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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 

# AGENCY:

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

# ACTION:

Notice of proposed rulemaking (NPRM); withdrawal. 

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The NPRM published on July 17, 2008 at 73 FR 41214 is withdrawn as of August 13, 2008.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

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. 

      ( print page 47125)    
Issued in Washington, DC on August 7, 2008. 

Joseph H. Boardman, 

Administrator. 

# Footnotes

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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[FR Doc. E8-18714 Filed 8-11-08; 10:00 am] 

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