Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Proposed Rules 79973 

1The present value of costs and cost savings 

flows are calculated in this analysis (over a 10-year 

period) because PV provides a way of converting 

future amounts into equivalent dollars today. The 

formula used to calculate these flows is: 1/(1+r)∧t, 

where ‘‘r’’ is the discount rate, and ‘‘t’’ is the year. 

Discount rates of 3 and 7 percent are used in this 

analysis. 

information unless you provide it in the 

body of your comment. If you send an 

email comment directly to EPA without 

going through https:// 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties, and cannot 

contact you for clarification, EPA may 

not be able to consider your comment.- 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. EPA encourages electronic 

submittals, but if you are unable to 

submit electronically, please reach out 

to the EPA contact person listed in the 

notice for assistance. You can view and 

copy the documents that form the basis 

for this codification and associated 

publicly available materials either 

through www.regulations.gov or at the 

EPA Region 1 Office, 5 Post Office 

Square, 1st floor, Boston, MA 02109– 

3912. The facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding Federal holidays and facility 

closures due to COVID–19. We 

recommend that you telephone Andrea 

Beland, RCRA Waste Management, UST, 

and Pesticides Section, at (617) 918– 

1313, before visiting the Region 1 office. 

Interested persons wanting to examine 

these documents should make an 

appointment with the office at least two 

weeks in advance. 

FOR FURTHER INFORMATION CONTACT: 

Andrea Beland, (617) 918–1313, 

beland.andrea@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

additional information, see the direct 

final rule published in the ‘‘Rules and 

Regulations’’ section of this Federal 

Register. 

Authority: This proposed rule is issued 

under the authority of Sections 2002(a), 9004, 

and 7004(b) of the Solid Waste Disposal Act, 

as amended, 42 U.S.C. 6912, 6991c, 6991d, 

and 6991e. 

Dated: November 10, 2020. 

Dennis Deziel, 

Regional Administrator, EPA Region 1. 

[FR Doc. 2020–25832 Filed 12–10–20; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 214 

[Docket No. FRA–2019–0074] 

RIN 2130–AC78 

Railroad Workplace Safety 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FRA is proposing to revise its 

regulations governing railroad 

workplace safety to: Allow for the use 

of alternative security standards for 

electronic display systems used to view 

track authority information for roadway 

worker safety, and exempt certain drone 

roadway maintenance machines from 

existing environmental control 

requirements. These proposals would 

reduce regulatory burdens on the 

railroad industry while maintaining the 

existing level of safety. 

DATES: Written comments must be 

received by February 9, 2021. 

Comments received after that date will 

be considered to the extent practicable. 

FRA anticipates being able to resolve 

this rulemaking without a public, oral 

hearing. However, if FRA receives a 

specific request for a public, oral 

hearing prior to January 11, 2021, one 

will be scheduled and FRA will publish 

a supplemental notice in the Federal 

Register to inform interested parties of 

the date, time, and location of any such 

hearing. 

ADDRESSES: Comments: Comments 

related to Docket No. FRA–2019–0074 

may be submitted by any of the 

following methods: 

• Website: Federal eRulemaking 

Portal, www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue SE, W12–140, 

Washington, DC 20590. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking. Note 

that all comments received will be 

posted without change to 

www.regulations.gov, including any 

personal information. Please see the 

Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for information related to 

any submitted comments or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to 

www.regulations.gov at any time. 

FOR FURTHER INFORMATION CONTACT: 

Lance Hawks, Track Specialist, Office of 

Railroad Safety, Federal Railroad 

Administration, 1200 New Jersey 

Avenue SE, Washington, DC 20590, 

telephone: 678–633–7400, email: 

Lance.Hawks@dot.gov; or Sam Gilbert, 

Attorney Adviser, Office of Chief 

Counsel, Federal Railroad 

Administration, 1200 New Jersey 

Avenue SE, Washington, DC 20590, 

telephone: 202–493–0270, email: 

Samuel.Gilbert@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

To streamline and update existing 

rules, agencies periodically review and 

propose amendments to their 

regulations. Various statues and 

Executive Orders also encourage or 

require such review with an emphasis 

on cost-savings. See, e.g., 5 U.S.C. 610; 

Executive Order 13771, Reducing 

Regulation and Controlling Regulatory 

Costs, 82 FR 9339, Jan. 30, 2017. 

Increasingly, the railroad industry has 

also petitioned FRA to amend its safety 

regulations to acknowledge and reflect 

technological innovations that improve 

operational efficiencies. Within this 

context, FRA reviewed its 49 CFR part 

214—Railroad Workplace Safety 

regulations. FRA identified potential 

amendments to subparts C and D of part 

214 addressing Roadway Worker 

Protection and On-Track Roadway 

Maintenance Machines and Hi-Rail 

Vehicles, respectively, that would lead 

to operational efficiencies and costsavings. FRA expects these amendments 

can be implemented without 

compromising safety. Accordingly, FRA 

is proposing to amend § 214.322 to 

allow the use of alternative security 

standards for electronic display systems 

to view track authority information, and 

amend § 214.505 to exempt certain 

drone roadway maintenance machines 

from environmental control 

requirements. FRA expects that these 

proposals would reduce regulatory 

burdens on the railroad industry 

without impacting safety. 

