[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Rules and Regulations]
[Pages 23329-23336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11598]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 209 and 211
[Docket No. FRA-2009-0006; Notice No. 1]
RIN 2130-AC02
Miscellaneous Revisions to the Procedures for Handling Petitions
for Emergency Waiver of Safety Regulations and the Procedures for
Disqualifying Individuals From Performing Safety-Sensitive Functions
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Direct final rule.
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SUMMARY: This direct final rule makes miscellaneous revisions to the
procedures for obtaining waivers from a safety rule, regulation, or
standard during an emergency situation or an emergency event, and the
procedures for disqualifying individuals from performing safety-
sensitive functions. FRA's purpose in revising these
[[Page 23330]]
procedures is to make them consistent with sections 305 and 308 of the
Rail Safety Improvement Act of 2008 (the ``Act''), Public Law 110-432,
Division A, which was signed into law on October 16, 2008. Interested
parties may submit written adverse comments or may request an oral
hearing on these miscellaneous revisions during the thirty (30) day
period following publication of this rule. FRA anticipates no adverse
comments.
DATES: Effective Date: Unless FRA receives a written adverse comment or
a request for an oral hearing on this direct final rule within the
specified comment period, the effective date will be July 20, 2009.
Written Comments: Comments or a request for an oral hearing must be
received by June 18, 2009.
ADDRESSES: Comments, identified by Docket Number FRA-2009-0006, may be
submitted by any of the following methods:
Fax: 1-202-493-2251.
Mail: DOT Docket Management Facility; W12-140, West
Building, 1200 New Jersey Ave., SE., Washington, DC 20590.
Hand Delivery: W12-140 on the ground level of the West
Building, 1200 New Jersey Ave., SE., Washington, DC, between 9 a.m. and
5 p.m., Monday through Friday, except Federal Holidays.
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information. Please see the Privacy Act heading later in this document
for more information.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
W12-140 on the ground level of the West Building, 1200 New Jersey Ave.,
SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Grady C. Cothen, Jr., Deputy Associate
Administrator for Safety Standards and Program Development, FRA, 1200
New Jersey Ave., SE., RRS-2, Mail Stop 25, Washington, DC 20590
(Telephone 202-493-6302), or Zeb Schorr, Trial Attorney, Office of
Chief Counsel, FRA, 1200 New Jersey Ave., SE., Mail Stop 10,
Washington, DC 20590 (Telephone 202-493-6072).
SUPPLEMENTARY INFORMATION:
Background
Individual Disqualification Procedures
Section 305 of the Rail Safety Improvement Act of 2008 expanded the
scope of 49 U.S.C. 20111(c), which concerns disqualifying individuals
from performing safety-sensitive functions. Specifically, section 305
provides, in part, that an individual who has violated the
Transportation of Hazardous Materials laws (49 U.S.C. Chapt. 51) or a
regulation or order prescribed under those laws may be prohibited from
performing safety-sensitive functions in the railroad industry for a
specified period of time or until specified conditions are met, if it
is shown that the violation makes the individual unfit for safety-
sensitive functions. Based on section 305 of the Act, FRA is revising
its existing procedures that govern the process that the agency uses to
disqualify individuals from performing safety-sensitive functions.
These procedures are intended to assure the prompt and efficient
conduct of disqualification proceedings, while affording administrative
due process to those against whom such proceedings are initiated.
Emergency Waiver Procedures
Section 308 of the Act includes specific procedures for obtaining
waivers from a safety rule, regulation, or standard during an emergency
situation or an emergency event. Based on the modifications contained
in the Act, FRA is revising the existing emergency waiver procedures
that it adopted in 2007 to expeditiously handle waiver requests that
are directly related to an emergency situation or an emergency event.
These revisions will make the existing procedures consistent with the
Act and will permit FRA to provide railroads necessary operational
relief during emergencies while at the same time maintaining public
safety.
Due to the catastrophic and devastating damage inflicted on the
southern portion of the United States in the aftermath of Hurricane
Katrina, FRA published a notice in the Federal Register establishing a
temporary means for handling petitions for waiver from the Federal rail
safety regulations that were directly related to the effects of the
hurricane or were necessary to effectively address the relief efforts
being undertaken in the area. See 70 FR 53413 (September 8, 2005). FRA
recognized that these types of petitions had to be afforded special
consideration and had to be handled expeditiously in order to ensure
that the emergency operational needs of the railroads were addressed
while at the same time ensuring the safety of the public, including
railroad employees. Such emergency waivers would help ensure that
routine safety regulations would not stand in the way of the railroads'
efforts to cope with the emergency and to provide timely relief and
recovery efforts. FRA subsequently issued an interim final rule, and
then a final rule, codifying those interim procedures. See 72 FR 17438
(April 7, 2007). FRA is issuing this direct final rule revising these
existing procedures so that they are consistent with the Act.
