[Federal Register Volume 85, Number 239 (Friday, December 11, 2020)]
[Proposed Rules]
[Pages 79973-79980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27096]


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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).

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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:
    <bullet> Website: Federal eRulemaking Portal, www.regulations.gov. 
Follow the online instructions for submitting comments.
    <bullet> 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: 
<a href="/cdn-cgi/l/email-protection#8ac6ebe4e9efa4c2ebfde1f9caeee5fea4ede5fc"><span class="__cf_email__" data-cfemail="a1edc0cfc2c48fe9c0d6cad2e1c5ced58fc6ced7">[email protected]</span></a>; 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: 
<a href="/cdn-cgi/l/email-protection#6e3d0f031b0b02402907020c0b1c1a2e0a011a40090118"><span class="__cf_email__" data-cfemail="481b29253d2d24660f21242a2d3a3c082c273c662f273e">[email protected]</span></a>.

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 cost-savings. FRA expects these 
amendments can be implemented without compromising safety. Accordingly, 
FRA is proposing to amend Sec.  214.322 to allow the use of alternative 
security standards for electronic display systems to view track 
authority information, and amend Sec.  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

[[Page 79974]]

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.
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    \1\ The 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)[supcaret]t, where ``r'' is the discount rate, and ``t'' is the 
year. Discount rates of 3 and 7 percent are used in this analysis.

                                      Table I-1--Total 10-Year Cost Savings
                                                 [2018 Dollars]
----------------------------------------------------------------------------------------------------------------
                                               Present value    Present value
                                                     3%               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, Sec.  
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\
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    \2\ ``Authentication'' is the process through which the identity 
of an individual user, or ``subject,'' is validated.
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    Under Sec.  214.322(h), new electronic display systems must provide 
Level 3 assurance as defined by the 2013 Standard, i.e., they must 
provide multi-factor 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 Sec.  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 multi-factor authentication, FRA is 
providing additional flexibility for meeting the electronic 
authentication requirements of Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  214.505(a).

[[Page 79975]]

    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:
    <bullet> The drone machine could only be operated by someone 
located in the cab of a lead machine with a Sec.  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.
    <bullet> 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).
    <bullet> Employees were prohibited from being on the machine during 
operation.
    <bullet> The machine was not physically equipped with controls that 
would allow the equipment to be operated.
    <bullet> 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 Sec.  214.322. 
Recognizing the importance of the integrity and secure transmission of 
this data, paragraph (h) of existing Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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

[[Page 79976]]

of the machine being operated from a distance or that the machine may 
move automatically. FRA is not prescribing a specific marking 
requirement, instead Sec.  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 Sec.  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 
Sec.  214.322, and, consistent with an existing waiver, exempt certain 
drone roadway maintenance machines from environmental control 
requirements in Sec.  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 Sec.  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 five-year 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
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                                                                   Burdened wage
              Title                  Pay grade       Wage rate     rate (wages x       Hours        Total wages
                                                                       1.75)
----------------------------------------------------------------------------------------------------------------
FRA Field Inspector.............           GS-12          $47.82          $83.69               8         $669.48
Administrative Assistant (Field            GS-12           47.82           83.69               4          334.74
 Office)........................
Administrative Assistant (DC)...            GS-9           30.54           53.45               4          213.78
Motive Power and Equipment                 GS-14           62.23          108.90              16        1,742.44
 Specialist (DC)................
                                 -------------------------------------------------------------------------------
    Total FRA Labor Cost per      ..............  ..............  ..............  ..............        2,960.44
     Renewal Waiver.............
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    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
----------------------------------------------------------------------------------------------------------------
                                                                                   Cost savings    Cost savings
                  Analysis year                      Number of     Cost savings     (discounted     (discounted
                                                      waivers     (undiscounted)        3%)             7%)
----------------------------------------------------------------------------------------------------------------
1...............................................  ..............  ..............  ..............  ..............
2...............................................  ..............  ..............  ..............  ..............
3...............................................               1          $2,960          $2,709          $2,416
4...............................................  ..............  ..............  ..............  ..............
5...............................................  ..............  ..............  ..............  ..............
6...............................................  ..............  ..............  ..............  ..............
7...............................................  ..............  ..............  ..............  ..............

[[Page 79977]]

 
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 Sec.  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 Sec.  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 Sec.  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    Present value
                                                     3%               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:

[[Page 79978]]