FRA estimates that railroads would 

experience approximately $5,900 in cost 

savings over the ten-year period of this 

analysis. The present value (PV) 1 of this 


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2 ‘‘Authentication’’ is the process through which 

the identity of an individual user, or ‘‘subject,’’ is 

validated. 

cost savings, when discounted at 3- and 

7-percent, is approximately $5,000 and 

$4,100, respectively. The annualized 

cost savings is estimated to be 

approximately $590 at both discount 

rates. The table below presents the 

estimated 10-year total cost savings 

associated with the proposed rule. 

TABLE I–1—TOTAL 10-YEAR COST SAVINGS

[2018 Dollars] 

Present value 

3% 

Present value 

7% 

Annualized 

3% 

Annualized 

7% 

Total Cost Savings .......................................................................................... $5,045 $4,139 $591 $589 

Because this proposed rulemaking 

provides railroads the flexibility to 

utilize an updated National Institute of 

Standards and Technology (NIST) 

standard for electronic display systems 

at their discretion, and codifies an 

existing waiver, FRA estimates that 

there will be no costs associated with 

this proposed rulemaking. 

II. Background and Overview of the 

Proposals 

Exclusive Track Occupancy Track 

Authority Electronic Display Systems 

When a roadway worker or work 

group establishes exclusive track 

occupancy working limits, and an 

electronic display device is used to view 

track authority information for that 

worker or work group, § 214.322(h) 

requires the device to meet the security 

standards of NIST Special Publication 

800–63–2, Electronic Authentication 

Guideline, ‘‘Computer Security,’’ 

August 2013 (2013 Standard).2

Under § 214.322(h), new electronic 

display systems must provide Level 3 

assurance as defined by the 2013 

Standard, i.e., they must provide multifactor remote network authentication 

(for example, a password or a biometric 

factor, such as a fingerprint, used in 

combination with a software or 

hardware token). FRA incorporated this 

2013 Standard into part 214 based on 

the agency’s determination that the 

standard ‘‘provides technical guidelines 

for widely used methods of electronic 

authentication, and is reasonably 

available to all interested parties online 

. . . or by contacting NIST,’’ and that 

Level 3 assurance, specifically, 

‘‘requires . . . stringent identity 

proofing and multi-factor 

authentication.’’ 81 FR 37840, 37869 

(June 10, 2016). 

Since adoption of § 214.322(h), NIST 

has updated its computer security 

standards several times in separate 

documents addressing the various 

components of identity assurance. See, 

e.g., SP 800–63–3 (Digital Identity 

Guidelines) (last updated March 2, 

2020); SP 800–63A (Enrollment & 

Identity Proofing) (last updated March 

2, 2020); SP 800–63B (Authentication & 

Lifecycle Management) (last updated 

March 2, 2020); SP 800–63C (Federation 

& Assertions) (last updated March 2, 

2020). Recognizing that computer 

security standards change, and that 

other standards may also provide multifactor authentication, FRA is providing 

additional flexibility for meeting the 

electronic authentication requirements 

of § 214.322(h). As discussed in more 

detail below, FRA is proposing a new 

paragraph (i), which provides that 

paragraph (h)’s requirements may be 

satisfied so long as an electronic display 

system uses multi-factor authentication. 

Drone Waiver Incorporation 

FRA may waive compliance with its 

regulations. See 49 U.S.C. 20103(d) 

(‘‘The Secretary [of Transportation] may 

waive compliance with any part of a 

regulation prescribed or order issued 

under this chapter if the waiver is in the 

public interest and consistent with 

railroad safety.’’); see also 49 CFR 

1.89(a). FRA implemented regulations to 

exercise this authority under subpart C 

to 49 CFR part 211, which provides a 

process and requirements for receiving 

and responding to waiver petitions. 

Each properly filed petition for a 

permanent or temporary waiver of a 

safety rule, regulation, or standard is 

referred to the FRA Railroad Safety 

Board (Board) for decision. See 

§ 211.41(a). The Board’s decision is 

typically rendered after a notice is 

published in the Federal Register and 

an opportunity for public comment is 

provided. See § 211.41(b). If the Board 

grants a waiver petition, the Board may 

impose conditions on the grant of relief 

to ensure the decision is in the public 

interest and consistent with railroad 

safety. See § 211.41(c). 

Activity under a waiver of regulatory 

compliance may generate sufficient data 

and experience to support an expansion 

of its scope, applicability, and duration. 

For instance, in many cases, FRA has 

expanded the scope of certain waivers 

or issued the same or similar waivers to 

additional applicants. FRA has also 

extended various waivers’ expiration 

dates. A waiver’s success and its 

continued expansion may warrant 

consideration of regulatory codification. 

Codifying a waiver, and thereby making 

its exemptions and requirements 

universally applicable, can result in 

industry cost-savings larger than from 

the waiver alone. 

In this NPRM, FRA proposes to 

incorporate a longstanding waiver for 

certain roadway maintenance machines 

(RMM) from the environmental control 

and protection system requirements 

currently found in subpart D of part 214. 

Part 214 defines an RMM as ‘‘a device 

powered by any means of energy other 

than hand power which is being used 

on or near railroad track for 

maintenance, repair, construction or 

inspection of track, bridges, roadway, 

signal, communications, or electric 

traction systems.’’ Common types of 

RMMs include ballast regulators, 

tampers, mechanical brooms, rotary 

scarifiers, and undercutters. Each of 

these machines is typically operated by 

an individual occupying a cab mounted 

on the machine. 

