[Federal Register Volume 72, Number 5 (Tuesday, January 9, 2007)]
[Rules and Regulations]
[Pages 910-913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-102]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 601

[Docket FTA-2006-22428]
RIN 2132-AA89


Emergency Procedures for Public Transportation Systems

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Final rule

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SUMMARY: This rulemaking establishes a new subpart in 601 of Title 49 
of the Code of Federal Regulations, to establish emergency relief 
procedures for granting relief from Federal transit policy statements, 
circulars, guidance documents, and regulations in times of national or 
regional emergencies.

DATES: Effective Date: The effective date of this rule is February 8, 
2007.

FOR FURTHER INFORMATION CONTACT: Bonnie L. Graves, Attorney-Advisor, 
Legislation and Regulations Division, Office of Chief Counsel, Federal 
Transit Administration, 400 Seventh Street, SW., Room 9316, Washington, 
DC 20590, phone: (202) 366-4011, fax: (202) 366-3809, or e-mail, 
[email protected].

SUPPLEMENTARY INFORMATION:

Availability of the Final Rule

    You may download this rule from the Department's Docket Management 
System (http://dms.dot.gov) by entering docket number 22428 in the 
search field or from the Government Printing Office's Federal Register 
Main Page at http://www.gpoaccess.gov/fr/index.html. Users may also 
download an electronic copy of this document using a modem and suitable 
communications software from the GPO Electronic Bulletin Board Service 
at (202) 512-1661.

I. Background

    On August 8, 2006, the Federal Transit Administration (FTA) 
published a notice of proposed rulemaking (NPRM) to establish an 
``Emergency Relief Docket'' for granting relief from Federal transit 
policy statements, circulars, and guidance documents, in times of 
national or regional emergency (71 FR 44957). The NPRM was in response 
to the aftermath of Hurricanes Katrina and Rita, during which FTA 
received numerous requests for relief from policy statements, 
circulars, guidance documents, and regulations, from grantees and 
subgrantees in the immediate disaster zone as well as from grantees and 
subgrantees in areas receiving evacuees.
    The NPRM comment period remained open until October 10, 2006. FTA 
received 14 comments to the docket. FTA reviewed and considered all 
comments submitted. Commenters included the City of Lincoln, NE; the 
Metro Regional Transit Authority of Akron, OH; the Portage Area 
Regional Transportation Authority (OH); Congressman Tim Ryan (OH); 
Earthquake Solutions (CA); the Akron Metropolitan Area Transportation 
Study (OH); Omnitrans (CA); the Licking County Transit Board (OH); the 
Washington Metropolitan Area Transit Authority (DC); Laketran (OH); the 
Alaska Department of Transportation; the American Public Transportation 
Association (APTA); the California Department of Transportation; and 
one individual. In addition, Senator DeWine (OH) wrote to FTA's 
Administrator, James S. Simpson, to bring to his attention the comments 
made by the Akron Metro Regional Transit Authority. FTA posted Senator 
DeWine's letter and Administrator Simpson's response in the docket.

II. Discussion of Comments

    Two commenters urged FTA not to employ emergency relief dockets. 
The commenters stated that relief from administrative requirements can 
be granted with or without a formal request and with or without public 
consultation. Several commenters stated a concern that requiring 
grantees and subgrantees to request relief through emergency relief 
dockets would slow response to emergencies. Others stated they should 
be permitted to use their federally-funded equipment in times of 
emergency and notify FTA of the issue as soon as possible but not later 
than 30 days after the event.
    In response, we agree with commenters that grantees and subgrantees 
should have maximum flexibility to assist local responders during an 
emergency. We want to emphasize that an Emergency Relief Docket will 
most likely be utilized in the aftermath of an emergency that has 
regional or national implications. There is no question that a toxic 
chemical spill, a levee break, or other imminent life-threatening 
situation requiring immediate evacuation of a local area requires fast 
action by first responders, including local transit agencies. In cases 
such as these, the grantee or subgrantee would not request relief 
through the emergency relief docket; it would simply work with local 
authorities to evacuate people as quickly as possible, consistent with 
local emergency plans. However, if a toxic chemical spill or a major 
flood or other event required ongoing relief efforts over several days 
or weeks, or the emergency impacted a large geographical area, one or 
more grantees and subgrantees might need to request relief from 
policies, circulars, guidance or regulations, and in such cases the 
Emergency Relief Docket would be used.
    Three commenters asked how they would notify FTA of the need for 
relief if there was no electricity or phone service. The NPRM 
contemplated the inability to access the electronic docket by providing 
that grantees and subgrantees could contact any FTA regional office, 
and ask the regional office to submit their request for relief to the 
docket. While acknowledging that in extreme situations it may be 
several days before a grantee or subgrantee could contact FTA to 
request relief from administrative requirements, we believe the option 
of contacting any regional office or FTA headquarters by telephone or 
mail, is sufficient if the electricity is not working. And again, FTA 
notes the purpose of the Emergency Relief Docket is to provide relief 
in the aftermath of regional or national emergencies, not during 
imminent life-threatening situations.
    In the NPRM, FTA proposed that the emergency relief procedures 
would be triggered by a Presidential declaration of national or 
regional emergency. We sought comment on whether the proposed emergency 
procedures should also be triggered by a State Governor's declaration 
of emergency. Eight commenters supported the trigger of relief 
procedures for emergency declarations made by Governors, and one 
commenter expressed that a Mayoral declaration of emergency in the 
District of Columbia should trigger the relief procedures, as the Mayor 
is the highest ranking public official in the jurisdiction. Two 
commenters stated that an appropriate trigger for relief