Section-by-Section Analysis
Disqualification Procedures--49 CFR Part 209
Section 209.301(a). This paragraph discusses the scope of the rules
of practice for disqualification proceedings of railroad employees and
agents from safety-sensitive functions in the rail industry. A
technical amendment is made to this paragraph so that it refers to the
Federal railroad safety laws at 49 U.S.C. 20111(c) rather than the
laws' previous incorporation at title 45 of the United States Code.
Section 209.303(a). This paragraph makes clear that railroad
employees who are assigned to perform service subject to the Hours of
Service Act during a duty tour are subject to the disqualification
procedures. A technical amendment is made so that this paragraph refers
to 49 U.S.C. Chapt. 211 rather than the old hours of service statutory
citation at title 45 of the United States Code.
Section 209.303(b). This paragraph identifies the railroad
employees or agents that are subject to the disqualification
procedures. These include railroad employees or agents who: (1)
Inspect, install, repair, or maintain track and roadbed; (2) inspect,
repair or maintain, locomotives, passenger cars, and freight cars; (3)
conduct training and testing of employees when the training or testing
is required by the FRA's safety regulations; and (4) perform service
subject to the Transportation of Hazardous Materials laws (49 U.S.C.
Chapt. 51), or any regulation prescribed thereunder. This paragraph is
amended to identify railroad employees and agents who perform service
subject to 49 U.S.C. Chapt. 51, and any regulation or order prescribed
thereunder, in order to remain consistent with the Act.
[[Page 23331]]
Section 209.303(c). This paragraph identifies the following
railroad managers, supervisors, or agents as subject to the
disqualification procedures. These include railroad managers,
supervisors, or agents who: (1) Perform the safety-sensitive functions
listed in paragraphs (a) and (b) of this section; (2) supervise and
otherwise direct the performance of the safety-sensitive functions
listed in paragraphs (a) and (b) of this section; or (3) are in a
position to direct the commission of violations of any of the
requirements of parts 213 through 241 of this title, or of any of the
requirements of the Transportation of Hazardous Materials Laws (49
U.S.C. Chapt. 51), or any regulation or order prescribed thereunder. A
technical amendment is made to this paragraph so that it refers to
parts 213 through 241 of title 49 of the Code of Federal Regulations.
The existing provision only refers to parts 213 through 236. Because
parts 238 through 241 have been added to the Code of Federal
Regulations since the last amendment of this provision, it is necessary
to make this technical amendment for accuracy and clarity. As indicated
above, this paragraph is also amended to identify railroad managers,
supervisors, and agents who perform, supervise, or direct service in
violation of 49 U.S.C. Chapt. 51, and any regulation or order
prescribed thereunder, in order to remain consistent with the Act.
Section 209.327(c). Technical amendments are made so that this
paragraph cross-references paragraphs (a) and (b). The existing
provision contains an inaccurate cross-reference to paragraphs (c) and
(d) of this section. This amendment is necessary for accuracy and
clarity.
Section 209.329(a). This paragraph provides that the proof of a
respondent's willful violation of one of the requirements of parts 213
through 241 (excluding parts 225, 228, and 233) of this title, or one
of the requirements of 49 U.S.C. Chapt. 51, or any regulation or order
prescribed thereunder, establishes a rebuttable presumption that the
respondent is unfit to perform the safety-sensitive functions described
in Sec. 209.303. A technical amendment is made to this paragraph so
that it refers to parts 213 through 241 of title 49 of the Code of
Federal Regulations. The existing provision only refers to parts 213
through 236. Because parts 238 through 241 have been added to the Code
of Federal Regulations since the last amendment of this provision, it
is necessary to make this technical amendment for accuracy and clarity.
This paragraph is also amended to include a reference to violations of
49 U.S.C. Chapt. 51, and any regulation or order prescribed thereunder,
in order to remain consistent with the Act.
Section 209.329(b). Minor technical amendments are made to this
paragraph to correct spelling and punctuation errors in the existing
provision.
