[Federal Register Volume 71, Number 168 (Wednesday, August 30, 2006)]
[Rules and Regulations]
[Pages 51517-51522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7292]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 211

[Docket No. FRA-2006-24838]
RIN 2130-AB79


Establishment of Emergency Relief Dockets and Procedures for 
Handling Petitions for Emergency Waiver of Safety Regulations

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

ACTION: Interim final rule; request for comments.

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SUMMARY: FRA is issuing procedures governing the creation of Emergency 
Relief Dockets (ERD) as well as procedures for obtaining waivers from a 
safety rule, regulation, or standard during an emergency situation or 
event. FRA's purpose for establishing the ERD and emergency waiver 
procedures is to provide an expedited process for FRA to address the 
needs of the public and the railroad industry during emergency 
situations or events.

DATES: This interim final rule is effective August 30, 2006; written 
comments must be received on or before October 30, 2006. Comments 
received after that date will be considered to the extent possible 
without incurring additional expense or delay.

ADDRESSES: Comments: Any comments related to Docket No. FRA-2006-24838, 
may be submitted by any of the following methods:
     Web Site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., 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://dms.dot.gov including any personal information. Please 
see the General Information heading in the SUPPLEMENTARY INFORMATION 
section of this document for Privacy Act information related to any 
submitted comments or materials.
    Public Hearing: Due to the limited scope of this interim final 
rule, FRA is not scheduling a public hearing at this time. However, FRA 
will consider any request for an opportunity to make an oral 
presentation that is filed as noted above by the deadline for written 
comments.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to PL-401 on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
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, 1120 
Vermont Avenue, NW., RRS-2, Mail Stop 25, Washington, DC 20590 
(Telephone 202-493-6302), or Michael Masci, Trial Attorney, Office of 
Chief Counsel, FRA, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, 
DC 20590 (Telephone 202-493-6037).

SUPPLEMENTARY INFORMATION:

Background

    FRA is establishing emergency waiver procedures so that the agency 
can quickly address waiver requests in emergency situations while 
continuing to provide an opportunity for public input in the process. 
Based on lessons learned from last year's Hurricane Katrina, FRA is 
establishing procedures that allow the agency to expeditiously handle 
waiver requests that are directly related to an emergency situation or 
event. This will permit FRA to provide railroads necessary operational 
relief in a more timely manner 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 railroad 
efforts to cope with the emergency and to provide timely relief and 
recovery efforts. FRA's existing procedures related to the handling of 
petitions for waiver from the Federal rail safety regulations contained 
in 49 CFR part 211, do not lend themselves to quick and immediate 
decisions by the agency, nor were they intended to. The existing 
procedures establish a process whereby FRA publishes a notice of any 
petition for waiver in the Federal Register. This notice then allows 
interested parties a period of time in which to comment on any such 
petition, generally thirty (30) days, and provides for a public hearing 
should one be requested. This process generally takes several months to 
accomplish. Accordingly, FRA

[[Page 51518]]