[[Page 911]]

would be a local declaration of emergency.
    In response, FTA believes that a declaration of emergency by a 
State Governor or the Mayor of the District of Columbia should trigger 
emergency relief procedures, in addition to a federal declaration of 
emergency by the President, and we have included this in the final 
rule. We decline to extend the relief procedures to local declarations 
of emergency, as the frequency of such events would be unmanageable by 
FTA. Grantees and subgrantees experiencing local emergencies should 
work with their FTA regional office if they need relief from 
administrative requirements in the aftermath of such emergencies.
    In the NPRM, FTA requested comments on whether we should 
proactively extend relief from certain policies, circulars, guidance 
documents and regulations to the geographical area(s) most impacted by 
an emergency, rather than waiting for grantees and subgrantees to 
request relief. Eight commenters were supportive of this idea. Two 
commenters suggested that FTA create ``menus of relief'' most likely 
needed in disaster situations, and grant the entire menu of relief sua 
sponte where the need is obvious. One commenter also expressed that FTA 
should clearly identify those issues for which relief is not expected 
to be granted; for example, civil rights and non-discrimination.
    In response to the support for proactive relief, we are including 
two additional elements in this final rule. First, FTA will establish, 
by January 31 of each year, an Emergency Relief Docket for that 
calendar year. We will publish a notice in the Federal Register 
indicating the establishment of the Emergency Relief Docket and the 
docket number. Second, FTA may, at the discretion of the Administrator, 
proactively grant relief from certain administrative requirements upon 
a State or Federal declaration of emergency, or in anticipation of such 
declaration. If FTA makes the decision to proactively grant relief, we 
will post this information in the Emergency Relief Docket.
    As for the ``menus of relief'' suggested by two commenters, FTA 
will consider this idea further outside of the rulemaking process. Any 
such ``menus of relief'' would be likely to change over time and with 
different types of emergencies, so flexibility is required. FTA agrees 
that civil rights and non-discrimination protections, such as Title VI, 
the Americans with Disabilities Act, and Environmental Justice, all of 
which ensure access to mobility for transit-dependent populations, 
require special consideration. We note that we do not have authority to 
waive statutory provisions, only regulatory provisions. FTA will work 
closely with grantees and subgrantees, the U.S. DOT, and others, as 
appropriate, if there is a request for relief from administrative 
requirements relating to civil rights and non-discrimination 
provisions.
    In the NPRM, FTA proposed that requests for relief would be 
conditionally granted for three business days, and sought comment on 
whether three business days was a sufficient amount of time to provide 
comments on petitions for relief. Two commenters stated that relief 
from administrative requirements does not constitute a binding 
obligation that would require a public comment period of any length. 
One commenter felt that three days would allow the transit agency to 
address immediate needs, but expressed concern that continuing relief 
efforts should not be delayed while waiting for final approval. Others 
expressed concern that the three business day conditional approval may 
not be sufficient, and that limiting the conditional approval to three 
days created uncertainty. One commenter suggested a provision be added 
to the rule that would allow the transit agency to continue its efforts 
until FTA has made a decision.
    In response, while public consultation on relief from 
administrative procedures may not be required, FTA believes it is in 
the interest of the public to have a process that is open and 
transparent. FTA is confident that it can and will respond to requests 
for relief within three business days; however, to address commenters' 
concerns, a provision has been added to the final rule, stating that if 
FTA fails to post a response to the request for relief to the docket 
within three business days, the grantee or subgrantee may assume its 
petition is granted until and unless FTA states otherwise. This allows 
the grantee or subgrantee to continue its efforts until FTA has made a 
final decision. In all cases, FTA shall post a response to the docket, 
so there is no uncertainty as to FTA's decision on the request for 
relief.
    FTA proposed that any member of the public could request a hearing 
on any petition, and that FTA could reopen any docket and reconsider 
any decision made. Two commenters stated that there should be no 
provision for public hearings, and suggested that FTA should not 
``second-guess'' decisions made. One commenter stated that the only 
review process should be an appeal of a denied request for relief. One 
commenter suggested that if a docket is reopened, FTA should notify the 
grantee or subgrantee that submitted the request for relief. Finally, 
one commenter stated that a grantee's or subgrantee's judgment and 
actions in times of emergency should be considered reasonable unless 
proven otherwise.
    In response, we have removed the public hearing provision. FTA may, 
however, in its discretion, contact the grantee or subgrantee that 
submitted the request for relief, or any party that submits comments to 
the docket, to obtain more information prior to making a decision. FTA 
has retained the provision that allows us to reconsider any decision 
made. We have added language to this section stating that one reason 
for reconsidering our decision would be at the request of a grantee or 
subgrantee upon denial of a request for relief. In addition, we have 
added language stating that we will notify a grantee or subgrantee if 
we are going to reconsider a decision.
    FTA proposed that a petition for relief must contain certain 
information, including the policy statement, circular, guidance 
document and/or rule from which the grantee or subgrantee seeks relief. 
One commenter stated that petitions for relief should not follow any 
prescribed format. The commenter stated that it would be unduly 
burdensome to identify specific regulatory and guidance provisions 
during or in immediate anticipation of an emergency. In response, FTA 
notes the ``required information'' provision for a request for relief 
requires grantees and subgrantees to submit only the minimum 
information necessary to assist FTA in making a decision. Further, we 
note that in order to request relief from a specific administrative 
requirement, the grantee or subgrantee should know the requirement from 
which they are requesting relief. A description of the requirement such 
that an FTA employee would be able to accurately determine the 
requested relief would be sufficient; it is preferred, but not 
required, that a grantee or subgrantee also include the circular number 
and/or regulatory citation.
    In the NPRM, FTA requested comments on private sector involvement 
in emergency relief, and whether the procedures contained in the NPRM 
would provide the necessary relief while also allowing the private 
sector to participate in transit relief efforts. A number of commenters 
provided input on this issue. Two commenters stated that charter 
regulations should not be elevated to a higher importance than other 
regulatory provisions. Some commenters objected to the proposed 
requirement that grantees and subgrantees would have to

