[Federal Register Volume 87, Number 52 (Thursday, March 17, 2022)]
[Rules and Regulations]
[Pages 15137-15143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05625]


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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: Final rule.

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SUMMARY: FRA is revising its regulations governing railroad workplace 
safety to: Allow for the use of alternative cybersecurity standards for 
electronic display systems used to view track authority information for 
roadway worker safety, and exempt certain remotely operated roadway 
maintenance machines from existing heating, ventilation, and air 
conditioning (HVAC) requirements for enclosed cabs.

DATES: This final rule is effective March 17, 2022.

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#307c515e53551e7851475b4370545f441e575f46"><span class="__cf_email__" data-cfemail="501c313e33357e1831273b2310343f247e373f26">[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#c99aa8a4bcaca5e78ea0a5abacbbbd89ada6bde7aea6bf"><span class="__cf_email__" data-cfemail="6c3f0d01190900422b05000e091e182c080318420b031a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    To ensure that regulations remain current and effective for their 
intended purpose, agencies periodically review and propose amendments 
to their regulations. Within this context, FRA reviewed its 49 CFR part 
214-Railroad Workplace Safety regulations. As a result of this review, 
on December 11, 2020, FRA published a notice of proposed rulemaking 
(NPRM) proposing two amendments to subparts C and D of part 214 
addressing Roadway Worker Protection and On-Track Roadway Maintenance 
Machines and Hi-Rail Vehicles, respectively. 85 FR 79973.

[[Page 15138]]

First, FRA proposed to revise Sec.  214.322 (Exclusive track occupancy, 
electronic display) to allow the use of alternative cybersecurity 
standards for electronic display systems used to view track authority 
information. Second, FRA proposed to revise Sec.  214.505 (Required 
environmental control and protection systems for new on-track roadway 
maintenance machines with enclosed cabs) to exempt certain remotely 
operated maintenance machines from existing HVAC requirements.
    FRA believes these provisions provide flexibility to allow for the 
incorporation of new and future technological advances that may further 
improve safety. FRA received two comments, both supporting the NPRM's 
proposals. Accordingly, in this final rule, FRA is adopting the NPRM's 
proposed amendments to part 214 as proposed.\1\ Given that this final 
rule will relieve current regulatory restrictions, in accordance with 5 
U.S.C. 553(d)(1), it is effective upon its publication in the Federal 
Register.
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    \1\ The final rule adopts the amendments exactly as proposed in 
the NPRM, with the single exception of the term ``drone'' being 
replaced with the phrase ``remotely operated'' in the amendment to 
Sec.  214.505, for increased clarity, as explained below.
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    FRA estimates that railroads would experience approximately $5,900 
in paperwork reduction benefits over the ten-year period of this 
analysis. The present value (PV) \2\ of these paperwork reduction 
benefits, when discounted at 3- and 7-percent, is approximately $5,000 
and $4,100, respectively. The annualized paperwork reduction benefits 
are estimated to be approximately $590 at both discount rates. The 
table below presents the estimated 10-year total paperwork reduction 
benefits associated with the final rule.
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    \2\ The present value of costs and paperwork reduction benefits 
flows are calculated in this analysis (over a 10-year period) to 
provide 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.

                              Table I-1--Total 10-Year Paperwork Reduction Benefits
                                                 [2020 Dollars]
----------------------------------------------------------------------------------------------------------------
                                               Present value    Present value
                                                     3%               7%         Annualized  3%   Annualized 7%
----------------------------------------------------------------------------------------------------------------
Total Paperwork Reduction Benefits..........          $5,207           $4,272             $610             $608
----------------------------------------------------------------------------------------------------------------

    Because this final rule provides railroads the flexibility to 
utilize alternative cybersecurity standards for electronic display 
systems at their discretion, and codifies an existing waiver, FRA 
concludes that there are no associated costs.