Existing § 214.505(a) requires certain 

types of new RMMs to be equipped with 

enclosed cabs with heating, air 

conditioning, and positive pressurized 

ventilation systems. In 2008, Harsco 

Track Technologies, a railroad 

equipment manufacturer, requested a 

waiver of § 214.505(a) for a newly 

developed RMM designed to function 

without a dedicated operator located on 

the machine (i.e., a drone machine). See 

Docket No. FRA–2008–0070 (available 

at www.regulations.gov). Harsco’s 

tamper machine (i.e., a machine used to 

pack or ‘‘tamp’’ ballast under railway 

tracks) was designed to be operated by 

a person in the cab of a separate, 

‘‘leading’’ machine, such that the drone 

machine itself would not even be 

equipped with a cab. In support of its 

request for relief, Harsco explained that 

the leading machine in which the 

operator of the drone machine would sit 

would have a cab fully compliant with 

§ 214.505(a). 


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By notice in the Federal Register, 

FRA invited public comment on 

Harsco’s waiver request. The 

Brotherhood of Maintenance of Way 

Employes Division (BMWED) expressed 

the view that the drone machine must 

be ‘‘devoid of any operator controls or 

other capabilities that would allow it to 

be operated from a position on, beside, 

or in proximity to,’’ the machine. FRA 

granted Harsco the requested relief from 

214.505(a) for the operation of its drone 

tamper machine for an initial five-year 

period and conditioned the grant of 

relief on the following conditions: 

• The drone machine could only be 

operated by someone located in the cab 

of a lead machine with a § 214.505– 

compliant cab and this restriction was 

required to be clearly identified by 

stenciling, marking, or other written 

notice in a conspicuous location on 

each drone machine. 

• If, for maintenance and/or testing of 

the drone machine, the machine was 

operated outside of the main cab of the 

lead machine in a manner that would 

expose an employee to air 

contaminants, as outlined in 

Occupational Safety and Health 

Administration (OSHA) regulations 

defining exposure limits for various 

substances (29 CFR 1910.1000), the 

employee operating the machine was 

required to be protected in compliance 

with OSHA’s personal respiratory 

protection regulations (29 CFR 

1910.134). 

• Employees were prohibited from 

being on the machine during operation. 

• The machine was not physically 

equipped with controls that would 

allow the equipment to be operated. 

• Harsco maintained a list of the 

equipment subject to the waiver. 

Since granting the initial waiver in 

2008, at Harsco’s request, FRA has 

renewed the relief twice—in 2013 and 

2018. Harsco supported each request for 

relief by noting that no injuries or safety 

issues had been reported and that 

‘‘customers are pleased with the safety 

and performance of the drone tamper.’’ 

FRA has not independently received 

any reports of injuries related to the use 

of Harsco’s drone RMMs. 

In 2018, FRA added the condition that 

Harsco provide each purchaser of the 

drone tamper with a copy of the 

approved waiver. FRA estimates that 

approximately 30 drone RMMs have 

been used under the waiver. 

Given this safety record, FRA is 

proposing to amend subpart D of part 

214 to allow the use of drone RMMs 

similar to Harsco’s drone tamping 

machine without the requirement for a 

waiver from FRA’s regulations. 

III. Section-by-Section Analysis 

FRA seeks comments on all proposals 

made in this NPRM. 

Section 214.322 Exclusive Track 

Occupancy, Electronic Display 

Section 214.321(b) requires exclusive 

track occupancy authority to be 

transmitted to the roadway worker in 

charge by the train dispatcher or control 

operator in charge of the track, which 

may be done by data transmission. 

Many railroads use electronic devices to 

view these authorities, which must meet 

the requirements of § 214.322. 

Recognizing the importance of the 

integrity and secure transmission of this 

data, paragraph (h) of existing § 214.322 

generally requires new electronic 

display systems used to view track 

authorities to meet NIST’s 2013 

authentication standard discussed 

above. Specifically, existing paragraph 

(h) requires new electronic display 

systems to provide Level 3 assurance as 

defined by the 2013 Standard (i.e., 

provide multi-factor remote network 

authentication), while electronic display 

systems implemented prior to July 1, 

2017, must provide Level 2 assurance as 

defined by the 2013 Standard (i.e., 

single factor remote network 

authentication). Since FRA adopted this 

requirement, the 2013 Standard has 

been updated several times. To allow for 

the use of standards other than the 2013 

Standard’s Level 3 assurance that also 

provide multi-factor authentication, 

FRA proposes to add a new paragraph 

(i), which would provide that electronic 

display systems comply with paragraph 

(h) so long as they provide multi-factor 

authentication for digital authentication 

of the subject. Examples of multi-factor 

authentication include, but are not 

limited to, a password or biometric 

factor (e.g., fingerprint or voice pattern) 

used in combination with a one-time 

PIN sent to the subject’s mobile phone. 

FRA does not intend this proposed 

revision to change the substance of 

paragraph (h)’s current requirement, or 

require that the authentication 

standards already in use for existing 

electronic display systems be changed. 

Instead, FRA intends this revision to 

allow industry to adopt new and 

improved authentication technologies 

that also provide multi-factor 

authentication. 