[[Page 912]]

call not only their local charter companies, but also notify the 
charter associations of their intent to provide service that might be 
considered charter service. Some felt this would create significant 
delay in responding to evacuation needs. One commenter pointed out that 
any interested transportation provider could contact the local 
Emergency Management Agency in advance to notify them of their 
availability to respond.
    In response, FTA has removed the provision requiring grantees and 
subgrantees to make good faith efforts to contact private charter or 
school bus operators to determine whether those entities are willing to 
provide the service. FTA notes that a current charter rulemaking is 
underway that would exempt emergency services from the charter 
provisions. Members of the public interested in that rulemaking may 
wish to review the docket by going to http://dms.dot.gov and entering 
docket number 22657.
    In the NPRM, FTA stated that we do not have the independent 
authority to grant relief from U.S. DOT regulations, such as the 
Americans with Disabilities Act (49 CFR Part 37) or the Common Grant 
Rule (49 CFR Part 18). We proposed that if a grantee or subgrantee 
needed relief from a U.S. DOT regulation, the grantee or subgrantee 
would submit a request for relief to FTA's Emergency Relief Docket in 
the same manner it would request relief from FTA regulations. FTA would 
then work with DOT to process the petition for relief, including a 
request for a hearing, if any. Two commenters recommended that waivers 
of U.S. DOT regulations should be incorporated into FTA's emergency 
procedures through delegation of waiver authority to FTA.
    In response, we note that the Secretary of Transportation has not 
delegated waiver authority of U.S. DOT regulations to FTA. FTA, 
however, works very closely in consultation with U.S. DOT in emergency 
situations; the consultation process will be invisible to grantees or 
subgrantees requesting relief and will not delay FTA's response to a 
request for relief.
    Finally, two commenters asserted that the NPRM appeared to be in 
conflict with Executive Order 13132, Federalism, specifically citing 
section 3(c) which states, ``[w]ith respect to Federal statutes and 
regulations administered by the States, the national government shall 
grant the States the maximum administrative discretion possible. 
Intrusive Federal oversight of State administration is neither 
necessary nor desirable.'' The commenters also cited section 5(b) which 
states, ``[a]gencies shall not submit to the Congress legislation that 
would: (b) attach to Federal grants conditions that are not reasonably 
related to the purpose of the grant[.]''
    In response, FTA notes that the purpose of the rulemaking is to 
grant relief from FTA administrative requirements. The emergency relief 
docket will not change any regulatory requirements, therefore it 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. 
We also note that this rulemaking is not legislation submitted to 
Congress; it is a rulemaking. Further, the rulemaking does not attach 
conditions to the grants that are not reasonably related to the purpose 
of the grant.

