see 68 FR 44405, 44406.) This response to the 
petitions for reconsideration of the final rule generally clarifies the 
requirements contained in the rule or allows for greater flexibility in 
complying with the rule. Consequently, FRA certifies that this 
regulatory action is not expected to have a ``significant'' economic 
impact on a ``substantial'' number of small entities under the 
Regulatory Flexibility Act and Executive Order 13272. FRA concludes 
that there are no substantial economic impacts on small units of 
government, business, or other organizations arising from this 
regulatory action.

Paperwork Reduction Act

    This response to the petitions for reconsideration of the final 
rule changes none of the information collection requirements contained 
in the final rule. It changes neither any individual requirement's 
burden nor the total burden for this collection of information.

Environmental Impact

    FRA has evaluated this response to the petitions for 
reconsideration of the final rule in accordance with its procedures for 
ensuring full consideration of the environmental impact of FRA actions, 
as required by the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.), other environmental statutes, Executive Orders, and DOT Order 
5610.1c. This regulatory action meets the criteria that establish this 
as a non-major action for environmental purposes.

Federalism Implications

    FRA has analyzed this response to the petitions for reconsideration 
of the final rule in accordance with the principles and criteria 
contained in Executive Order 13132 issued on August 4, 1999, which 
directs Federal agencies to exercise great care in establishing 
policies that have federalism implications. See 64 FR 43255. In the 
NPRM, FRA acknowledged that the rule as proposed could have federalism 
implications. The governance of safety of hi-rail vehicles could have 
an unintended effect on State laws addressing the safety of these 
vehicles as they are operated over roads and highways, even though the 
rule is meant to cover the safety of hi-rail vehicles only while they 
are operated on railroad tracks. Although the requirements for hi-rail 
vehicles are not intended to preempt any State laws addressing motor 
vehicles, FRA requested comment concerning what State laws, if any, 
could be impacted by this rule. FRA received no comment in response to 
the request.
    The RSAC, which recommended the proposed rule, has as permanent 
members two organizations representing State and local interests: the 
American Association of State Highway and Transportation Officials and 
the Association of State Rail Safety Managers. The RSAC regularly 
provides recommendations to the FRA Administrator for solutions to 
regulatory issues that reflect significant input from its State 
members. In light of the above, FRA concludes that this response to the 
petitions for reconsideration of the final rule has no federalism 
implications.

Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) 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

[[Page 8839]]

requirements specifically set forth in law.'' (See Section 201). 
Section 202 of the Act further requires that ``before promulgating any 
general notice of proposed rulemaking that is likely to result in 
promulgation of any rule that includes any Federal mandate that may 
result in the 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 one 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. This response to the petitions for reconsideration 
of the final rule will not result in the expenditure, in the aggregate, 
of $100,000,000 or more in any one year, and thus preparation of a 
statement is not required.

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355; May 22, 2001. Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency 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 response to the petitions for reconsideration of the final rule in 
accordance with Executive Order 13211. FRA has determined that this 
regulatory action is not likely to have a significant adverse effect on 
the supply, distribution, or use of energy. Consequently, FRA has 
determined that this regulatory action is not a ``significant energy 
action'' within the meaning of the Executive Order.

Privacy Act

    Anyone is able to search the electronic form of all public 
submissions to any of our dockets by the name of the individual making 
the submission (or signing the submission, if made on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or by visiting 
http://dms.dot.gov.

List of Subjects in 49 CFR Part 214

    Bridges, Occupational safety and health, Penalties, Railroad 
safety, Reporting and record keeping requirements.

The Final Rule

0
In consideration of the foregoing, chapter II, subtitle B of title 49, 
Code of Federal Regulations is amended as follows:

PART 214--[AMENDED]

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

    Authority: 49 U.S.C. 20103, 20107 and 49 CFR 1.49.


0
2. Section 214.507 is amended by revising paragraph (a)(4) to read as 
follows:


Sec.  214.507  Required safety equipment for new on-track roadway 
maintenance machines.

    (a) * * *
    (4) A windshield with safety glass, or other material with similar 
properties, if the machine is designed with a windshield. Each new on-
track roadway maintenance machine designed with a windshield shall also 
have power windshield wipers or suitable alternatives that provide the 
machine operator an equivalent level of vision if windshield wipers are 
incompatible with the windshield material;
* * * * *

0
3. Section 214.513 is amended by revising paragraph (a) to read as 
follows:


Sec.  214.513  Retrofitting of existing on-track roadway maintenance 
machines; general.

    (a) Each existing on-track roadway maintenance machine shall have a 
safe and secure position with handholds, handrails, or a secure seat or 
bench position for each roadway worker transported on the machine. Each 
position shall be protected from moving parts of the machine.
* * * * *

0
4. Section 214.517 is amended by revising paragraph (b) as follows and 
removing paragraph (g):


Sec.  214.517  Retrofitting of existing on-track roadway maintenance 
machines manufactured on or after January 1, 1991.

* * * * *
    (b) An operative heater, when the machine is operated at an ambient 
temperature less than 50 degrees Fahrenheit and is equipped with, or 
has been equipped with, a heater installed by the manufacturer or the 
railroad.
* * * * *

0
5. Section 214.518 is amended by revising it to read as follows:


Sec.  214.518  Safe and secure positions for riders.

    On or after March 1, 2004, a roadway worker, other than the machine 
operator, is prohibited from riding on any on-track roadway maintenance 
machine unless a safe and secure position for each roadway worker on 
the machine is clearly identified by stenciling, marking, or other 
written notice.

0
6. Section 214.521 is amended by revising it to read as follows:


Sec.  214.521  Flagging equipment for on-track roadway maintenance 
machines and hi-rail vehicles.

    Each on-track roadway maintenance machine and hi-rail vehicle shall 
have on board a flagging kit that complies with the operating rules of 
the railroad if:
    (a) The equipment is operated over trackage subject to a railroad 
operating rule requiring flagging; and
    (b)(1) The equipment is not part of a roadway work group; or
    (2) The equipment is the lead or trailing piece of equipment in a 
roadway work group operating under the same occupancy authority.

0
7. Appendix A to part 214 is amended by removing the entry for section 
214.517(g).

    Issued in Washington, DC on February 9, 2004.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 04-4251 Filed 2-25-04; 8:45 am]
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