A railroad using an electronic display 

system with multi-factor authentication 

that employs a standard other than the 

2013 Standard would not have to notify 

FRA of its choice or file any supporting 

documentation with FRA. However, in 

exercising its enforcement authority, 

FRA may request documentation or 

other evidence from a railroad using an 

alternative standard demonstrating that 

the standard provides multi-factor 

authentication to determine compliance 

with the requirement. 

Section 214.505 Required 

Environmental Control and Protection 

Systems for New On-track Roadway 

Maintenance Machines With Enclosed 

Cabs 

As discussed above, technological 

developments since the promulgation of 

§ 214.505 have led to the use of drone 

RMMs that do not possess operator 

controls, or a position on the machine 

for an operator to be located. The 

purpose of the cab on an RMM is to 

protect the operator from the harmful 

airborne contaminants produced by the 

work operations (e.g., silica ballast dust) 

and excessive noise produced by the 

machine itself. Such environmentally 

controlled cabs are expensive to install 

and maintain, but without an operator 

on the machine to protect, serve no 

purpose. Accordingly, as discussed in 

the Background section above, FRA 

proposes to incorporate into part 214 

the longstanding waiver from the 

requirements of § 214.505 that allows 

for the use of drone RMMs. FRA is not 

aware of any safety issues or injuries 

resulting from the use of these drone 

machines operated under the conditions 

of the waiver. 

Specifically, FRA proposes to add 

new paragraph (i) to existing § 214.505 

to allow for the use of drone RMMs. The 

proposed requirements of new 

paragraph (i) are consistent with the 

conditions of the waiver discussed in 

the Background section above, which 

currently allows for the use of certain 

drone RMMs on a limited basis. 

Paragraph (i) would specify that existing 

paragraph (a) of § 214.505 (requiring 

certain RMMs to be equipped with 

operational heating, air conditioning, 

and ventilation systems) does not apply 

to RMMs that are not capable of 

performing work functions other than 

by remote operation and are equipped 

with no operating controls. Instead, 

proposed new paragraph (i) would 

require that if a drone RMM is operated 

from the cab of a separate machine, that 

cab must be compliant with paragraph 

(a) of § 214.505, and if a drone RMM is 

operated outside of the cab of a separate 

machine in a way that will expose the 

operator to air contaminants, the 

operator must be protected in 

accordance with OSHA’s regulations. 

Further, proposed new paragraph (i) 

prohibits a person from being on a 

drone RMM while it is operating and 

requires drone RMMs to be clearly 

marked to indicate the potential hazards 


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of the machine being operated from a 

distance or that the machine may move 

automatically. FRA is not prescribing a 

specific marking requirement, instead 

§ 214.505(i) requires any marking to 

provide notice that roadway workers 

should stay clear of the equipment 

because it may move automatically, and 

that no person may be on the equipment 

while it is operating. 

FRA requests comment on the 

proposed revisions to § 214.505 

allowing for the use of drone RMMs. 

IV. Regulatory Impact and Notices 

Executive Order 12866, Executive Order 

13771, and DOT Regulatory Policies and 

Procedures 

This proposed rule is not a significant 

regulatory action within the meaning of 

Executive Order (E.O.) 12866, 

‘‘Regulatory Planning and Review,’’ and 

DOT’s Administrative Rulemaking, 

Guidance, and Enforcement Procedures 

in 49 CFR part 5. This proposed rule is 

expected to result in a deregulatory 

action under E.O. 13771, ‘‘Reducing 

Regulation and Controlling Regulatory 

Costs.’’ 

FRA proposes to revise its regulations 

governing the minimum safety 

requirements for railroad workplace 

safety. The proposed changes amend 

part 214 to permit the use of alternative 

security standards for electronic display 

systems used to view track authority 

information in § 214.322, and, 

consistent with an existing waiver, 

exempt certain drone roadway 

maintenance machines from 

environmental control requirements in 

§ 214.505(a), which include heating, air 

conditioning, and ventilation systems. 

Costs 

Electronic Display Systems 

Section 214.322(h) requires that 

electronic display systems used to view 

track authority information meet the 

security standards defined by NIST 

Special Publication 800–63–2, 

Electronic Authentication Guideline, 

‘‘Computer Security.’’ August 2013. 

FRA proposes to allow electronic 

display systems subject to § 214.322 to 

use alternative standards for electronic 

authentication, provided those systems 

require stringent identity proofing 

through multi-factor authentication. 

FRA expects no additional costs for this 

proposed requirement as it is simply 

adding flexibility. 

Drone Waiver Incorporation 

As discussed above, FRA approved 

Harsco’s 2008 waiver petition for a fiveyear period with conditions, and has 

since renewed waivers in 2013 and 

2018. FRA expects no additional costs 

for this proposed requirement because 

FRA is codifying a long-standing 

waiver. 

Cost Savings 

The proposed rule would be 

beneficial for regulated entities seeking 

to use electronic display systems that 

meet alternative standards for electronic 

authentication and provide a 

comparable or better level of identity 

proofing and digital authentication as 

that required by the 2013 NIST Special 

Publication. The proposed rule would 

also reduce the regulatory burden on 

regulated entities by providing relief 

from submitting waivers to FRA for the 

use of certain roadway maintenance 

machines. 

