Railroad Workplace Safety

CourtFederal Railroad Administration
Citation87 FR 15137
Record Number2022-05625
Published date17 March 2022
Federal Register, Volume 87 Issue 52 (Thursday, March 17, 2022)
[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:
                [email protected]; 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:
                [email protected].
                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)................
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                 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]
                ----------------------------------------------------------------------------------------------------------------
                 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.................................. ................. ................. ................. .................
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                 Total........................... ................. 6,110 5,207 4,272
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                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:
                ----------------------------------------------------------------------------------------------------------------
                 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: [email protected]
                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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