Processing of Emergency Waivers--Sec. 211.45
Section 211.45(a). This paragraph makes clear that the emergency
waiver procedures are intended to go into effect when there is an
occurrence of, or imminent threat of, an emergency event or an
emergency situation. The types of emergency events and emergency
situations intended to be covered by this direct final rule could be
local, regional, or national in scope and could include natural or
manmade disasters, such as hurricanes, floods, earthquakes, mudslides,
forest fires, snowstorms, terrorist acts, biological outbreaks,
releases of dangerous radiological, chemical, explosive, or biological
material, or war-related activities that pose a risk of death, serious
illness, severe injury, or substantial property damage. In order to
remain consistent with the Act, technical amendments are made so that
this paragraph identifies relevant emergency situations. This direct
final rule also amends the definition of the terms ``emergency event''
and ``emergency situation'' to make them consistent with the terms as
used in the Act.
Section 211.45(b). This paragraph contains information regarding
FRA's establishment of an annual Emergency Relief Docket (ERD).
Establishing a new ERD each year allows FRA to receive petitions for
emergency waivers as soon as the occurrence of, or imminent threat of,
an emergency event is determined to have occurred. A yearly ERD is also
a convenient way to organize the emergency waiver petitions and related
documents. For reference purposes, any petition can be located by the
year in which the emergency event or emergency situation occurred. The
Federal eRulemaking Portal (``FeP'') internet site, http://www.regulations.gov, that is identified in this final rule allows any
interested party to request notification and to subsequently, without
fee, be automatically notified via e-mail when documents are added to
the designated ERD. This paragraph also makes clear that FRA will
publish by January 31st of each year, a Federal Register notice
identifying the ERD for that year. This will inform interested parties
where to find petitions for emergency waiver during an emergency and
will allow such parties to request e-mail notification. Placing a
notice in the previous year's ERD will allow the parties interested in
the prior year to automatically receive the new docket number. The only
changes made by this direct final rule to the existing paragraph are
technical amendments so that this paragraph refers to the Federal
eRulemaking Portal and http://www.regulations.gov which replaced the
DOT Docket Management System.
Section 211.45(c). This paragraph identifies the FRA Administrator
(the ``Administrator'') as the individual responsible for determining
when the emergency waiver procedures will be utilized. The
Administrator is the appropriate person to determine whether a
situation or set of circumstances constitutes an emergency for purposes
of FRA's use of the emergency waiver procedures. The Administrator has
a unique familiarity with the rail-industry through oversight of the
following: Managing comprehensive safety programs and regulatory
initiatives; enforcement of FRA safety regulations; development and
implementation of national freight and passenger rail policy; and
oversight of diverse research and development activities in support of
improved railroad safety. During significant emergencies the
Administrator has extensive interaction with the Department of Homeland
Security, Director of National Intelligence, the Federal Bureau of
Investigation, the Surface Transportation Board and other Federal
agencies responsible for addressing public safety, health, security and
welfare. In addition, the Administrator maintains contemporaneous
communication with relevant rail transportation entities, including
passenger and freight railroads. This experience and interaction
provides a basis from which the Administrator can assess whether a
situation or set of circumstances rises to the level of an emergency
event that would necessitate activation of the emergency waiver
procedures.
The Administrator's statement declaring that the emergency
procedures are in effect will be placed in the appropriate ERD as soon
as practicable. The FeP Internet site that is identified in the rule
text allows any subscribing interested party to request notification,
without fee, via e-mail when documents are added to the appropriate
ERD. In determining whether an emergency exists the Administrator may
consider states of emergency issued by a local, State, or Federal
official, and determinations by the Federal government that a credible
threat of a
[[Page 23332]]
terrorist attack exists. The Administrator will consider whether such
emergencies significantly affect railroad operations, and whether it
would be beneficial to activate the emergency waiver procedures. Minor
technical amendments are being made to the existing provision in this
final rule in order to make the provision consistent with the Act by
using the term ``emergency situation,'' and by correcting the cross-
reference to paragraph (b) of this section.
Section 211.45(d). This paragraph identifies the methods by which
interested parties may be notified of FRA's determination to utilize
the emergency waiver procedures. If conditions permit, FRA will issue
the Administrator's determination on FRA's Web site to quickly notify
the public. FRA will also place the Administrator's determination in
the ERD as soon as practicable. This direct final rule makes technical
amendments to the existing provision by slightly modifying the
notification process consistent with the requirements of the Act. The
Act does not require publication of the determination in the Federal
Register and FRA believes that notification to interested parties will
occur in a more expeditious manner if such notification is accomplished
through the FRA Web site and the ERD. A minor change is also made in
this paragraph by correcting the cross-reference to paragraph (c) of
this section.
