The Department of Transportation’s modal agencies took three significant regulatory actions affecting passenger rail recently. First, the Federal Railroad Administration (FRA) issued two notices of proposed rulemaking (NPRMs) in two days proposing amendments to its positive train control (PTC) regulations and rules of practice governing waivers. The PTC NPRM includes three amendments relating to the operation of non-revenue passenger equipment, temporary outages of PTC systems, and initialization failures. The NPRM relating to waiver procedures introduces greater specificity into the waiver standard and new requirements for the contents and processing of waiver petitions. Separately, the Federal Transit Administration (FTA) issued a Final Rule enacting new regulations governing rail transit roadway worker protection (RWP), including a requirement that agencies adopt an RWP program and use redundant protections.
Positive Train Control Updates
FRA issued an NPRM on October 28, 2024 proposing three significant amendments to its PTC. The NPRM, if adopted, would represent the first amendment to FRA’s PTC regulations since 2021.
First, the NPRM proposes to add a new entry to the list of exceptions to the general rule that all trains operating on PTC-equipped track be controlled by a PTC-equipped locomotive. The new exception would permit non-revenue passenger equipment to operate in PTC territory to a maintenance facility or yard in order to repair or exchange a PTC system. The regulation lays out certain conditions that would need to be met for the operation to be permissible, such as a maximum 49 miles-per-hour speed and an absolute block in front of the equipment. FRA would also be empowered to approve alternative criteria in a PTC Safety Plan or Request for Amendment (RFA) if the alternatives provided at least as much safety as the default criteria. FRA states that this provision will allow passenger railroads to avoid using rescue trains to move trains with non-operative PTC equipment. According to FRA, commuter railroads have expressed support for this exception, notwithstanding that it will constrain operations by preventing the provision of revenue passenger service while the movement is underway.
Second, the NPRM proposes to add a regulation clarifying that the RFA process applies where a railroad seeks to temporarily disable its PTC system and continue operations. A railroad would need to use the RFA process whenever an onboard PTC apparatus or subsystem, wayside subsystem, communications subsystem, or back office subsystem is “disabled” (FRA states it will interpret “disabled” broadly). The RFA would need to contain certain information, including the technical necessity of the outage, an explanation of how the outage is in the public interest and consistent with railroad safety, specifications about the outage, additional safety measures that will apply during the outage, and an analysis showing that the duration of the outage is the minimum time necessary to complete work, test the PTC system, and place the PTC system back into service.
Third, the NPRM proposes to replace expired regulations governing failures for PTC Systems to initialize. Under the amended regulations, for the first 24 hours after a PTC system fails to initialize trains would be allowed to proceed under the rules governing en-route failures. FRA reasons that railroads are accustomed to complying with these restrictions, and reports that several passenger and freight railroads recommended this approach. After 24 hours, certain of those restrictions would continue to apply, but the standard speed restrictions would be replaced with a stricter cap of 20 miles-per-hour (known as “restricted speed”). FRA would reserve the right to impose additional restrictions. This section is intended to apply only to issues affecting multiple trains, rather than failures on a single train.
Comments are due December 27, 2024, and may be filed on regulations.gov in Docket No. FRA-2023-0064. The NPRM is available at 89 Fed. Reg. 85462.
Waiver Rules of Practice
FRA issued an NPRM on October 29, 2024 proposing to amend its rules of practice governing waivers of its safety regulations.
FRA is statutorily permitted to waive or suspend any of its safety regulations if it finds that doing so is “in the public interest and consistent with railroad safety.” 49 U.S.C. § 20103(d). In the NPRM, FRA is proposing to define the terms “in the public interest” and “consistent with railroad safety” in its regulations. The former term would be defined to mean that “the proposed request demonstrates positive factors including, but not limited to, empowering workers, ensuring equity, protecting the environment, creating robust infrastructure, enabling adaptability and resiliency, bringing legacy systems up to current standards, allowing for experimentation consistent with railroad safety, providing opportunities to collaborate, ensuring interoperability, integrating across transportation modes, and the well-being of the public at large.” The Federal Register notice notes that a request could meet any of these factors to be seen as in the public interest. The latter term (“consistent with railroad safety”) would be defined to mean “at least as safe or safer than the status quo (i.e., without the proposed relief).” These definitions are intended to maintain or improve railroad safety and to align with the Department of Transportation’s “innovation principles” or other public interest factors. They are also intended to ensure consistency in FRA’s evaluation of waiver requests.
