[Federal Register Volume 67, Number 250 (Monday, December 30, 2002)]
[Rules and Regulations]
[Pages 79533-79536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32766]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[FRA-1998-4898, Notice No. 5]
RIN 2130-AB57


Retention of Current Monetary Threshold for Reporting Rail 
Equipment Accident/Incidents During Calendar Year 2003 and Until 
Further Amended

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

ACTION: Interim final rule with request for comments.

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SUMMARY: This Interim Final Rule establishes at $6,700 the monetary 
threshold for reporting certain railroad accidents/incidents involving 
railroad property damage that occur during calendar year 2003 and, 
until further notice, during subsequent calendar years. The 2003 
threshold remains the same as the threshold for calendar year 2002 due 
to the unavailability of Bureau of Labor Statistics wage data that were 
previously used to calculate the threshold. FRA is not calculating a 
new threshold; rather, the old one is being retained as it is not 
possible to calculate a new threshold with the current formula due to 
the lack of BLS data. FRA will be providing notice and seeking comment 
at a future date to establish a new formula for calculating the 
monetary threshold for reporting rail equipment accidents/incidents. 
This action is needed to ensure and maintain comparability between 
different years of accident data by having the threshold

[[Page 79534]]

keep pace with any increases or decreases in equipment and labor costs 
so that each year accidents involving the same minimum amount of 
railroad property damage are included in the reportable accident 
counts.

DATES: (1) This regulation is effective January 1, 2003.
    (2) Written Comments: Written comments must be received by February 
28, 2003. Comments received after that date will be considered to the 
extent possible without incurring additional expense or delay.

ADDRESSES: Anyone wishing to file a comment should refer to the FRA 
docket and notice numbers (Docket No. FRA-1998-4898, Notice No. 5). You 
may submit your comments and related material by only one of the 
following methods:
    By mail to the Docket Management System, United States Department 
of Transportation, room PL-401, 400 7th Street, SW., Washington, DC 
20590-0001; or electronically through the Web site for the Docket 
Management System at http://dams.dot.gov. For instructions on how to 
submit comments electronically, visit the Docket Management System Web 
site and click on the ``Help'' menu.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments, and documents as indicated in this preamble, will 
become part of this docket and will be available for inspection or 
copying at room PL-401 on the Plaza Level of the Nassif Building at the 
same address during regular business hours. You may also obtain access 
to this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Robert L. Finkelstein, Staff Director, 
Office of Safety Analysis, RRS-22, Mail Stop 17, FRA, 1120 Vermont 
Ave., NW., Washington, DC 20590 (telephone 202-493-6280) or Roberta 
Stewart, Trial Attorney, Office of Chief Counsel, RCC-12, Mail Stop 10, 
FRA, 1120 Vermont Ave., NW., Washington, DC 20590 (telephone 202-493-
6027).

SUPPLEMENTARY INFORMATION: 

Background

    A ``rail equipment accident/incident'' is a collision, derailment, 
fire, explosion, act of God, or other event involving the operation of 
railroad on-track equipment (standing or moving) that causes reportable 
damages greater than the reporting threshold for the year in which the 
event occurs. 49 CFR 225.19(c). Each rail equipment accident/incident 
must be reported to FRA using the Rail Equipment Accident/Incident 
Report (Form FRA F 6180.54). 49 CFR 225.19(b), (c). As revised, 
effective in 1997, paragraphs (c) and (e) of 49 CFR 225.19 provide that 
the dollar figure that constitutes the reporting threshold for rail 
equipment accidents/incidents will be adjusted, every year in 
accordance with the procedures outlined in appendix B to part 225, to 
reflect any cost increases or decreases. 61 FR 30942, 30969 (June 18, 
1996); 61 FR 60632, 60634 (Nov. 29, 1996); 61 FR 67477, 67490 (Dec. 23, 
1996). As stated in the procedures in appendix B, information from the 
Bureau of Labor Statistics (BLS) is used to calculate the threshold. 
``The equation used to adjust the reporting threshold uses the average 
hourly earnings reported for Class I railroads and Amtrak and an 
overall railroad equipment cost index determined by the BLS.'' 49 CFR 
part 225, App. B, paragraph 1. The formula set forth in appendix B is 
consistent with 49 U.S.C. 20901(b), which reads as follows:
    (b) Monetary threshold for reporting.
    (1) In establishing or changing a monetary threshold for the 
reporting of a railroad accident or incident, the Secretary shall base 
damage cost calculations only on publicly available information 
obtained from--
    (A) the Bureau of Labor Statistics; or
    (B) another department, agency, or instrumentality of the United 
States Government if the information has been collected through 
objective, statistically sound survey methods or has been previously 
subject to a public notice and comment process in a proceeding of a 
Government department, agency, or instrumentality.
    (2) If information is not available as provided in paragraph (1)(A) 
or (B) of this subsection, the Secretary may use any other source to 
obtain the information. However, use of the information shall be 
subject to public notice and an opportunity for written comment.