----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
     CFR Section/subject          Respondent      Total annual     Average time    Total annual     dollar cost
                                   universe        responses       per response    burden hours   equivalent \3\
----------------------------------------------------------------------------------------------------------------
Form FRA F 6180.119--Part 214  350 Safety       129 forms......  4 hours........             516         $29,412
 Railroad Workplace Safety      Inspectors.
 Violation Report.
214.307--Railroad on-track     741 railroads..  276 programs +   2 hours + 2                 563          42,788
 safety programs--RR programs                    325 copies.      minutes.
 that comply with this part +
 copies at system/division
 headquarters.
    --RR notification to FRA   741 railroads..  276 notices....  20 minutes.....              92           6,992
     not less than one month
     before on-track safety
     program takes effect.
    --RR amended on-track      741 railroads..  1 program......  4 hours........               4             304
     safety programs after
     FRA disapproval.
    --RR written response in   741 railroads..  1 written        20 hours.......              20           1,520
     support of disapproved                      response.
     program.
214.309--RR publication of     60 railroads...  100 bulletins/   60 minutes.....             100           7,600
 bulletins/notices reflecting                    notices.
 changes in on-track safety
 manual.
214.311--RR written procedure  19 railroads...  5 developed      2 hours........              10             760
 to achieve prompt and                           procedures.
 equitable resolution of good
 faith employee challenges.
214.317--On-track safety       19 railroads...  5 operating      2 hours........              10             760
 procedures, generally, for                      procedures.
 snow removal, weed spray
 equipment, tunnel niche or
 clearing by.
214.318--Procedures            741 railroads..  19 rules/        2 hours........              38           2,888
 established by railroads for                    procedures.
 workers to perform duties
 incidental to those of
 inspecting, testing,
 servicing, or repairing
 rolling equipment.
214.320--Roadway maintenance   741 railroads..  5 requests.....  4 hours........              20           1,520
 machines movement over
 signalized non-controlled
 track--RR request to FRA for
 equivalent level of
 protection to that provided
 by limiting all train and
 locomotive movements to
 restricted speed.
214.322--Exclusive track       3 Class I        1,000 written    10 minutes.....             167           9,519
 occupancy, electronic          Railroads.       authorities.
 display--Written authorities/
 printed authority copy if
 electronic display fails or
 malfunctions.
214.329--Train approach        741 railroads..  26,250           30 seconds.....             219          16,644
 warning--Written designation                    designations.
 of watchmen/lookouts.
214.336--Procedures for        100 railroads..  10,000 notices.  5 seconds......              14             798
 adjacent track movements
 over 25 mph: Notifications/
 watchmen/lookout warnings.
    --Procedures for adjacent  100 railroads..  3,000 notices..  5 seconds......               4             228
     track movements 25 mph
     or less: Notifications/
     watchmen/lookout
     warnings.
214.339--Audible warning from  19 railroads...  19 written       4 hours........              76           5,776
 trains: Written procedures                      procedures.
 that prescribe effective
 requirements for audible
 warning by horn and/or bells
 for trains.
214.343/345/347/349/351/353/   50,000 roadway   50,000 records.  2 minutes......           1,667         126,692
 355--Annual training for all   workers.
 roadway workers (RWs)--
 Records of training.
214.503--Notifications for     50,000 roadway   125 notices....  10 minutes.....              21           1,197
 non-compliant roadway          workers.
 maintenance machines or
 unsafe condition.
    --Resolution procedures..  19 railroads/    5 procedures...  2 hours........              10             760
                                contractors.
214.505 Required               741/200          500 lists......  1 hour.........             500          38,000
 environmental control and      railroads/
 protection systems for new     contractors.
 on-track roadway maintenance
 machines with enclosed cabs.
    --Designations/additions   692/200          150 additions/   5 minutes......              13             988
     to list.                   railroads/       designations.
                                contractors.
    --Stenciling or marking    30 drones......  10 stencils/     5 minutes......               1              57
     of drone roadway                            displays.
     maintenance machine
     (Revised requirement).
214.507--A-Built Light Weight  692/200          1,000 stickers/  5 minutes......              83           4,731
 on new roadway maintenance     railroads/       stencils.
 machines.                      contractors.
214.511--Required audible      692/200          3,700            5 minutes......             308          17,556
 warning devices for new on-    railroads/       identified
 track roadway maintenance      contractors.     mechanisms.
 machines.
214.515--Overhead covers for   692/200          500 + 500        10 + 20 minutes             250          17,423
 existing on-track roadway      railroads/       requests +
 maintenance machines.          contractors.     responses.
214.517--Retrofitting of       692/200          500 stencils/    5 minutes......              42           2,394
 existing on-track roadway      railroads/       displays.
 maintenance machines           contractors.
 manufactured on or after
 Jan. 1, 1991.
214.523--Hi-rail vehicles....  692/200          5,000 records..  5 minutes......             417          23,769
                                railroads/
                                contractors.
    --Non-complying            692/200          500 tags + 500   10 minutes + 15             208          11,856
     conditions.                railroads/       reports.         minutes.
                                contractors.

[[Page 79979]]

 
214.527--Inspection for        692/200          550 tags + 550   5 minutes + 15              183          10,431
 compliance--Repair schedules.  railroads/       reports.         minutes.
                                contractors.
214.533--Schedule of repairs-- 692/200          250 records....  15 minutes.....              63           4,788
 Subject to availability of     railroads/
 parts.                         contractors.
----------------------------------------------------------------------------------------------------------------
        Totals...............  741 railroads..  105,751          N/A............           5,619         388,151
                                                 responses.
----------------------------------------------------------------------------------------------------------------
\3\ Throughout 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: <a href="/cdn-cgi/l/email-protection#256d4a41444b0b724049495665414a510b424a53"><span class="__cf_email__" data-cfemail="3971565d5857176e5c55554a795d564d175e564f">[email protected]</span></a>.
    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 
re-codified 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

[[Page 79980]]

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

0
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.

0
2. In Sec.  214.322, add paragraph (i) to read as follows:


Sec.  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.
0
3. Amend Sec.  214.505 by revising the introductory text of paragraph 
(a) and by adding paragraph (i) to read as follows:


Sec.  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


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