FRA is further proposing to require that railroads seeking waivers include in their petitions “documentation demonstrating meaningful good faith consultation with potentially affected stakeholders, including applicable rail labor stakeholders.” FRA states that it would likely deny as incomplete any petition that “fails to document meaningful consultation,” which, for localized requests, “would likely include communities along the railroad’s right-of-way.” This new requirement is driven by FRA’s observation that petitions frequently do not address potential impacts on stakeholders, leading FRA to undertake consultation efforts itself. This requirement would account for the bulk of the proposed rule’s costs.
The remaining proposed substantive amendments include a requirement that requests for renewals or expansions include data on the effectiveness of the waiver and compliance with conditions included in the previous grant of relief, and a change to the regulation governing the public comment period, which will now be automatic rather than at FRA’s discretion. FRA is also proposing technical and clarifying revisions to its rules of practice governing waivers, including separating the requirements for the contents of waiver petitions and rulemaking petitions, adding a clarification of when a proceeding is deemed to be initiated for purposes of the 12-month time limit for its disposal, and updates to obsolete terms, citations, and references to filing procedures.
Comments are due December 30, 2024, and may be filed on regulations.gov in Docket No. FRA-2024-0033. The NPRM is available at 89 Fed. Reg. 85895.
Roadway Worker Protection Rule
FTA issued a Final Rule on October 31, 2024 that enacts new RWP regulations. The regulations require rail transit agencies that are part of the state safety oversight program under 49 C.F.R. Part 674 to plan for and implement an RWP program applicable to workers whose duties involve inspection, construction, maintenance, repairs, or safety on or near the roadway or right-of-way with the potential of fouling a track. The Final Rule defines fouling a track to mean placing the worker’s self or equipment in a position that a moving vehicle or on-track equipment could strike either; the Final Rule, unlike the Proposed Rule, notes that such positions typically are within four feet of the outside rail on both sides of track. Each agency’s RWP program must include specific program elements and an RWP manual and must be reviewed and approved by its State Safety Oversight Agency (SSOA).
A key component of the Final Rule is a prohibition on the use of individual rail transit vehicle detection, in which a worker is responsible for visually determining if trains are approaching. Instead, agencies must use the Safety Risk Management (SRM) processes required under the Public Transportation Agency Safety Plan (PTASP) regulations to establish redundant protections for each category of work a given roadway workers perform. Redundant protections may include procedures, such as advance warning systems, or physical protections, such as derailers and shunts. The redundant protections would be included in the RWP program.
Other required program elements include the designation of a roadway worker in charge for each roadway work group; the provision of job safety briefings by the roadway worker in charge before a roadway worker group fouls a track; a prohibition on lone workers fouling the track outside of certain limited circumstances; and an RWP training program. Agencies will also need to develop procedures that dictate methods for accessing the track zone, providing ample time (defined as the time necessary to clear a track zone or reach a place of safety 15 seconds before a rail transit vehicle moving at the maximum authorized speed on the track could reach the worker’s location), determining appropriate sight distance (the length of track visible to a roadway worker), providing jobs safety briefings whenever a rule violation is observed, providing for good faith safety challenges to assignments, reporting unsafe acts and conditions and near-misses on the roadway, and training. The RWP manual must document the RWP program and its elements, and also define worker responsibilities for the RWP program, training requirements by labor category or type of work performed, processes and procedures to provide adequate safety for all transit workers who may access the roadway, and a track access guide.
SSOAs must update their Program Standards in light of the RWP program and audit agencies annually to assess compliance with and the effectiveness of the agency’s RWP program. SOAs must also review the RWP manual every two years.
The Final Rule is mostly identical to the proposed rule. Key changes include the addition of the four-foot benchmark to the definition of fouling a track, the removal of a specific distance benchmark from the definition of “track zone,” a change in timeline for implementation (RWP programs must now be approved by December 2, 2025, instead of within 90 days of the SSOAs receipt of the Program), and the permission for agencies to designate a single roadway worker in charge for multiple roadway work groups within common working limits, so long as each work group is accompanied by a similarly qualified employee.
FTA projects that the regulations would result in more than $15 million in annual benefits due to a reduction of 1.2 fatalities and 2.4 injuries per year, both of which are smaller than projected in the proposed rule. That is balanced against more than $13 million in annual costs, due primarily to redundant worker protections and training.
The regulations are authorized by 49 U.S.C. § 5329(b), which directs FTA to create and implement a national public transportation safety plan containing minimum safety standards. The Final Rule is published at 89 Fed. Reg. 87166 and will be codified at 49 C.F.R. Part 671 on its effective date, December 2, 2024.
If you have questions about the RWP Final Rule or either NPRM, please contact Ayelet Hirschkorn, Suzanne Silverman, Charles Spitulnik, Christian Alexander, or Grant Glovin.