New Reporting Threshold

    Approximately one year has passed since the rail equipment 
accident/incident reporting threshold was last reviewed and revised. 66 
FR 66346 (Dec. 26, 2001). However, FRA will not be recalculating the 
threshold this year based on the current formula in appendix B. The 
threshold from calendar year 2002, $6,700, will remain in place. The 
reason for this is that the BLS is no longer publishing the figures 
necessary for FRA to compute the wage component of the equation, i.e., 
the average hourly earnings of production workers for Class I railroads 
and Amtrak, due to inadequate sampling data. Specifically, the Class I 
railroads and Amtrak have not provided the monthly hours and earnings 
data for production workers that BLS needs to publish these numbers for 
calendar year 2002. BLS does not foresee a better response rate in 
future years and, as a result, is completely changing its methodology 
and the information that it publishes. Therefore, it is not possible 
for FRA to calculate a new threshold based on the current formula. The 
calendar year 2002 threshold of $6,700 will be held over for calendar 
year 2003 and until further notice so that a threshold remains in 
place. Beginning in calendar year 2003, FRA will develop a new method 
for calculating the accident reporting threshold in a separate notice-
and-comment rulemaking consistent with 49 U.S.C. 20901(b).
    The threshold amount of $6,700 will remain in effect on January 1, 
2003. Sections 225.5 and 225.19 and appendix B have been amended to 
state that the reporting threshold is $6,700 for calendar year 2003 
and, until further notice, for subsequent calendar years.

Notice-and-Comment Procedures

    Although FRA is soliciting comments, FRA believes that it is 
necessary to issue this Interim Final Rule immediately in order to 
ensure that a monetary accident/incident reporting threshold remains in 
place while FRA proposes and establishes a new method for calculating 
the threshold, based on different data. Because a threshold must be in 
place at the beginning of calendar year 2003, extended notice-and-
comment procedures are ``impracticable, unnecessary, or contrary to the 
public interest'' within the meaning of section 4(b)(3)(B) of the 
Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B). It is currently 
impossible for FRA to calculate a new threshold based on the current 
formula, and there is not enough time to create, propose and issue a 
new methodology for establishing a threshold consistent with 49 U.S.C. 
20901(b) before January 1, 2003. As a consequence, FRA is proceeding 
directly to an Interim Final Rule.
    However, in accordance with Executive Order 12866, FRA is allowing 
60 days for comments. FRA believes that a 60-day comment period is 
appropriate to allow the public to comment on this Interim Final Rule. 
FRA solicits written comments on all aspects of this Interim Final 
Rule.
    FRA does plan to issue a notice of proposed rulemaking (NPRM) 
establishing a new formula for determining the amount of the reporting 
threshold.

[[Page 79535]]

Regulatory Impact

Executive Order 12866 and DOT Regulatory Polices and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures, and determined to be non-significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034; 
Feb. 26, 1979). This Interim Final Rule has also been reviewed under 
Executive Order 12866 and is also considered ``nonsignificant'' under 
that order.

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 published 
an interim policy that formally establishes ``small entities'' as being 
railroads that meet the line-haulage revenue requirements of a Class 
III railroad. 62 FR 43024 (Aug. 11, 1997). For other entities, the same 
dollar limit in revenues governs whether a railroad, contractor, or 
other respondent is a small entity.
    About 645 of the approximately 700 railroads in the United States 
are considered small businesses by FRA. FRA certifies that this Interim 
Final Rule will have no significant impact on a substantial number of 
small entities. To the extent that this rule has an impact on small 
entities, the impact will be neutral or insignificant. The frequency of 
rail equipment accidents/incidents, and therefore also the frequency of 
required reporting, is generally proportional to the size of the 
railroad. A railroad that employs thousands of employees and operates 
trains millions of miles is exposed to greater risks than one whose 
operation is substantially smaller. Small railroads may go for months 
at a time without having a reportable occurrence of any type, and even 
longer without having a rail equipment accident/incident. For example, 
a total number of 426 rail equipment accidents/incidents were reported 
as occurring in calendar year 2001. Of that number, only 24 were 
reported by small railroads. Hypothetically, if the cost of repairing 
rail equipment did slightly increase over the last year, and the 
monetary reporting threshold for the new year remained the same, it is 
possible that a small number of accidents would become reportable that 
would not be reportable if the threshold were increased to account for 
the increased costs. Therefore, this rule will be neutral in effect for 
railroads who do not experience any rail equipment accidents/incidents. 
For railroads that do experience a rail equipment accident/incident, it 
is possible that there would be a slight increase in the number of 
reportable accidents, and thus as slight increase of the reporting 
burden. This burden would not be significant, and would affect the 
large railroads more than the small entities.
    The American Shortline and Regional Railroad Association (ASLRRA) 
represents the interests of most small freight railroads and some 
excursion railroads operating in the United States. FRA field offices 
and the ASLRRA engage in various outreach activities with small 
railroads. For instance, when new regulations are issued that affect 
small railroads, FRA briefs the ASLRRA, which in turn disseminates the 
information to its members and provides training as appropriate. When a 
new railroad is formed, FRA safety representatives visit the operation 
and provide information regarding applicable safety regulations. FRA 
regularly addresses questions and concerns regarding regulations raised 
by railroads. Because this Interim Final Rule is not anticipated to 
significantly affect small railroads, FRA is not providing alternative 
treatment for small railroads under this rule.