FRA has estimated that cost savings of 

this proposed rule will result due to 

waiver codification, as the proposed 

rule would reduce the need for industry 

to submit waivers. These estimates 

assume that, without the proposed 

regulation, Harsco Track Technologies 

would continue submitting petitions for 

extending the waiver, which would 

occur every five years. The last renewal 

was approved in 2018. To date, Harsco 

has been the sole entity requesting this 

waiver from FRA, and FRA does not 

expect any other entities to apply for 

similar waivers over the period of 

analysis. 

FRA assumes that the cost for Harsco 

to prepare and submit each waiver 

would be approximately the same as it 

is for FRA to process it. FRA seeks 

comments on this assumption. To 

estimate the cost savings associated 

with this waiver, FRA estimated the 

labor hours required for FRA to review 

and approve each waiver. Table IV–1 

below displays the breakdown of the 

waiver review and submission cost for 

each waiver. 

TABLE IV–1—WAIVER SUBMISSION COSTS

Title Pay grade Wage rate 

Burdened 

wage rate 

(wages × 1.75) 

Hours Total wages 

FRA Field Inspector ............................................................. GS–12 $47.82 $83.69 8 $669.48 

Administrative Assistant (Field Office) ................................. GS–12 47.82 83.69 4 334.74 

Administrative Assistant (DC) .............................................. GS–9 30.54 53.45 4 213.78 

Motive Power and Equipment Specialist (DC) .................... GS–14 62.23 108.90 16 1,742.44 

Total FRA Labor Cost per Renewal Waiver ................. ........................ ........................ ........................ ........................ 2,960.44 

For purposes of estimating waiver 

costs for this analysis, FRA estimates 

the associated renewals that would 

occur over the next 10 years. Table IV– 

2 shows the total cost savings for 

regulated entities to review and submit 

waivers to FRA. 

TABLE IV–2—INDUSTRY WAIVER COST SAVINGS

Analysis year Number of 

waivers 

Cost savings 

(undiscounted) 

Cost savings 

(discounted 

3%) 

Cost savings 

(discounted 

7%) 

1 ....................................................................................................................... ........................ ........................ ........................ ........................

2 ....................................................................................................................... ........................ ........................ ........................ ........................

3 ....................................................................................................................... 1 $2,960 $2,709 $2,416 

4 ....................................................................................................................... ........................ ........................ ........................ ........................

5 ....................................................................................................................... ........................ ........................ ........................ ........................

6 ....................................................................................................................... ........................ ........................ ........................ ........................

7 ....................................................................................................................... ........................ ........................ ........................ ........................


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TABLE IV–2—INDUSTRY WAIVER COST SAVINGS—Continued 

Analysis year Number of 

waivers 

Cost savings 

(undiscounted) 

Cost savings 

(discounted 

3%) 

Cost savings 

(discounted 

7%) 

8 ....................................................................................................................... 1 2,960 2,337 1,723 

9 ....................................................................................................................... ........................ ........................ ........................ ........................

10 ..................................................................................................................... ........................ ........................ ........................ ........................

Total .......................................................................................................... ........................ 5,920 5,045 4,139 

Alternatives 

FRA is proposing this rulemaking to 

provide relief to regulated entities by 

allowing the use of alternative standards 

for electronic display systems to comply 

with § 214.322(h) and by not having to 

submit waivers to FRA. An alternative 

to this rulemaking would be to maintain 

the status quo. 

If FRA does not modify § 214.322, 

entities would continue to use the NIST 

2013 Special Publication as the standard 

for securing and transmitting data for 

electronic display systems. Although 

this standard is safe, FRA recognizes 

that updated NIST standards after the 

2013 Special Publication could allow 

the industry to adopt newly developed 

technologies and methods of data 

transmission that are still compliant 

with § 214.322(h) while providing 

comparable, or better, levels of security. 

In addition, absent this proposal, 

entities would be required to continue 

submitting waivers for the use of 

approved roadway maintenance 

machines and, therefore, would not 

receive the cost savings associated with 

not having to submit waivers. This 

would continue to be an unnecessary 

burden. FRA views the drone tamper 

machines as an example of using 

emerging modern technology to make 

railroad roadway maintenance safer and 

more efficient. FRA has verified that 

waivers allowing drone RMMs do not 

negatively impact safety because FRA 

has not seen an adverse impact to safety 

while railroads have been operating 

under this waiver. This waiver has 

given industry some relief from 

unnecessary requirements and eased 

their burden. Therefore, issuing this 

proposed regulation provides cost 

savings from avoiding petitioning for 

and processing waivers. 

Results 

FRA has estimated the cost savings of 

this proposed rule. The cost savings of 

this proposed rule are displayed in the 

table below. 

TABLE IV–3—TOTAL 10-YEAR COST SAVINGS

[2018 Dollars] 

Present value 

3% 

Present value 

7% 

Annualized 

3% 

Annualized 

7% 

Total Cost Savings .......................................................................................... $5,045 $4,139 $591 $589 

As noted in the table above, FRA 

estimates the total cost savings for this 

proposed rule to be approximately 

$5,000 (PV, 3-percent) and $4,100 (PV, 

7-percent). The annualized cost savings 

is estimated to be approximately $590 

(PV, 3-percent) and $590 (PV, 7- 

percent). 