II. Discussion of Comments

    As noted above, FRA received two comments in response to the NPRM, 
both supportive of the NPRM's proposals.
    The Association of American Railroads and the American Short Line 
and Regional Railroad Association jointly filed a comment concurring 
with both NPRM proposals. Regarding FRA's proposal to revise Sec.  
214.322, the joint comment stated: ``Standards incorporated by 
reference pose challenges both for railroads and regulators alike as 
they often quickly become outdated. FRA's approach [in the NPRM] does 
not substantively change the electronic authentication technology that 
can be used by railroads and avoids the need for unnecessary waivers 
from obsolete standards.''
    The second comment, from a member of the public, expressed support 
for the NPRM's proposals, noting that the proposals would allow for the 
utilization of new technology and improve safety.

III. Background and Overview of the Final Rule

Exclusive Track Occupancy Track Authority Electronic Display Systems

    As explained in the NPRM, 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 provide 
``Level 3 assurance'' as defined by the security standards of the 
National Institute of Standards and Technology (NIST) Special 
Publication 800-63-2, Electronic Authentication Guideline, ``Computer 
Security,'' August 2013 (2013 Standard). ``Level 3 assurance'' means 
the display devices 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).
    As also noted in the NPRM, since adoption of Sec.  214.322(h), NIST 
has updated its computer security standards several times. See 85 FR 
79975 (identifying updates to the 2013 Standard). Further, FRA 
recognizes that as cybersecurity standards continue to change over 
time, other standards may also provide multi-factor authentication. 
Accordingly, FRA proposed to provide additional flexibility for meeting 
the electronic authentication requirements of Sec.  214.322(h) by 
adding a new paragraph (i) to the section. As proposed and adopted in 
this final rule, new paragraph (i) provides that paragraph (h)'s 
requirements may be satisfied so long as an electronic display system 
uses multi-factor authentication.

Remotely Operated Machine Waiver Incorporation

    As discussed in detail in the NPRM, FRA may waive compliance with 
its regulations if the waiver is ``in the public interest and 
consistent with railroad safety.'' 49 U.S.C. 20103(d); see also 49 CFR 
1.89(a). As also noted in the NPRM, activity under a waiver of 
regulatory compliance may generate sufficient data and experience to 
support an expansion of its scope, applicability, and duration.
    As also explained in the NPRM, in 2008, FRA granted a waiver from 
the environmental control requirements of Sec.  214.505(a) (such as 
heating, air conditioning, and ventilation systems) to Harsco Track 
Technologies, a railroad equipment manufacturer for a newly developed 
roadway maintenance machine (RMM) designed to function without a 
dedicated operator located on the machine. See FRA-2008-0070 (available 
at www.regulations.gov). Railroads have safely operated equipment 
subject to this waiver since 2008 and the waiver has been continually 
renewed. Accordingly, in this final rule, FRA is adopting the NPRM's 
proposal to incorporate the provisions of this waiver into regulation 
in new paragraph (i) of Sec.  214.505.

[[Page 15139]]

IV. Section-by-Section Analysis

Section 214.322 Exclusive Track Occupancy, Electronic Display

    As discussed above and in more detail in the NPRM, this final rule 
adds a new paragraph (i) to Sec.  214.322. New paragraph (i) allows the 
use of alternative electronic security standards that provide multi-
factor authentication, other than the currently required 2013 NIST 
Standard. With this flexibility to use alternative standards, FRA 
expects industry may be able to use new methods of electronic 
authentication that are more secure than those described by the 2013 
Standard; more secure authentication methods in turn would make it more 
difficult for any malicious actors to access track authority 
information, and thus more difficult to interfere with roadway work. 
FRA therefore believes this amendment in particular could lead to 
increased safety for roadway workers.
    Because FRA is adopting the proposed amendment to Sec.  214.322 
exactly as proposed in the NPRM, FRA refers readers to the section-by-
section discussion in the NPRM for a more detailed discussion of this 
revision.

Section 214.505 Required Environmental Control and Protection Systems 
for New On-Track Roadway Maintenance Machines With Enclosed Cabs

    As discussed above and in more detail in the NPRM, this final rule 
adds a new paragraph (i) to Sec.  214.505. New paragraph (i) exempts 
certain remotely operated RMMs from existing HVAC requirements.
    The substance of the amendment adopted in the final rule is the 
same as that proposed in the NPRM; however, FRA has decided to use the 
term ``remotely operated'' instead of ``drone'' when describing the 
RMMs at issue, to avoid confusion with the usage of the term ``drone'' 
in other contexts. Because FRA is otherwise adopting the proposed 
amendment to Sec.  214.505 exactly as proposed in the NPRM, FRA refers 
readers to the section-by-section discussion in the NPRM for a more 
detailed discussion of this revision.