Section 211.45(e). This paragraph identifies the required content
of a petition for emergency waiver. To be considered under the
emergency waiver procedures, FRA must first determine that the petition
is directly related to the occurrence of, or imminent threat of, an
emergency event or an emergency situation. FRA will base its
determination on the information provided in the petition. Thus, the
petition should contain information that sufficiently demonstrates the
relationship between the emergency event or emergency situation and the
waiver relief being sought. This direct final rule does not modify the
existing provision and is included in this document for the convenience
of interested parties.
Section 211.45(f). This paragraph instructs the public on how to
submit a petition under the emergency waiver procedures. FRA is
permitting submission by e-mail, facsimile, or mail. Permitting a
variety of methods for submitting petitions for emergency waiver is
intended to enhance the convenience and effectiveness of the process
during the occurrence of, or imminent threat of, an emergency event or
emergency situation. The direct final rule includes a minor technical
amendment to the existing provision by updating the submission
information to include FRA's current address which changed subsequent
to the issuance of the original rule.
Section 211.45(g). This paragraph contains information regarding
FRA's handling of waiver petitions under the emergency waiver
procedures. After FRA declares that the emergency procedures are in
effect, it will accept petitions for emergency waivers. Petitions that
are determined to be directly related to an emergency will be placed in
the ERD for that year. The FeP numbers each document that is added to a
docket. Thus, each petition submitted to the ERD will have a unique
document number. For reference purposes, this document number should be
identified on all communications related to that particular waiver
petition. The only change being made by this direct final rule to the
existing provision is a technical amendment so that this paragraph
refers to the Federal eRulemaking Portal which replaced the DOT Docket
Management System.
Section 211.45(h). This paragraph explains the comment process.
During emergency situations and emergency events the public interest
requires an expedited review process to ensure public safety. The
Administrator may waive compliance with any part of a regulation
prescribed or order issued without prior notice and comment. However,
comments may be submitted pursuant to the direction in this paragraph,
and FRA will consider such comments to the extent practicable. This
direct final rule amends the existing provision by specifically stating
that FRA's Administrator is able to issue waivers in an emergency
situation without prior notice and comment. The Act provides FRA with
this authority. Thus, although interested parties are free to submit
comments and request hearings, FRA is not required to address them or
conduct such hearings prior to deciding a petition. The only other
changes being made by this direct final rule to the existing provision
are minor technical amendments. These include a reference to the
Federal eRulemaking Portal and http://www.regulations.gov which
replaced the DOT Docket Management System and a correction to the
submission information to include FRA's current address which changed
subsequent to the issuance of the original rule.
Section 211.45(i). This paragraph describes how FRA will handle
requests for hearing. As noted, the Administrator may waive compliance
with any part of a regulation prescribed or order issued without prior
notice and comment. Pursuant to the direction in this paragraph, a
hearing may be requested. FRA may arrange a telephone conference
between interested parties, a public hearing pursuant to this part, or
may determine that a public hearing is unnecessary. This direct final
rule amends the existing provision by specifically stating that FRA's
Administrator is able to issue waivers in an emergency situation
without prior notice and comment. The Act provides FRA with this
authority. Thus, although interested parties are free to submit
comments and request hearings, FRA is not required to address them or
conduct such hearings prior to deciding a request for relief related to
an emergency situation or event.
Section 211.45(j). This paragraph identifies the process by which
FRA will make decisions on emergency waivers including: FRA's
consideration of the petition; FRA's notification of the decision; the
limits of any relief granted under the procedures, and FRA's right to
reopen a docket and reconsider a decision.
The ability to grant or deny a petition without delay is essential
to ensuring public safety during an emergency. In addition, the
opportunity to reconsider a petition after the initial decision is made
will ensure a robust deliberation. FRA's understanding of an emergency
may change as the emergency event develops. Accordingly, the public
will benefit from FRA's ability to reconsider decisions, and make
appropriate adjustments based on further information. During an
emergency it is a priority to address petitions for emergency waiver
and to make decisions without delay.
Posting the decision letters in the appropriate ERD will provide
notice to interested parties. The FeP Internet site that is identified
in the rule text allows any interested party to receive, without fee,
automatic notification via e-mail of ERD documents, including the
Administrator's determination that emergency waiver procedures are in
effect.