Regulatory Flexibility Act 

When an agency issues a rulemaking 

proposal, the Regulatory Flexibility Act 

requires the agency to ‘‘prepare and 

make available for public comment an 

initial regulatory flexibility analysis’’ 

which will ‘‘describe the impact of the 

proposed rule on small entities.’’ 5 

U.S.C. 603(a). Section 605 of the RFA 

allows an agency to certify a rule, in lieu 

of preparing an analysis, if the proposed 

rulemaking is not expected to have a 

significant economic impact on a 

substantial number of small entities. 

This proposed rule directly affects all 

railroads, of which there are 

approximately 746 on the general 

system, and FRA estimates that 

approximately 93 percent of these 

railroads are small entities. Therefore, 

FRA has determined that this proposed 

rule will have an impact on a 

substantial number of small entities. 

However, FRA has determined that 

the impact on entities affected by the 

proposed rule will not be significant. 

The effect of the proposed rule will be 

to allow railroads the flexibility to 

choose the optimal electronic display 

equipment currently in the market, with 

the required level of security without 

having to notify or seek approval from 

FRA. Further, equipment manufacturers 

will no longer need to seek FRA 

approval to remove operator control 

stations to a remote piece of equipment, 

consistent with the established safety of 

a longstanding waiver. FRA expects the 

impact of the proposed rule will be a 

reduction in the paperwork burden for 

railroads and manufacturers, as well as 

future benefits from allowing 

continually advancing security 

standards to be incorporated without a 

regulatory change. FRA asserts that the 

economic impact of the reduction in 

paperwork, if any, will be minimal and 

entirely beneficial to small railroads. 

Accordingly, the FRA Administrator 

hereby certifies that this proposed rule 

will not have a significant economic 

impact on a substantial number of small 

entities. FRA invites comment from 

members of the public who believe 

there will be a significant impact on 

small railroads. 

Paperwork Reduction Act 

FRA is submitting the information 

collection requirements in this proposed 

rule to the Office of Management and 

Budget (OMB) for approval under the 

Paperwork Reduction Act of 1995, 44 

U.S.C. 3501, et seq. The sections that 

contain the proposed and current 

information collection requirements and 

the estimated time to fulfill each 

requirement are as follows: 


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CFR Section/subject Respondent universe Total annual responses Average time per response Total annual 

burden hours 

Total annual 

dollar cost 

equivalent 3

Form FRA F 6180.119—Part 214 Railroad Workplace Safety Violation Report.350 Safety Inspectors ........ 129 forms ........................... 4 hours ............................... 516 $29,412 

214.307—Railroad on-track safety programs—RR programs that comply with 

this part + copies at system/division 

headquarters.

741 railroads ...................... 276 programs + 325 copies 2 hours + 2 minutes .......... 563 42,788 

—RR notification to FRA not less 

than one month before on-track 

safety program takes effect.

741 railroads ...................... 276 notices ........................ 20 minutes ......................... 92 6,992 

—RR amended on-track safety programs after FRA disapproval.741 railroads ...................... 1 program .......................... 4 hours ............................... 4 304 

—RR written response in support of 

disapproved program.

741 railroads ...................... 1 written response ............. 20 hours ............................. 20 1,520 

214.309—RR publication of bulletins/notices reflecting changes in on-track 

safety manual.

60 railroads ........................ 100 bulletins/notices .......... 60 minutes ......................... 100 7,600 

214.311—RR written procedure to 

achieve prompt and equitable resolution of good faith employee challenges.

19 railroads ........................ 5 developed procedures .... 2 hours ............................... 10 760 

214.317—On-track safety procedures, 

generally, for snow removal, weed 

spray equipment, tunnel niche or clearing by.

19 railroads ........................ 5 operating procedures ..... 2 hours ............................... 10 760 

214.318—Procedures established by railroads for workers to perform duties incidental to those of inspecting, testing, 

servicing, or repairing rolling equipment.

741 railroads ...................... 19 rules/procedures ........... 2 hours ............................... 38 2,888 

214.320—Roadway maintenance machines movement over signalized noncontrolled track—RR request to FRA 

for equivalent level of protection to that 

provided by limiting all train and locomotive movements to restricted speed.

741 railroads ...................... 5 requests .......................... 4 hours ............................... 20 1,520 

214.322—Exclusive track occupancy, 

electronic display—Written authorities/ 

printed authority copy if electronic display fails or malfunctions.

3 Class I Railroads ............ 1,000 written authorities .... 10 minutes ......................... 167 9,519 

214.329—Train approach warning—Written designation of watchmen/lookouts.741 railroads ...................... 26,250 designations .......... 30 seconds ........................ 219 16,644 

214.336—Procedures for adjacent track 

movements over 25 mph: Notifications/ 

watchmen/lookout warnings.

100 railroads ...................... 10,000 notices ................... 5 seconds .......................... 14 798 

—Procedures for adjacent track 

movements 25 mph or less: Notifications/watchmen/lookout warnings.

100 railroads ...................... 3,000 notices ..................... 5 seconds .......................... 4 228 

214.339—Audible warning from trains: 

Written procedures that prescribe effective requirements for audible warning by horn and/or bells for trains.

19 railroads ........................ 19 written procedures ........ 4 hours ............................... 76 5,776 

214.343/345/347/349/351/353/355—Annual training for all roadway workers 

(RWs)—Records of training.

50,000 roadway workers ... 50,000 records ................... 2 minutes ........................... 1,667 126,692 

214.503—Notifications for non-compliant 

roadway maintenance machines or unsafe condition.

