[Federal Register Volume 73, Number 157 (Wednesday, August 13, 2008)]
[Proposed Rules]
[Pages 47124-47125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18714]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 214

[Docket No. FRA-2008-0059, Notice No. 2]
RIN 2130-AB93


Railroad Workplace Safety; Adjacent-Track On-Track Safety for 
Roadway Workers

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

ACTION: Notice of proposed rulemaking (NPRM); withdrawal.

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SUMMARY: On July 17, 2008, FRA published an NPRM in the Federal 
Register addressing adjacent-track on-track safety procedures for 
roadway workers. For the reasons stated below, FRA has decided to 
withdraw the NPRM.

DATES: The NPRM published on July 17, 2008 at 73 FR 41214 is withdrawn 
as of August 13, 2008.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track 
Division, Office of Safety Assurance and Compliance, FRA, 1200 New 
Jersey Avenue, SE., RRS-15, Mail Stop 25, Washington, DC 20590 
(telephone 202-493-6236); or Anna Winkle, Trial Attorney, Office of 
Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-12, Mail Stop 10, 
Washington, DC 20590 (telephone 202-493-6166 or 202-493-6052).

SUPPLEMENTARY INFORMATION: The NPRM was developed in order to respond 
to fatal train incidents and in response to recommendations from the 
Railroad Safety Advisory Committee (RSAC). The NPRM was published with 
an abbreviated comment period in order to address the issue in a more 
timely fashion, in response to a joint petition for Emergency Order 
that was filed by the Brotherhood of Maintenance of Way Employes 
Division (BMWED) and the Brotherhood of Railroad Signalmen (BRS). 
However, since the publication of the NPRM, FRA received a joint 
request from BMWED and BRS that FRA extend the comment period for this 
NPRM to 60 days, due to concern that parts of the NPRM failed to 
accurately capture the consensus recommendations of the RSAC.\1\ The 
joint request did not specify which parts of the NPRM failed to reflect 
the consensus recommendations, and no formal comments have been 
submitted by the BMWED or BRS to that effect. However, there have been 
several ``ex parte'' communications subsequent to the filing of the 
joint request in which a representative of the BMWED has recommended 
that FRA make very specific changes to the proposed rule. In accordance 
with the Department of Transportation's Policy (Order No. 2100.2 
(1970)), all communications between FRA employees and other parties 
since the publication of the NPRM have been reduced to writing and 
placed in the public docket.
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    \1\ FRA notes that extending the comment period to September 15, 
2008, would remove all possibilities of any final rule becoming 
effective prior to the fourth quarter (October-December), in which 
the majority of the adjacent-track fatalities have occurred.
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    It should be noted that while the proposed rule text was intended 
to be responsive to the intent of the consensus language recommended to 
FRA by the RSAC, FRA may not delegate its rulemaking authority to a 
committee, and may choose to accept or reject any or all of the 
consensus proposals for cause stated. However, in consideration of the 
assistance provided by the RSAC, FRA does endeavor to ensure that FRA 
representatives to the consensus process reflect the policies of the 
Federal Railroad Administrator. In reviewing the consensus language, 
there were several areas that FRA thought needed clarification in order 
to ensure uniform application of the law, as well as enforceability of 
the consensus language if it were to be adopted as written. In crafting 
the NPRM, FRA presented the RSAC consensus language in the preamble 
verbatim and transparently explained its rationale for all changes it 
made to the consensus language. As this was an NPRM, FRA sought comment 
on the entire proposal, including those portions that FRA sought to 
clarify.
    FRA recognizes that inadvertent errors do sometimes occur in 
formulating a proposal and expects that interested parties would 
provide comments to both FRA and all other interested parties through 
the established comment process detailed in the NPRM. Given the alleged 
discrepancies between the consensus language and the proposed rule, the 
need to clarify the essential issues and move toward resolution of the 
safety concern at hand, and the ex parte communications regarding this 
proposed rule, FRA has decided to withdraw this rulemaking and will 
take such further regulatory steps as safety requires. The docket for 
this rulemaking has been closed. Any formal comments submitted on this 
NPRM will need to be resubmitted by the commenter, if still applicable, 
to a future rulemaking docket.


[[Page 47125]]


    Issued in Washington, DC on August 7, 2008.
Joseph H. Boardman,
Administrator.
[FR Doc. E8-18714 Filed 8-11-08; 10:00 am]
BILLING CODE 4910-06-P