This paragraph also makes clear that any relief granted under these
procedures may be issued for a period of not more than 60 days. If
relief is needed for a period of time beyond 60 days, such relief may
only be renewed upon application to the Administrator, after notice and
an opportunity for a hearing on the waiver. FRA will consult and
coordinate with other Federal agencies, as appropriate, for matters
that may impact such agencies.
[[Page 23333]]
As discussed above, this direct final rule amends the existing
provisions contained in this paragraph to make them consistent with the
requirements and limitations contained in the Act. The final rule makes
clear that FRA's Administrator is able to grant and issue decisions on
waivers in an emergency situation without prior notice and comment.
This final rule also adopts the specific time limits related to
emergency waivers contained in the Act by changing the nine month
limitation on the effectiveness of such waivers to the statutorily
imposed 60-day limit. This paragraph is also amended to note that FRA
will consult and coordinate with other Federal agencies on any matters
that may impact such agencies. This broad language is intended to
incorporate the existing narrow language noting that FRA will consult
with the Department of Homeland Security on matters that significantly
impact the mission of that agency.
Notice and Comment Procedures
FRA has determined that these miscellaneous revisions are non-
controversial, affect FRA internal procedures, and/or involve non-
substantive clarifications to existing rules. While FRA does not
anticipate any adverse comment, interested parties may submit written
comments or request an oral hearing on these amendments during the
thirty (30) day period immediately following publication of this direct
final rule.
Regulatory Impact
Executive Order 12866 and DOT regulatory policies and procedures
This direct final rule has been evaluated in accordance with
Executive Order 12866 and DOT policies and procedures. The
modifications contained in this direct final rule are considered non-
significant because they are intended to merely revise internal FRA
procedures for handling waivers directly related to an emergency, and
for individual disqualification from performing safety-sensitive
functions, and to make these procedures consistent with Sec. Sec. 305
and 308 of the Rail Safety Improvement Act of 2008. FRA does not expect
a change in the number of emergency waivers or the level of effort
associated with the developing or processing of these as a result of
the amendments to the procedures for handling waivers. In addition, FRA
does not expect the impact of the amendments to the procedures for
disqualification to result in more than a very minimal increase in the
number of disqualification cases, if any. In the nearly twenty years
that existing disqualification procedures have been in effect, only
sixteen disqualification cases have been initiated. Overall, the
economic impact of the amendments to the procedures contained in this
direct final rule may potentially increase compliance costs nominally.
The benefits resulting from the prompt and efficient conduct of
proceedings, while affording administrative due process, are expected
to fully justify any additional burden.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of proposed and final rules to assess their impact on
small entities, unless the Secretary certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. Pursuant to Section 312 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has issued a
final policy that formally establishes ``small entities'' as including
railroads that meet the line-haulage revenue requirements of a Class
III railroad. 49 CFR part 209, app. C. For other entities, the same
dollar limit in revenues governs whether a railroad, contractor, or
other respondent is a small entity. Id.
FRA certifies that this direct final rule will have no significant
economic impact on a substantial number of small entities. FRA does not
expect a change in the number of emergency waivers filed by small
entities or the level of effort associated with the developing or
processing of these as a result of the amendments to the procedures for
handling waivers. There are approximately 520 railroads that are
considered small entities. In the nearly twenty years that existing
disqualification procedures have been in effect, only three
disqualification cases have been initiated involving small railroads.
Since this universe of railroads would be the same universe impacted by
this rulemaking, and the number of overall disqualification cases is
not expected to increase significantly, FRA does not expect the impact
of the amendments to the procedures for disqualification involving
small entities to impact a significant number of small railroads.
Although there is a potential, FRA has concluded that there are no
substantial economic impacts on small entities. To the extent that this
rule has any impact on small entities, the impact will not be
significant.
Paperwork Reduction Act
There is no additional burden associated with the expanded scope of
disqualification proceedings under the revised requirements of Part 209
of this rule. Any burden associated with the current requirements of
Part 209 is already covered under OMB No. 2130-0529, which currently
expires February 28, 2010. The burden for waiver petitions is included
separately under the OMB currently approved collection of information
associated with each agency rulemaking. Any burden associated with the
requirements for emergency waiver petitions in this final rule will be
included separately in each collection of information associated with
that particular agency rulemaking, either at the time agency re-
approval is sought from OMB or at the time an agency rulemaking is
newly published or revised and the agency seeks OMB approval for the
corresponding collection of information.