50,000 roadway workers ... 125 notices ........................ 10 minutes ......................... 21 1,197 

—Resolution procedures ................... 19 railroads/contractors ..... 5 procedures ...................... 2 hours ............................... 10 760 

214.505 Required environmental control 

and protection systems for new ontrack roadway maintenance machines 

with enclosed cabs.

741/200 railroads/contractors.500 lists ............................. 1 hour ................................ 500 38,000 

—Designations/additions to list ......... 692/200 railroads/contractors.150 additions/designations 5 minutes ........................... 13 988 

—Stenciling or marking of drone 

roadway maintenance machine 

(Revised requirement).

30 drones ........................... 10 stencils/displays ............ 5 minutes ........................... 1 57 

214.507—A-Built Light Weight on new 

roadway maintenance machines.

692/200 railroads/contractors.1,000 stickers/stencils ....... 5 minutes ........................... 83 4,731 

214.511—Required audible warning devices for new on-track roadway maintenance machines.692/200 railroads/contractors.3,700 identified mechanisms.5 minutes ........................... 308 17,556 

214.515—Overhead covers for existing 

on-track roadway maintenance machines.

692/200 railroads/contractors.500 + 500 requests + responses.10 + 20 minutes ................ 250 17,423 

214.517—Retrofitting of existing on-track 

roadway maintenance machines manufactured on or after Jan. 1, 1991.

692/200 railroads/contractors.500 stencils/displays .......... 5 minutes ........................... 42 2,394 

214.523—Hi-rail vehicles .......................... 692/200 railroads/contractors.5,000 records ..................... 5 minutes ........................... 417 23,769 

—Non-complying conditions .............. 692/200 railroads/contractors.500 tags + 500 reports ...... 10 minutes + 15 minutes ... 208 11,856 


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CFR Section/subject Respondent universe Total annual responses Average time per response Total annual 

burden hours 

Total annual 

dollar cost 

equivalent 3

214.527—Inspection for compliance—Repair schedules.692/200 railroads/contractors.550 tags + 550 reports ...... 5 minutes + 15 minutes ..... 183 10,431 

214.533—Schedule of repairs—Subject 

to availability of parts.

692/200 railroads/contractors.250 records ........................ 15 minutes ......................... 63 4,788 

Totals .......................................... 741 railroads ...................... 105,751 responses ............ N/A ..................................... 5,619 388,151 

3Throughout the tables in this document, the dollar equivalent cost is derived from the Surface Transportation Board’s Full Year Wage A&B data series using the 

appropriate employee group hourly wage rate that includes 75 percent overhead charges. 

All estimates include the time for 

reviewing instructions, searching 

existing data sources, gathering or 

maintaining the needed data, and 

reviewing the information. Pursuant to 

44 U.S.C. 3506(c)(2)(B), FRA solicits 

comments concerning: Whether these 

information collection requirements are 

necessary for the proper performance of 

the functions of FRA, including whether 

the information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. For 

information or a copy of the paperwork 

package submitted to OMB, contact Ms. 

Hodan Wells, Information Clearance 

Officer, at 202–493–0440. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Ms. Hodan Wells, 

Federal Railroad Administration, 1200 

New Jersey Avenue SE, 3rd Floor, 

Washington, DC 20590. Comments may 

also be submitted via email to Ms. Wells 

at the following address: Hodan.Wells@

dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

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. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

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, agencies may not issue a 

regulation with federalism 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. 

This proposed rule has been analyzed 

consistent with the principles and 

criteria in Executive Order 13132. This 

proposed rule would not have a 

substantial effect on the States or their 

political subdivisions; it would not 

impose any substantial direct 

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 proposed rule could 

have preemptive effect under certain 

provisions of the Federal railroad safety 

statutes, specifically the former Federal 

Railroad Safety Act of 1970 (former 

FRSA), repealed and re-codified at 49 

U.S.C. 20106, and the former 

Locomotive Boiler Inspection Act (LIA) 

at 45 U.S.C. 22–34, repealed and recodified at 49 U.S.C. 20701–03. The 

former FRSA 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 ‘‘local safety or 

security hazard’’ exception to section 

20106. Moreover, the U.S. Supreme 

Court has held the former LIA preempts 

the field concerning locomotive safety. 

See Napier v. Atl. Coast Line R.R., 272 

U.S. 605 (1926) and Kurns v. R.R. 

Friction Prods. Corp., 565 U.S. 625 

(2012). Therefore, if this proposed rule 

is finalized, it is possible States would 

be preempted from addressing the 

subjects covered by the proposed rule 

(security standards for electronic 

display systems used to display track 

authority information and 

environmental controls in drone 

machines). 

Environmental Impact 

FRA has evaluated this proposed rule 

consistent with the National 

Environmental Policy Act (NEPA; 42 

U.S.C. 4321, et seq.), the Council of 

Environmental Quality’s NEPA 

implementing regulations at 40 CFR 

parts 1500–1508, and FRA’s NEPA 

implementing regulations at 23 CFR part 

771, and determined that it is 

categorically excluded from 

environmental review and does not 

require the preparation of an 

environmental assessment (EA) or 

environmental impact statement (EIS). 