III. Rulemaking Analysis And Notices

Executive Order 12866

    This final rule is nonsignificant for purposes of Executive Order 
12866 and the Department of Transportation's Regulatory Policies and 
Practices. The final rule will establish emergency procedures and 
requests for relief from Federal transit regulations.

Federalism Assessment

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). FTA 
believes this rule will not impose any requirements that would have 
substantial direct effects on the States, the relationship between the 
national government and the States, or the distribution of power and 
responsibilities among the various levels of government.

Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not have tribal implications and does not impose direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 do not apply.

Regulatory Flexibility Act and Executive Order 13272

    Section 603 of the Regulatory Flexibility Act (RFA) requires an 
agency to prepare an initial regulatory flexibility analysis describing 
impacts on small entities whenever an agency is required by 5 U.S.C. 
553 to publish a general notice of proposed rulemaking for any proposed 
rule. Section 605 of the RFA allows an agency to certify a rule, in 
lieu of preparing an analysis, if the rulemaking is not expected to 
have a significant economic impact on a substantial number of small 
entities. FTA has determined that the impact on entities affected by 
this rule will not be significant. The effect of this rule is to 
relieve entities of administrative requirements in times of regional or 
national emergency. Accordingly, the Administrator of FTA hereby 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $128.1 
million or more, in the aggregate, to any of the following: State, 
local, or Native American tribal governments, or the private sector.

Paperwork Reduction Act

    There are no new information collection requirements in this final 
rule.

Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document may be used to cross-reference this action with the 
Unified Agenda.

Privacy Act

    Anyone is able to search the electronic form for all comments 
received into any of our dockets by the name of the individual 
submitting the comments (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.

List of Subjects in 49 CFR Part 601

    Administrative practice and procedures; Organization, functions and 
procedures.

0
For the reasons set forth in the preamble, amend part 601 of title 49 
of the Code of Regulations as follows:

PART 601--[AMENDED]

0
Add subpart D, consisting of Sec. Sec.  601.40 through 601.47, to read 
as follows:

[[Page 913]]

Subpart D--Emergency Procedures for Public Transportation Systems
Sec.
601.40 Applicability.
601.41 Petitions for relief.
601.42 Emergency relief docket.
601.43 Opening the docket.
601.44 Posting to the docket.
601.45 Required information.
601.46 Processing of petitions.
601.47 Review procedures.

    Authority: 49 U.S.C. 5141 and 5334; 49 CFR 1.51.

Subpart D--Emergency Procedures for Public Transportation Systems


Sec.  601.40  Applicability.

    This part prescribes procedures that apply to FTA grantees and 
subgrantees when the President has declared a national or regional 
emergency, when a State Governor has declared a state of emergency, 
when the Mayor of the District of Columbia has declared a state of 
emergency, or in anticipation of such declarations.


Sec.  601.41  Petitions for relief.

    In the case of a national or regional emergency or disaster, or in 
anticipation of such a disaster, any FTA grantee or subgrantee may 
petition the Administrator for temporary relief from the provisions of 
any policy statement, circular, guidance document or rule.


Sec.  601.42  Emergency relief docket.