Environmental Impact
FRA has evaluated this direct final rule in accordance with its
``Procedures for Considering Environmental Impacts'' (``FRA's
Procedures'') (64 FR 28545, May 26, 1999) as required by the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental
statutes, Executive Orders, and related regulatory requirements. FRA
has determined that this document is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
64 FR 28545, 28547, May 26, 1999. In accordance with section 4(c) and
(e) of FRA's Procedures, the agency has further concluded that no
extraordinary circumstances exist with respect to this direct final
rule that might trigger the need for a more detailed environmental
review. As a result, FRA finds that this direct final rule is not a
major Federal action significantly affecting the quality of the human
environment.
Federalism Implications
FRA believes it is in compliance with Executive Order 13132. This
rulemaking action has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132. This rulemaking will
not have a substantial direct effect on States, on the relationship
between the National Government and the States, or on the distribution
of power and the responsibilities among the various levels of
government, as specified in Executive Order 1312. Accordingly, FRA has
determined that this rulemaking will not have sufficient
[[Page 23334]]
federalism implications to warrant consultation with State and local
officials or the preparation of a federalism assessment. Accordingly, a
federalism assessment has not been prepared.
Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 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 the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $128,100,000 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. Because this direct final rule will
not change any regulatory requirements, this document will not result
in the expenditure, in the aggregate, of $128,100,000 or more in any
one year, and thus preparation of such a statement is not required.
Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking that: (1)(i) Is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) is designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
FRA has evaluated this direct final rule in accordance with Executive
Order 13211. Because the miscellaneous revisions will not change any
regulatory requirements, FRA has determined that this direct final rule
will not have a significant adverse effect on the supply, distribution,
or use of energy. Consequently, FRA has determined that this regulatory
action is not a ``significant energy action'' within the meaning of
Executive Order 13211.
Privacy Act Information
Interested parties should be aware that anyone is able to search
the electronic form of all comments received into any agency docket by
the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78) or you may visit http://www.regulations.gov.
List of Subjects
49 CFR Part 209
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Railroad safety, Reporting and recordkeeping
requirements.
49 CFR part 211
Administrative practice and procedure, Railroad safety.
Adoption of the Amendment
0
In consideration of the foregoing, FRA amends part 209 and part 211 of
chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:
PART 209--[AMENDED]
0
1. The authority citation for part 209 continues to read as follows:
Authority: 49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112,
20112, 20114; 28 U.S.C. 2461, note; and 49 CFR 1.49.
0
2. Section 209.301 is amended by revising paragraph (a) to read as
follows:
Sec. 209.301 Purpose and scope.
(a) This subpart prescribes the rules of practice for
administrative proceedings relating to the determination of an
individual's fitness for performing safety-sensitive functions under
the Federal railroad safety laws at 49 U.S.C. 20111(c).
* * * * *
0
3. Section 209.303 is revised to read as follows:
Sec. 209.303 Coverage.
This subpart applies to the following individuals:
(a) Railroad employees who are assigned to perform service subject
to the Hours of Service Act (49 U.S.C. Chapt. 211) during a duty tour,
whether or not the person has performed or is currently performing such
service, and any person who performs such service.
(b) Railroad employees or agents who:
(1) Inspect, install, repair, or maintain track and roadbed;
(2) Inspect, repair or maintain, locomotives, passenger cars, and
freight cars;
(3) Conduct training and testing of employees when the training or
testing is required by the FRA's safety regulations; or
(4) Perform service subject to the Transportation of Hazardous
Materials laws (49 U.S.C. Chapt. 51), or any regulation or order
prescribed thereunder;
(c) Railroad managers, supervisors, or agents when they:
(1) Perform the safety-sensitive functions listed in paragraphs (a)
and (b) of this section;
(2) Supervise and otherwise direct the performance of the safety-
sensitive functions listed in paragraphs (a) and (b) of this section;
or
(3) Are in a position to direct the commission of violations of any
of the requirements of parts 213 through 241 of this title, or any of
the requirements of 49 U.S.C. Chapt. 51, or any regulation or order
prescribed thereunder.
0
4. Section 209.327 is amended by revising paragraph (c) to read as
follows:
Sec. 209.327 Appeal.
* * * * *
(c) The Administrator may extend the period for filing an appeal or
a response for good cause shown, provided the written request for
extension is served before the expiration of the applicable period
provided in paragraph (a) or (b) of this section.