V. Regulatory Impact and Notices

Executive Order 12866

    FRA has analyzed this final rule in accordance with Section 3(f) of 
Executive Order 12866, ``Regulatory Planning and Review'' and 
determined that it is not a significant rule.
    FRA is revising its regulations governing the minimum safety 
requirements for railroad workplace safety. These 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 
remotely operated RMMs 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 is allowing 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 requirement as it is simply adding 
flexibility.

HVAC Waiver Incorporation

    As discussed above, in 2008, FRA approved Harsco's waiver petition 
for a five-year period with conditions and has since continually 
renewed the waiver. FRA expects no additional costs for this 
requirement because FRA is codifying a long-standing waiver.
Benefits
    The final rule will be beneficial for regulated entities seeking to 
use electronic display systems that meet alternative cybersecurity 
standards for electronic authentication and provide a comparable or 
better level of identity proofing and digital authentication as that 
required by the 2013 NIST Standard. The final rule will also reduce the 
paperwork burden on regulated entities by providing relief from 
submitting waivers to FRA for the use of certain roadway maintenance 
machines.
    FRA has estimated that paperwork reduction benefits of this final 
rule will result due to waiver codification, as the final rule will 
reduce the need for industry to submit waivers. These estimates assume 
that, without the final regulation, Harsco Track Technologies will 
continue submitting a petition to extend the waiver 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. 
To calculate the paperwork reduction benefits associated with this 
waiver, FRA estimated the labor hours required for FRA to review and 
approve each waiver. Table V-1 below displays the breakdown of the 
waiver review and submission cost for each waiver.

                                       Table V-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          $46.88          $82.04               8         $656.32
Administrative Assistant (Field            GS-12           46.88           82.04               4          328.16
 Office)........................
Administrative Assistant (DC)...            GS-9           32.33           56.58               4          226.32
Motive Power and Equipment                 GS-14           65.88          115.29              16        1,844.64
 Specialist (DC)................
                                 -------------------------------------------------------------------------------
    Total FRA Labor Cost per      ..............  ..............  ..............  ..............        3,055.44
     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 V-2 shows the total paperwork reduction benefits for 
regulated entities to review and submit waivers to FRA.

[[Page 15140]]



                           Table V-2--Waiver Submissions Paperwork Reduction Benefits
                                                     [2020]
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                                                             Paperwork          Paperwork          Paperwork
                                                             reduction          reduction          reduction
            Analysis year             Number of waivers       benefits           benefits           benefits
                                                           (undiscounted)    (discounted 3%)    (discounted 7%)
----------------------------------------------------------------------------------------------------------------
1...................................  .................  .................  .................  .................
2...................................  .................  .................  .................  .................
3...................................                  1              3,055              2,796              2,494
4...................................  .................  .................  .................  .................
5...................................  .................  .................  .................  .................
6...................................  .................  .................  .................  .................
7...................................  .................  .................  .................  .................
8...................................                  1              3,055              2,412              1,778
9...................................  .................  .................  .................  .................
10..................................  .................  .................  .................  .................
                                     ---------------------------------------------------------------------------
    Total...........................  .................              6,110              5,207              4,272
----------------------------------------------------------------------------------------------------------------

Alternatives
    The final rule provides 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 the final rule would be to maintain the status 
quo.
    If FRA does not modify Sec.  214.322, entities will continue to use 
the 2013 NIST Standard as the standard for securing and transmitting 
data for electronic display systems. Although this standard is safe, 
FRA recognizes that updated standards after the 2013 NIST Standard 
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.
    FRA views the remotely operated RMMs subject to the existing waiver 
as an example of using emerging modern technology to make railroad 
roadway maintenance safer and more efficient. FRA has verified that 
waivers allowing remotely operated RMMs do not negatively impact safety 
because FRA has not seen an adverse impact to safety while railroads 
have been operating under this waiver. Therefore, issuing this final 
rule removes unnecessary paperwork burdens arising from avoiding 
petitioning for and processing waivers.
Results
    FRA has estimated the paperwork reduction benefits of this final 
rule and displayed them in the table below.

