05-14756. Railroad Workplace Safety

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

On February 10, 2005, FRA published an interim final rule amending regulations on railroad workplace safety to clarify an ambiguous provision concerning the circumstances under which life vests or buoyant work vests are required for bridge workers working over water. 70 FR 7047. As no comments were received in response to the notice of interim final rule, this document adopts the interim final rule as a permanent final rule.

DATES:

Effective Date: This rule becomes effective July 27, 2005.

FOR FURTHER INFORMATION CONTACT:

Gordon A. Davids, Bridge Engineer, Office of Safety, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone: [phone]); or Anna Nassif, Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone: [phone]).

SUPPLEMENTARY INFORMATION:

Background

On June 24, 1992, FRA published railroad workplace safety regulations in 49 CFR part 214. 57 FR 28127. Subsequent amendments to that regulation added Subpart C, Roadway Worker Protection, and Subpart D, On-Track Roadway Maintenance Machines and Hi-Rail Vehicles. 61 FR 65959 (December 16, 1996), 68 FR 44388 (July 28, 2003). Additional amendments have provided technical corrections and changes to improve the effectiveness of the regulation.

FRA subsequently received a request from the Norfolk Southern Railway Company (NS) to permit NS employees who are working on a bridge deck over water to work without a life vest or buoyant work vest under circumstances in which falls are effectively prevented. NS referred to factual situations under the regulation, where a bridge worker who was located 12 feet or more over the ground was prevented from falling by hand rails, walkways, or acceptable work procedures and was therefore not required to use a personal fall arrest system. However, if the same circumstances prevailed on a bridge over water, the bridge worker was required to wear a life vest or buoyant work vest even though the bridge worker over water may have had the same safety hand rails, walkways, or acceptable work procedures in place as the bridge worker had over dry land. FRA considered this request, and found that the situation addressed by NS was not limited to one railroad. FRA therefore considered it advisable to provide an industry-wide resolution by issuing a technical amendment to the regulation.

On February 10, 2005, FRA published an interim final rule amending section 214.107 to resolve this unintended inconsistency. 70 FR 7047. Written comments were due March 28, 2005; however, no comments were received, and the rule went into effect on April 11, 2005. The amendment now permits the exceptions in sub-paragraph (b)(2), and paragraphs (c) and (d) of § 214.103, which previously only applied to the use of personal fall arrest systems and safety nets over dry land, to also apply to the use of life vests or buoyant work vests while working over water. The amendment will have the effect, in a common example, of permitting a railroad track inspector, when on a bridge that is over water and equipped with effective handrails and walkways, to replace a joint bolt without having to wear a life vest or buoyant work vest, without the need to have a life preserver within ready access, and without the need for ring buoys and a boat or skiff in the water. The amendment should also have the beneficial effect of encouraging bridge owners to install effective fall prevention components on low bridges over water in order to improve labor efficiency.

Section-by-Section Analysis

No comments were received in response to the interim final rule. Accordingly, a section-by-section analysis is unnecessary. Please see the section-by-section analysis in the interim final rule at 70 FR 7049.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule has been evaluated in accordance with existing policies and procedures and is not considered significant under Executive Order 12866 or under DOT policies and procedures. The minor technical changes made in this rule will not increase the costs or alter the benefits associated with this regulation to any measurable degree.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires a review of rules to assess their impact on small entities. This final rule clarifies existing requirements. The changes will have no new direct or indirect economic impact on small units of government, businesses, or other organizations. Therefore, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the provisions of the Regulatory Flexibility Act.

Paperwork Reduction Act

There are no paperwork requirements associated with this final rule.

Environmental Impact

FRA has evaluated this rule in accordance with its procedures for ensuring full consideration of the environmental impact of FRA actions, as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and DOT Order 5610.1c. The rule meets the criteria establishing this as a non-major action for environmental purposes.

Federalism Implications

This final rule will not have a substantial effect 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. Thus, in accordance with Executive Order 13132, preparation of a Federalism Assessment is not warranted.

Compliance With the Unfunded Mandates Reform Act of 1995

Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) 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).” Sec. 201. Section 202 of the Act 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 $120,700,000 or more 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 rule published today does not include any mandates which will result in the expenditure, in the aggregate, of $120,700,000 or more in any one year, and thus preparation of a statement is not required.

List of Subjects in 49 CFR Part 214

• Bridges
• Fall arrest equipment
• Incorporation by reference
• Occupational safety and health
• Personal protective equipment
• Railroad employees
• Railroad safety

The Final Rule

In consideration of the foregoing, the interim final rule amending 49 CFR part 214, which was published at 70 FR 7047 on February 10, 2005, is adopted as a final rule without change.

Issued in Washington, DC on July 5, 2005.

Joseph H. Boardman,

Federal Railroad Administrator.