* * * * *
0
5. Section 209.329 is revised to read as follows:
Sec. 209.329 Assessment considerations.
(a) Proof of a respondent's willful violation of one of the
requirements of parts 213 through 241 (excluding parts 225, 228, and
233) of this title, or of one of the requirements of 49 U.S.C. Chapt.
51, or any regulation or order prescribed thereunder, establishes a
rebuttable presumption that the respondent is unfit to perform the
safety-sensitive functions described in Sec. 209.303. Where such
presumption arises, the respondent has the burden of establishing that,
taking account of the factors in paragraph (b) of this section, he or
she is fit to perform the foregoing safety-sensitive functions for the
period and under the other
[[Page 23335]]
conditions, if any, proposed in the notice of proposed
disqualification.
(b) In determining respondent's lack of fitness to perform safety-
sensitive functions and the duration and other conditions, if any, of
appropriate disqualification orders under Sec. Sec. 209.309, 209.323,
and 209.327, the factors to be considered, to the extent each is
pertinent to the respondent's case, include but are not limited to the
following:
(1) The nature and circumstances of the violation, including
whether the violation was intentional, technical, or inadvertent, was
committed willfully, or was frequently repeated;
(2) The adverse impact or the potentially adverse impact of the
violation on the health and safety of persons and the safety of
property;
(3) The employing railroad's operating rules, safety rules, and
repair and maintenance standards;
(4) Repair and maintenance standards adopted by the railroad
industry;
(5) The consistency of the conditions of the proposed
disqualification with disqualification orders issued against other
employees of the employing railroad for the same or similar violations;
(6) Whether the respondent was on notice of any safety regulations
that were violated or whether the respondent had been warned about the
conduct in question;
(7) The respondent's past record of committing violations of safety
regulations, including previous FRA warnings issued, disqualifications
imposed, civil penalties assessed, railroad disciplinary actions, and
criminal convictions therefor;
(8) The civil penalty scheduled for the violation of the safety
regulation in question;
(9) Mitigating circumstances surrounding the violation, such as the
existence of an emergency situation endangering persons or property and
the need for the respondent to take immediate action; and
(10) Such other factors as may be warranted in the public interest.
PART 211--[AMENDED]
0
6. The authority citation for part 211 continues to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504,
and 49 CFR 1.49.
0
7. Section 211.45 is revised to read as follows:
* * * * *
Sec. 211.45 Petitions for emergency waiver of safety rules.
(a) General. This section applies only to petitions for waiver of a
safety rule, regulation, or standard that FRA determines are directly
related to the occurrence of, or imminent threat of, an emergency event
or an emergency situation. For purposes of this section, the terms
``emergency event'' and ``emergency situation'' mean a natural or
manmade disaster, such as a hurricane, flood, earthquake, mudslide,
forest fire, snowstorm, terrorist act, biological outbreak, release of
a dangerous radiological, chemical, explosive, or biological material,
or a war-related activity, that poses a risk of death, serious illness,
severe injury, or substantial property damage. The disaster may be
local, regional, or national in scope.
(b) Emergency Relief Docket. Each calendar year FRA creates an
Emergency Relief Docket (ERD) in the publicly accessible Federal
eRulemaking Portal (FeP). The FeP can be accessed 24 hours a day, seven
days a week, via the Internet at the docket's Web site at http://www.regulations.gov. All documents in the FeP are available for
inspection and copying on the Web site or are available for examination
at the DOT Docket Management Facility, West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590 during regular
business hours (9 a.m.-5 p.m.). By January 31st of each year, FRA
publishes a notice in the Federal Register identifying by docket number
the ERD for that year. A notice will also be placed in the previous
year's ERD identifying the new docket number.
(c) Determining the existence of an emergency event or an emergency
situation. If the Administrator determines that an emergency event or
an emergency situation identified in paragraph (a) of this section has
occurred, or that an imminent threat of it occurring exists, and
determines that public safety or recovery efforts require that the
provisions of this section be implemented, the Administrator will
activate the Emergency Relief Docket identified in paragraph (b) of
this section. In determining whether an emergency exists, the
Administrator may consider declarations of emergency made by local,
State, or Federal officials, and determinations by the Federal
government that a credible threat of a terrorist attack exists.
(d) Notification. When possible, FRA will post the FRA
Administrator's determination described in paragraph (c) of this
section on its Web site at http://www.fra.dot.gov. FRA will also place
the FRA Administrator's determination in the ERD as soon as
practicable.