instituted a temporary set of expedited procedures for handling 
petitions for waivers that were directly related to the effects and 
aftermath of Hurricane Katrina.
    To prepare for future emergencies, FRA is issuing procedures for 
handling petitions for waivers in emergency situations. These 
procedures are based on the temporary procedures that were instituted 
in response to Hurricane Katrina. FRA believes that the emergency 
procedures contained in this interim final rule provide the agency with 
the ability to promptly and effectively address waiver requests 
directly related to an emergency while ensuring that the public and all 
interested parties are afforded proper notice of any such request, and 
are provided a sufficient opportunity to comment on any such request.
    When faced with a sudden emergency event or situation the 
Administrator may activate the emergency waiver procedures contained in 
this interim final rule. FRA will consider local, state and Federal 
declarations of emergency when determining whether circumstances 
qualify as an emergency event. To declare that the emergency waiver 
procedures are in effect, the Administrator will issue a statement in 
the Document Management System (DMS) at http://dms.dot.gov. The DMS 
will automatically notify parties that have signed up for the Emergency 
Waiver Listserv. (Instructions on how to sign up for automatic 
notification of additions to a docket are found at http://dms.dot.gov.) 
In addition, FRA will make every effort to post the statement on its 
Web site http://www.fra.dot.gov/. FRA will also publish a notice in the 
Federal Register alerting interested parties that the emergency waiver 
procedures will be utilized. FRA anticipates that the circumstances 
that constitute the occurrence of, or imminent threat of an emergency 
event will occur infrequently.
    The types of emergency events intended to be covered by this 
interim final rule could be local, regional, national or international 
in scope and could include natural and manmade disasters, such as 
hurricanes, floods, earthquakes, mudslides, forest fires, snowstorms, 
terrorist acts, increased threat levels, chemical or biological 
attacks, pandemic outbreaks, releases of dangerous radiological, 
chemical, or biological material, or war-related activities. Not only 
will our Nation's railroads be directly affected by many emergency 
events, they will also play a key role in the aftermath of those 
events, by providing necessary supplies and by moving displaced 
families and relief personnel to and from an affected area. Although 
the type of relief that might be granted under these provisions would 
vary greatly based on the type of emergency event involved, it is 
expected that the relief would generally involve such things as: 
Temporary postponement of required maintenance, repair, or inspection 
related to railroad equipment, track, and signals; temporary relief 
from certain record keeping or reporting requirements; or short-term 
relief from various operational requirements. Relief granted will not 
extend for more than nine months. For matters that may significantly 
impact the missions of the Department of Homeland Security (DHS), FRA 
will consult and coordinate with DHS as soon as practicable.
    FRA will establish a new ERD each calendar year. FRA will publish a 
notice in the Federal Register identifying the new docket number by 
January 31st of each year. When the Administrator determines the 
occurrence of, or imminent threat of, an emergency event, FRA will 
accept emergency waiver petitions for review. If FRA determines that a 
petition is directly related to an emergency situation, the petition 
will be placed in the ERD for that year. FRA will receive comments on a 
petition for 72 hours from the time the petition is posted on the ERD. 
During that time, FRA will arrange a telephone conference for any party 
that requests a public hearing. If, after the telephone conference, a 
public hearing is still desired, then FRA will arrange for such a 
hearing pursuant to 49 CFR part 211 as soon as practicable. These 
procedures are intended to balance the need for expedited waiver 
procedures during an emergency event to ensure public safety, and the 
need for adequate time to allow full public participation. The ERD and 
emergency waiver procedures contained in this interim final rule do not 
waive any regulatory requirements. They only reduce the length of the 
notice and comment period to permit FRA to act on the request as 
quickly as possible.

Section-by-Section Analysis

Processing of Emergency Waivers Sec.  211.45

    Sec.  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 and public 
safety would benefit from providing the railroad industry with 
operational relief. The types of emergency events intended to be 
covered by this interim final rule could be local, regional, national 
or international in scope and could include natural and manmade 
disasters, such as hurricanes, floods, earthquakes, mudslides, forest 
fires, snowstorms, terrorist acts, increased threat levels, chemical or 
biological attacks, pandemic releases of dangerous radiological, 
chemical, or biological material, or war-related activities.
    Sec.  211.45(b). This paragraph contains information regarding 
FRA's creation of ERDs. 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 situation occurred. The docket system will also provide notice 
to interested parties. The DMS internet site that is identified in this 
interim final rule allows any interested party to subscribe, without 
fee, to its list serve application which will automatically notify the 
party 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 
subscribe to the DMS list serve application. Publishing a notice in the 
previous year's ERD will allow the parties interested in the prior year 
to automatically receive the new docket number.
    Sec.  211.45(c). This paragraph identifies 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

[[Page 51519]]