Categorical exclusions (CEs) are actions 

identified in an agency’s NEPA 

implementing regulations that do not 

normally have a significant impact on 

the environment and, therefore, do not 

require either an EA or EIS. See 40 CFR 

1508.4. Specifically, FRA has 

determined that this proposed rule is 

categorically excluded from detailed 

environmental review pursuant to 23 

CFR 771.116(c)(15), ‘‘[p]romulgation of 


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rules, the issuance of policy statements, 

the waiver or modification of existing 

regulatory requirements, or 

discretionary approvals that do not 

result in significantly increased 

emissions of air or water pollutants or 

noise.’’ 

This proposed rule does not directly 

or indirectly impact any environmental 

resources and will not result in 

significantly increased emissions of air 

or water pollutants or noise. In 

analyzing the applicability of a CE, FRA 

must also consider whether unusual 

circumstances are present that would 

warrant a more detailed environmental 

review. See 23 CFR 771.116(b). FRA has 

concluded that no such unusual 

circumstances exist with respect to this 

proposed regulation and the proposal 

meets the requirements for categorical 

exclusion under 23 CFR 771.116(c)(15). 

Pursuant to Section 106 of the 

National Historic Preservation Act and 

its implementing regulations, FRA has 

determined this undertaking has no 

potential to effect historic properties. 

See 16 U.S.C. 470. FRA has also 

determined that this rulemaking does 

not approve a project resulting in use of 

a resource protected by Section 4(f). See 

Department of Transportation Act of 

1966, as amended (Pub. L. 89–670, 80 

Stat. 931); 49 U.S.C. 303. 

Unfunded Mandates Reform Act of 1995 

Under Section 201 of the Unfunded 

Mandates Reform Act of 1995, 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 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 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 proposed rule would 

not result in the expenditure, in the 

aggregate, of $100,000,000 or more in 

any one year (adjusted annually for 

inflation), and thus preparation of such 

a statement is not required. 

Privacy Act 

In accordance with 5 U.S.C. 553(c), 

DOT solicits comments from the public 

to better inform its rulemaking process. 

DOT posts these comments, without 

edit, to www.regulations.gov, as 

described in the system of records 

notice, DOT/ALL–14 FDMS, accessible 

through www.dot.gov/privacy. To 

facilitate comment tracking and 

response, FRA encourages commenters 

to provide their name, or the name of 

their organization; however, submission 

of names is completely optional. 

Whether or not commenters identify 

themselves, all timely comments will be 

fully considered. If you wish to provide 

comments containing proprietary or 

confidential information, please contact 

the agency for alternate submission 

instructions. 

List of Subjects in 49 CFR Part 214 

Railroad Workplace Safety. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend part 

214 of chapter II, subtitle B of title 49, 

Code of Federal Regulations, as follows: 

PART 214—RAILROAD WORKPLACE 

SAFETY 

■ 1. The authority citation for part 214 

continues 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. 

■ 2. In § 214.322, add paragraph (i) to 

read as follows: 

§ 214.322 Exclusive track occupancy, 

electronic display. 

* * * * * 

(i) For purposes of complying with 

paragraph (h) of this section, electronic 

display systems may use multi-factor 

authentication for digital authentication 

of the subject. 

■ 3. Amend § 214.505 by revising the 

introductory text of paragraph (a) and by 

adding paragraph (i) to read as follows: 

§ 214.505 Required environmental control 

and protection systems for new on-track 

roadway maintenance machines with 

enclosed cabs. 

(a) With the exception of machines 

subject to paragraph (i) of this section, 

the following new on-track roadway 

maintenance machines shall be 

equipped with operative heating 

systems, operative air conditioning 

systems, and operative positive 

pressurized ventilation systems: 

* * * * * 

(i) Paragraph (a) of this section is not 

applicable to machines that are 

incapable of performing work functions 

other than by remote operation and are 

equipped with no operating controls 

(i.e., drone roadway maintenance 

machines) if the following conditions 

are met. 

(1) If a drone roadway maintenance 

machine is operated from the cab of a 

separate machine, that separate machine 

must comply with paragraph (a) of this 

section. 

(2) If a drone roadway maintenance 

machine is operated outside of the main 

cab of the separate machine in a manner 

that will expose the operator to air 

contaminants, as outlined in 29 CFR 

1910.1000, Air contaminants, the 

employee shall be protected in 

compliance with 29 CFR 1910.134, 

Personal respiratory protection. 

(3) No person is permitted on the 

drone roadway maintenance machine 

while the equipment is operating. 

(4) Each drone roadway maintenance 

machine must be clearly identified by 

stenciling, marking, or other written 

notice in a conspicuous location on the 

machine indicating the potential 

hazards of the machine being operated 

from a distance or that the machine may 

move automatically. 

Issued in Washington, DC. 

Quintin C. Kendall, 

Deputy Administrator. 

[FR Doc. 2020–27096 Filed 12–10–20; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 201125–0320] 

RIN 0648–BK00 

Endangered and Threatened Species: 

Designation of Nonessential 

Experimental Population of Central 

Valley Spring-Run Chinook Salmon in 

the Upper Yuba River Upstream of 

Englebright Dam, CA 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; availability of a 

draft environmental assessment; request 

for comments. 

SUMMARY: We, NMFS, propose a rule to 

designate and authorize the release of a 

nonessential experimental population 

(NEP) of Central Valley (CV) spring-run 

Chinook salmon (Oncorhynchus 


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