(e) Content of petitions for emergency waivers. Petitions submitted
to FRA pursuant to this section should specifically address how the
petition is related to the emergency, and to the extent practicable,
contain the information required under Sec. 211.9(a) and (b). The
petition should at a minimum describe the following: how the petitioner
or public is affected by the emergency (including the impact on
railroad operations); what FRA regulations are implicated by the
emergency (e.g., movement of defective equipment); how waiver of the
implicated regulations would benefit petitioner during the emergency;
and how long the petitioner expects to be affected by the emergency.
(f) Filing requirements. Petitions filed under this section, shall
be submitted using any of the following methods:
(1) E-mail to FRA at: [email protected];
(2) Facsimile to FRA at: 202-493-6309; or
(3) Mail to FRA at: FRA Docket Clerk, Office of Chief Counsel, RCC-
10, Mail Stop 10, 1200 New Jersey Ave. SE., Washington, DC 20590,
facsimile no. 202-493-6068.
(g) FRA Handling and Initial Review. Upon receipt and initial
review of a petition for waiver, to verify that it meets the criteria
for use of these emergency procedures, FRA will add the petition to the
ERD. The FeP numbers each document that is added to a docket. (For
example, the first document submitted to the docket in 2009 will be
identified as FRA-2009-XXX-1.) Thus, each petition submitted to the ERD
will have a unique document number which should be identified on all
communications related to petitions contained in this docket. If FRA
determines that the petition does not meet the criteria for use of
these emergency procedures, FRA will notify the petitioner and will
process the petition under normal waiver procedures of this subpart.
(h) Comments. Although the Administrator may waive compliance with
any part of a regulation prescribed or order issued without prior
notice and comment, comments may be submitted. Comments should be
submitted as soon as possible, after a petition is available on the
FeP. Any comment received will be considered to the extent practicable.
All comments should identify the appropriate ERD and should identify
the specific document number of the petition designated by the FeP in
the ERD. Interested parties commenting on
[[Page 23336]]
a petition under this section should also include in their comments to
the ERD telephone numbers at which their representatives may be
reached. Interested parties may submit their comments using any of the
following methods:
(1) E-mail to FRA at: [email protected].
(2) Facsimile to FRA at: 202-493-6309.
(3) Mail to the Docket Clerk, DOT Docket Management Facility, West
Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE.,
Washington, DC 20590 or electronically via the internet at http://www.regulations.gov. Any comments or information sent directly to FRA
will be immediately provided to the DOT FeP for inclusion in the ERD.
(i) Request for hearing. Although the Administrator may waive
compliance with any part of a regulation prescribed or order issued
without prior notice and comment, parties desiring a public hearing on
any petition being processed under this section must notify FRA through
the comment process identified in paragraph (h) of this section within
72 hours from the close of business on the day that the petition is
entered into and available on the FeP. In response to a request for a
public hearing, FRA may:
(1) Arrange a telephone conference between all interested parties
to provide an opportunity for oral comment;
(2) Arrange a public hearing pursuant to the provisions contained
in 49 CFR part 211; or
(3) Determine that a public hearing is unnecessary, inconsistent
with safety, or not in the public interest.
(j) Decisions. FRA may grant a petition for waiver without prior
notice and comment if the Administrator determines that it is in the
public interest to grant the waiver; the waiver is not inconsistent
with railroad safety; and the waiver is necessary to address an actual
or impending emergency situation or emergency event. The Administrator
will state in the decision issued under this section the reasons for
granting the waiver.
(1) FRA reserves the right to reopen any docket and reconsider any
decision made pursuant to these emergency procedures based upon its own
initiative or based upon information or comments otherwise received.
(2) FRA decision letters, either granting or denying a petition,
will be posted in the appropriate ERD and will reference the document
number of the petition to which it relates.
(3) A waiver under this section may be issued for a period of not
more that 60 days and may be renewed upon application to the
Administrator only after notice and an opportunity for a hearing on the
waiver. The Administrator will immediately revoke the waiver if
continuation of the waiver would not be consistent with the goals and
objectives of this part.
(4) In granting a waiver under this section, the Administrator will
consult and coordinate with other Federal agencies, as appropriate, for
matters that may significantly impact such agencies.
Issued in Washington, DC, on May 13, 2009.
Joseph Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. E9-11598 Filed 5-18-09; 8:45 am]
BILLING CODE 4910-06-P