    (a) By January 31st of each year, FTA shall establish an Emergency 
Relief Docket in the publicly accessible DOT Docket Management System 
(DMS) (http://dms.dot.gov).
    (b) FTA shall publish a notice in the Federal Register identifying, 
by docket number, the Emergency Relief Docket for that calendar year. A 
notice shall also be published in the previous year's Emergency Relief 
Docket identifying the new docket number.
    (c) If the Administrator, or his/her designee, determines that an 
emergency event has occurred, or in anticipation of such an event, FTA 
shall place a message on its web page (http://www.fta.dot.gov) 
indicating the Emergency Relief Docket has been opened and including 
the docket number.


Sec.  601.43  Opening the docket.

    (a) The Emergency Relief Docket shall be opened within two business 
days of an emergency or disaster declaration in which it appears FTA 
grantees or subgrantees are or will be impacted.
    (b) In cases in which emergencies can be anticipated, such as 
hurricanes, FTA shall open the docket and place the message on the FTA 
web page in advance of the event.
    (c) In the event a grantee or subgrantee believes the Emergency 
Relief Docket should be opened and it has not been opened, that grantee 
or subgrantee may submit a petition in duplicate to the Administrator, 
via U.S. mail, to: Federal Transit Administration, 400 Seventh Street, 
SW., Washington, DC 20590; via telephone, at: (202) 366-4043; or via 
fax, at (202) 366-3472, requesting opening of the Docket for that 
emergency and including the information in Sec.  601.45. The 
Administrator in his/her sole discretion shall determine the need for 
opening the Emergency Relief Docket.


Sec.  601.44  Posting to the docket.

    (a) All petitions for relief must be posted in the docket in order 
to receive consideration by FTA.
    (b) The docket is publicly accessible and 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. Petitions may also be submitted by U.S. 
mail or by hand delivery to the DOT Docket Management Facility, Room 
PL-401 (Plaza Level), 400 7th Street, SW, Washington, DC 20590.
    (c) In the event a grantee or subgrantee needs to request immediate 
relief and does not have access to electronic means to request that 
relief, the grantee or subgrantee may contact any FTA regional office 
or FTA headquarters and request that FTA staff submit the petition on 
their behalf.
    (d) Any grantee or subgrantee submitting petitions for relief or 
comments to the docket must include the agency name (Federal Transit 
Administration) and that calendar year's docket number. Grantees and 
subgrantees making submissions by mail or hand delivery should submit 
two copies.


Sec.  601.45  Required information.

    A petition for relief under this section shall:
    (a) Identify the grantee or subgrantee and its geographic location;
    (b) Specifically address how an FTA requirement in a policy 
statement, circular, or agency guidance will limit a grantee's or 
subgrantee's ability to respond to an emergency or disaster;
    (c) Identify the policy statement, circular, guidance document and/
or rule from which the grantee or subgrantee seeks relief; and
    (d) Specify if the petition for relief is one-time or ongoing, and 
if ongoing identify the time period for which the relief is requested. 
The time period may not exceed three months; however, additional time 
may be requested through a second petition for relief.


Sec.  601.46  Processing of petitions.

    (a) A petition for relief will be conditionally granted for a 
period of three (3) business days from the date it is submitted to the 
Emergency Relief Docket.
    (b) FTA will review the petition after the expiration of the three 
business days and review any comments submitted thereto. FTA may 
contact the grantee or subgrantee that submitted the request for 
relief, or any party that submits comments to the docket, to obtain 
more information prior to making a decision.
    (c) FTA shall then post a decision to the Emergency Relief Docket. 
FTA's decision will be based on whether the petition meets the criteria 
for use of these emergency procedures, the substance of the request, 
and the comments submitted regarding the petition.
    (d) If FTA fails to post a response to the request for relief to 
the docket within three business days, the grantee or subgrantee may 
assume its petition is granted until and unless FTA states otherwise.


Sec.  601.47  Review Procedures.

    (a) FTA reserves the right to reopen any docket and reconsider any 
decision made pursuant to these emergency procedures based upon its own 
initiative, based upon information or comments received subsequent to 
the three business day comment period, or at the request of a grantee 
or subgrantee upon denial of a request for relief. FTA shall notify the 
grantee or subgrantee if it plans to reconsider a decision.
    (b) FTA decision letters, either granting or denying a petition, 
shall be posted in the appropriate Emergency Relief Docket and shall 
reference the document number of the petition to which it relates.

    Issued in Washington, DC, this 4th day of January 2007.
James S. Simpson,
FTA Administrator.
 [FR Doc. E7-102 Filed 1-8-07; 8:45 am]
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