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. FRA's statement declaring that emergency 
procedures are in effect will be issued in the appropriate ERD. The DMS 
internet site that is identified in the rule text allows any interested 
party to subscribe, without fee, to its list serve application which 
automatically notifies the party via e-mail when documents are added to 
the appropriate ERD. The Administrator's determination that emergency 
waiver procedures are in effect, would be one of those documents 
automatically transmitted to interested parties via e-mail. 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 
terrorist attack exists. A determination made by one of these officials 
that a state of emergency exists, indicates that special attention is 
needed to address the situation, and railroad operations may be 
implicated. The Administrator will consider whether such emergencies 
significantly affect railroad operations, and whether it would be 
beneficial to activate the emergency waiver procedures.
    Sec.  211.45(d). This paragraph identifies other 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 publish a notice in the Federal Register as 
soon as possible after the Administrator's determination to ensure full 
notification to all interested parties.
    Sec.  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. 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 and the waiver relief being sought.
    Sec.  211.45(f). This paragraph instructs the public how to submit 
a petition under the emergency waiver procedures. FRA is permitting 
submission by e-mail, fax, 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.
    Sec.  211.45(g). This paragraph contains information regarding 
FRA's handling of waiver petitions under the emergency waiver 
procedures. After the 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 DMS 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.
    Sec.  211.45(h). This paragraph explains the comment process. FRA 
believes that 72 hours is a reasonable length of time to consider 
comments in an emergency situation. During hurricane Katrina, public 
safety was well served by FRA's expedited emergency waiver procedures. 
Similarly, during future emergency situations the public interest will 
require an expedited review process to ensure public safety. FRA 
believes that the emergency waiver procedures and the need to quickly 
address these types of waiver petitions fall within the good cause 
exemption under section 553 of the Administrative Procedure Act 
relating to providing prior notice and comment. Nonetheless, FRA is 
providing notice to interested parties and is permitting a short 
comment period prior to taking any agency action. Moreover, FRA is 
providing an opportunity for a public hearing as soon as practicable 
after initial consideration of an emergency waiver petition.
    Sec.  211.45(i). This paragraph describes how FRA will handle 
requests for hearing. FRA believes that a telephone conference will 
provide interested parties with an opportunity to present evidence 
regarding a particular petition to a neutral decision maker. If a party 
requests a public hearing after the telephone conference, FRA will 
provide one as soon as practicable. During an emergency the public 
interest requires that an expedited waiver process be utilized.
    Sec.  211.45(j). This paragraph identifies the process by which FRA 
will make decisions on emergency waivers including: FRA's consideration 
of the petition; notification to the public of FRA's decision; and the 
limits of any relief granted under the procedures. The ability to grant 
or deny a petition without delay is essential to ensuring public safety 
during an emergency. The opportunity to reconsider a petition after the 
initial decision is made will ensure a robust deliberation. Under 
circumstances where reconsideration is appropriate, FRA will utilize 
additional time to consider the parties' input.
    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. This will also ensure that FRA has the opportunity 
to address all relevant arguments made by interested parties anytime 
after its initial consideration of a petition. During an emergency it 
is a priority to address petitions for emergency waiver and make a 
decision without delay. Relevant comments may be submitted after the 
72-hour comment period, and the public will benefit from ensuring that 
FRA has the opportunity to address those comments as soon as 
practicable.
    Posting the decision letters in the appropriate ERD will provide 
notice to interested parties. The DMS internet site that is identified 
in the rule text allows any interested party to subscribe, without fee, 
to its list serve application which will automatically notify the party 
via e-mail when documents are added, including the Administrator's 
determination that emergency waiver procedures are in effect, to the 
designated ERD.
    This paragraph also makes clear that any relief granted under these 
procedures will be limited to no more than nine months. If relief is 
needed for a period of time beyond nine months, a petition can be 
submitted through the traditional waiver process. Where issues of 
safety and security overlap, it may be necessary for FRA to coordinate 
with DHS.

General Information

    Considering that the ERD and procedures for emergency waiver 
petitions are procedural modifications that will not change any 
regulatory requirements, together with the need to issue these 
procedural changes as soon as possible since we have entered the 
official hurricane season, FRA is issuing

[[Page 51520]]

this document as an interim final rule with a request for comments. 
Congress authored a good cause exemption to the informal rulemaking 
procedures to address emergencies (such as a response to a natural 
disaster) that might arise justifying issuance of a rule without prior 
public participation. As hurricane season begins again, unfortunately, 
another emergency event could occur immediately. The public would 
benefit from having the emergency waiver procedures in place before the 
emergency exists. Delay in the adoption of these procedures for 
expediting waivers could cause serious harm to the public and the rail 
industry. In contrast to the potential harm that could be caused by 
delay, the impact of the procedural modifications on the public will be 
minimal. This rule merely expedites the already-existing waiver process 
during an emergency.
    Consequently, pursuant to 5 U.S.C. 553(b)(3)(B), FRA believes that 
good cause exists for finding that prior public notice of this action 
is both impracticable and unnecessary. However, FRA is requesting 
written comments on the content of this interim final rule and, if any 
are received, FRA will address them when issuing the final rule.
    Immediate action is necessary to avoid disruption to the rail 
industry during a future emergency. Delaying the effective date of this 
rule during hurricane season would be impracticable, unnecessary, and 
contrary to the public interest. The rule establishes procedures that 
will benefit the rail industry and general public during an emergency. 
Having expedited emergency waiver procedures available during a future 
emergency will allow FRA to make timely decisions and provide relief 
from safety regulations.

Privacy

    All potential commenters 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://dms.dot.gov.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This interim final rule has been evaluated in accordance with 
Executive Order 12866 and DOT policies and procedures. The 
modifications contained in this interim final rule are not considered 
significant because they are intended to merely institute an emergency 
relief docket, and establish internal FRA procedures for handling 
waivers directly related to an emergency. This interim final rule will 
not change any regulatory requirements. The economic impact of the 
procedures and establishment of the docket contained in this interim 
final rule will not affect the cost of compliance with the existing 
regulations.

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. 
FRA certifies that this interim final rule does not have a significant 
impact on a substantial number of small entities. Because the 
procedures and the establishment of an emergency docket contained in 
this rule does not change regulatory requirements, FRA has concluded 
that there are no substantial economic impacts on small units of 
government, businesses, or other organizations.