Paperwork Reduction Act

    There are no new information collection requirements associated 
with this Interim Final Rule. Therefore, no estimate of a public 
reporting burden is required.

Federalism Implications

    Executive Order 13132, entitled, ``Federalism,'' issued on August 
4, 1999, requires that each agency ``in a separately identified portion 
of the preamble to the regulation as it is to be issued in the Federal 
Register, provided to the Director of the Office of Management and 
Budget a federalism summary impact statement, which consists of a 
description of the extent of the agency's prior consultation with State 
and local officials, a summary of the nature of their concerns and the 
agency's position supporting the need to issue the regulation, and a 
statement of the extent to which the concerns of the State and local 
officials have been met * * *.'' This rulemaking action has been 
analyzed in accordance with the principles and criteria contained in 
Executive Order 13132. This rule 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 the Executive Order 13132. Accordingly, FRA has determined that this 
rule will not have sufficient 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.

Environmental Impact

    FRA has evaluated this regulation 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 regulation 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. Section 4(c)(20) reads as follows:
    (c) Actions Categorically Excluded. Certain classes of FRA actions 
have been determined to be categorically excluded from the requirements 
of these Procedures as they do not individually or cumulatively have a 
significant effect on the human environment. * * * The following 
classes of FRA actions are categorically excluded: * * *
    (20) Promulgation of railroad safety rules and policy statements 
that do not result in significantly increased emissions of air or water 
pollutants or noise or increased traffic congestion in any mode of 
transportation.
    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 regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that the 
regulation is not a major Federal action significantly affecting the 
quality of the human environment.

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

[[Page 79536]]

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 
$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 Interim Final Rule would not 
result in the expenditure, in the aggregate, of $100,000,000 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: (1)(i) That is a significant regulator 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) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this Interim Final Rule in accordance with 
Executive Order 13211. FRA has determined that this Interim Final Rule 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Consequently, FRA has determined that 
this regulator action is not a ``significant energy action'' within the 
meaning of Executive Order 13211.

List of Subjects in 49 CFR Part 225

    Investigations, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

The Rule

    In consideration of the foregoing, FRA amends part 225, title 49 
Code of Federal Regulations as follows:

PART 225--RAILROAD ACCIDENT/INCIDENTS: REPORTS CLASSIFICATION, AND 
INVESTIGATIONS

    1. The authority citation for part 225 continues to read as 
follows;

    Authority: 49 U.S.C. 20103, 20107, 20901, 20902, 21302, 21311; 
49 U.S.C. 103; 49 CFR 1.49.

     2. By amending Sec.  225.19 by adding a heading for paragraph (c), 
revising the first and last sentences of paragraph (c) and revising 
paragraph (e) to read as follows:


Sec.  225.19   Primary groups of accidents/incidents.

    (c) Group II--Rail equipment. Rail equipment accidents/incidents 
are collisions, derailments, fires, explosions, acts of God, and other 
events involving the operation of on-track equipment (standing or 
moving) that result in damages higher than the current reporting 
threshold (i.e., $6,300 for calendar years 1991 through 1966, $6,500 
for calendar year 1997, and $6,700 for calendar years 2002 and 2003 
and, until further notice, for calendar years thereafter) to railroad 
on-track equipment, signals, tracks, track structures, or roadbed, 
including labor costs and the costs for acquiring new equipment and 
material.* * * The reporting threshold will be reviewed periodically, 
and, if necessary, will be adjusted every year.
* * * * *
    (e) The reporting threshold is $6,300 for calendar years 1991 
through 1996. The reporting threshold is $6,500 for calendar year 1997, 
$6,600 for calendar years 1998 through 2001, and $6,700 for calendar 
years 2002 and 2003 and, until further notice, for calendar years 
thereafter. The procedure for determining the reporting threshold for 
calendar years 1997 through 2002 appears as paragraphs 1-9 of appendix 
B to part 225. The primary rationale for the reporting threshold 
established for calendar year 2003 and, until further notice, for 
subsequent calendar years, appears as paragraph 10 of appendix B to 
part 225.

    3. Part 225 is amended by revising paragraph 9 of appendix B and 
adding new paragraph 10 to appendix B to read as follows:

Appendix B to Part 225--Procedure for Determining Reporting Threshold

* * * * *
    9. The result of these calculations is $6,682.254777. Since the 
result is rounded to the nearest $100, the reporting threshold for rail 
equipment accidents/incidents that occur during calendar year 2002 is 
$6,700.
    10. In the absence of data necessary to compute the reporting 
threshold for calendar year 2003 according to the procedure described 
in paragraphs 1-9 of this appendix B, the calendar year 2002 threshold 
of $6,700 remains in effect for calendar year 2003 and, until further 
notice, for all subsequent years.

    Issued in Washington, DC., on December 19, 2002.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 02-32766 Filed 12-27-02; 8:45 am]
BILLING CODE 4910-06-M