                              Table V-3--Total 10-Year Paperwork Reduction Benefits
                                                 [2020 Dollars]
----------------------------------------------------------------------------------------------------------------
                                   Present value 3%    Present value 7%      Annualized 3%       Annualized 7%
----------------------------------------------------------------------------------------------------------------
Total Paperwork Reduction                    $5,207              $4,272                $610                $608
 Benefits.......................
----------------------------------------------------------------------------------------------------------------

    As noted in the table above, FRA estimates the total paperwork 
reduction benefits for this final rule to be approximately $5,000 (PV, 
3-percent) and $4,100 (PV, 7-percent). The annualized paperwork 
reduction benefits are 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 rulemaking is not 
expected to have a significant economic impact on a substantial number 
of small entities. FRA certified this rule in the proposed stage. FRA 
requested comments regarding the certification and received no 
comments.
    This final 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 final rule will have an impact 
on a substantial number of small entities.
    However, FRA has determined that the impact on entities affected by 
the final rule will not be significant. The effect of the final 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 forego HVAC systems on a remotely operated piece of 
equipment, consistent with the established safety of a longstanding 
waiver. FRA expects the impact of the final 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 final rule will not have a 
significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
final 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

[[Page 15141]]

contain the final and current information collection requirements and 
the estimated time to fulfill each requirement are as follows:

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                                                                                                   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     746 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 not   746 railroads..  276 notices....  20 minutes.....              92           6,992
 less than one month before
 on-track safety program
 takes effect.
--RR amended on-track safety   746 railroads..  1 program......  4 hours........               4             304
 programs after FRA
 disapproval.
--RR written response in       746 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            746 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   746 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        746 railroads..  26,250           30 seconds.....             219          16,644
 warning.                                        designations.
- Written designation 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               746/200          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 to    692/200          150 additions/   5 minutes......              13             988
 list.                          railroads/       designations.
                                contractors.
--Stenciling or marking of     30 remotely      10 stencils/     5 minutes......               1              57
 remotely operated roadway      operated         displays.
 maintenance machine (Revised   machines.
 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 conditions...  692/200          500 tags + 500   10 minutes + 15             208          11,856
                                railroads/       reports.         minutes.
                                contractors.
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...................  746 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.


[[Page 15142]]

    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 Collection Clearance Officer, at 202-493-0440. 
Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Ms. Wells 
at the following address: <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="d098bfb4b1befe87b5bcbca390feb7bfa6">[email protected]</a>.

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 final rule has been analyzed consistent with the principles 
and criteria in Executive Order 13132. This final rule will 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 final 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, it is possible States would be preempted from addressing the 
subjects covered by the final rule (security standards for electronic 
display systems used to display track authority information and HVAC 
systems on remotely operated machines).

Environmental Impact

    FRA has evaluated this final 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 final 
rule is categorically excluded from detailed environmental review 
pursuant to 23 CFR 771.116(c)(15), ``[p]romulgation of 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 final 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 final regulation 
and it 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 final rule will 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.

[[Page 15143]]

List of Subjects in 49 CFR Part 214

    Occupational safety and health, Railroad safety.

The Rule

    For the reasons discussed in the preamble, FRA amends 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. Amend Sec.  214.322 by adding 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 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., remotely 
operated roadway maintenance machines) if the following conditions are 
met.
    (1) If a remotely operated 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 remotely operated 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, the employee shall be protected in compliance with 29 CFR 
1910.134.
    (3) No person is permitted on the remotely operated roadway 
maintenance machine while the equipment is operating.
    (4) Each remotely operated 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.
Amitabha Bose,
Administrator.
[FR Doc. 2022-05625 Filed 3-16-22; 8:45 am]
BILLING CODE 4910-06-P


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