Paperwork Reduction Act

    This interim final rule does not change any of the information 
collection requirements.

Environmental Impact

    FRA has evaluated this interim 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) of FRA's Procedures.

Federalism Implications

    FRA believes it is in compliance with Executive Order 13132. 
Because the emergency docket and procedures for emergency waiver 
petitions will not change any regulatory requirements, this document 
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. 
This interim final rule will not have federalism implications that 
impose any direct compliance costs on State and local governments.

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 the ERD and procedures for 
emergency waiver petitions 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: (1)(i) That 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) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated interim final rule in accordance with 
Executive Order 13211. Because the emergency docket and procedures for 
emergency waiver petitions will not change any regulatory requirements, 
FRA has determined that

[[Page 51521]]

this document 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.

List of Subjects in 49 CFR Part 211

    Administrative practice and procedure, Railroad safety.

Adoption of the Amendment

0
In consideration of the foregoing, part 211 of Chapter II of Title 49 
of the Code of Federal Regulations is amended to read as follows:

PART 211--RULES OF PRACTICE

0
1. 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
2. Section 211.45 is added to subpart C 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. For purposes of this section an emergency event could be local, 
regional, or national in scope and includes a natural or manmade 
disaster, such as a hurricane, flood, earthquake, mudslide, forest 
fire, significant snowstorm, terrorist act, biological outbreak, 
release of a dangerous radiological, chemical, or biological material, 
war-related activity, or other similar event.
    (b) Emergency Relief Docket. Each calendar year FRA creates an 
Emergency Relief Docket (ERD) in the publicly accessible DOT Document 
Management System (DMS). The DMS can be accessed 24 hours a day, seven 
days a week, via the Internet at the docket facility's Web site at 
http://dms.dot.gov. All documents in the DMS are available for 
inspection and copying on the Web site or are available for examination 
at the DOT Docket Management Facility, Room PL-401 (Plaza Level), 400 
7th Street, SW., 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 published in the previous year's ERD 
identifying the new docket number.
    (c) Determining the existence of an emergency event. If the 
Administrator determines that an emergency event 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 (d) 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 Federal 
government that a credible threat of a terrorist attack exists.
    (d) Additional notification. When possible, FRA will post the FRA 
Administrator's determination described in paragraph (b)(1) of this 
section on its Web site at http://www.fra.dot.gov. FRA will also 
publish a notice in the Federal Register alerting interested parties of 
the FRA Administrator's determination 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) Direct e-mail to FRA at: [email protected];
    (2) Direct fax to FRA at: 202-493-6309; or
    (3) To FRA Docket Clerk, Office of Chief Counsel, RCC-10, Mail Stop 
10, 1120 Vermont Avenue, NW., Washington, DC 20590, fax 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 DMS numbers each document that is added to a docket. (For 
example, the first document submitted to the docket in 2006 will be 
identified as FRA-2006-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. Comments should be submitted within 72-hours from the 
time the petition is entered into and available on the DMS. Any comment 
received after that period 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 DMS in the ERD. Interested parties commenting on 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) Direct e-mail to FRA at: [email protected].
    (2) Direct fax to FRA at: 202-493-6309.
    (3) Submission of comments to the Docket Clerk, DOT Docket 
Management Facility, Room PL-401 (Plaza Level), 400 7th Street, SW., 
Washington, DC 20590 or electronically via the Internet at http://dms.dot.gov. Any comments or information sent directly to FRA will be 
immediately provided to the DOT DMS for inclusion in the ERD.
    (i) Request for hearing. 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 time the petition is entered into and available on the 
DMS. In response to a request for a public hearing, FRA will arrange a 
telephone conference between all interested parties to provide an 
opportunity for oral comment. The conference will be arranged as soon 
as practicable. After such conference, if a party stills desires a 
public hearing on the petition, then a public hearing will be arranged 
as soon as practicable pursuant to the provisions contained in 49 CFR 
part 211.
    (j) Decisions. FRA may grant a petition for waiver prior to 
conducting a public hearing if such action is in the public interest 
and consistent with safety or in situations where a hearing request is 
received subsequent to the 72-hour comment period. In such an instance, 
FRA will notify the party requesting the public hearing of its

[[Page 51522]]

decision and will arrange to conduct such hearing as soon as 
practicable.
    (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 received subsequent to 
the 72-hour comment period or at a later scheduled public hearing.
    (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) Relief granted shall not extend for more than nine months.
    (4) For matters that may significantly impact the missions of the 
Department of Homeland Security, FRA consults with the Department of 
Homeland Security as soon as practicable.

    Issued in Washington, DC on August 28, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 06-7292 Filed 8-28-06; 1:22 pm]
BILLING CODE 4910-06-P