[Federal Register Volume 73, Number 247 (Tuesday, December 23, 2008)]
[Rules and Regulations]
[Pages 78657-78659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30534]



[[Page 78657]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[FRA-2008-0136]


Adjustment of Monetary Threshold for Reporting Rail Equipment 
Accidents/Incidents for Calendar Year 2009

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

ACTION: Final rule.

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SUMMARY: This rule increases the rail equipment accident/incident 
reporting threshold from $8,500 to $8,900 for certain railroad 
accidents/incidents involving property damage that occur during 
calendar year 2009. This action is needed to ensure that FRA's 
reporting requirements reflect cost increases that have occurred since 
the reporting threshold was last computed in December of 2007.

DATES: This regulation is effective January 1, 2009.

FOR FURTHER INFORMATION CONTACT: Arnel B. Rivera, Staff Director, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room 
W33-306, 1200 New Jersey Ave., SE., Washington, DC 20590 (telephone 
202-493-1331); or Gahan Christenson, Trial Attorney, U.S. Department of 
Transportation, Federal Railroad Administration, Office of Chief 
Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-204, 
1200 New Jersey Ave., SE., Washington, DC 20590 (telephone 202-493-
1381).

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 results in 
damages to railroad on-track equipment, signals, tracks, track 
structures, or roadbed, including labor costs and the costs for 
acquiring new equipment and material, 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) and (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, if necessary, every year in accordance with the procedures 
outlined in appendix B to part 225 to reflect any cost increases or 
decreases. 61 FR 30940 (June 18, 1996); 61 FR 60632 (Nov. 29, 1996); 61 
FR 67477 (Dec. 23, 1996); 62 FR 63675 (Dec. 2, 1997); 63 FR 71790 (Dec. 
30, 1998); 64 FR 69193 (Dec. 10, 1999); 65 FR 69884 (Nov. 21, 2000); 66 
FR 66346 (Dec. 26, 2001); 67 FR 79533 (Dec. 30, 2002); 70 FR 75414 
(Dec. 20, 2005); 72 FR 1184 (January 10, 2007); 72 FR 73659 (December 
28, 2007).

New Reporting Threshold

    Approximately one year has passed since the rail equipment 
accident/incident reporting threshold was revised. 72 FR 73659 
(December 28, 2007). Consequently, FRA has recalculated the threshold, 
as required by Sec.  225.19(c), based on increased costs for labor and 
increased costs for equipment. FRA has determined that the current 
reporting threshold of $8,500, which applies to rail equipment 
accidents/incidents that occur during calendar year 2008, should 
increase by $400 to $8,900 for equipment accidents/incidents occurring 
during calendar year 2009, effective January 1, 2009. The specific 
inputs to the equation set forth in appendix B (i.e., Tnew = Tprior * 
[1 + 0.4(Wnew - Wprior)/Wprior + 0.6(Enew--Eprior)/100]) to part 225 
are:

----------------------------------------------------------------------------------------------------------------
                   Tprior                           Wnew            Wprior            Enew            Eprior
----------------------------------------------------------------------------------------------------------------
$8,500......................................       $22.86094        $21.50323        180.16667        175.56667
----------------------------------------------------------------------------------------------------------------

    Where: Tnew = New threshold; Tprior = Prior threshold (with 
reference to the threshold, ``prior'' refers to the previous threshold 
rounded to the nearest $100, as reported in the Federal Register); Wnew 
= New average hourly wage rate, in dollars; Wprior = Prior average 
hourly wage rate, in dollars; Enew = New equipment average PPI value; 
Eprior = Prior equipment average PPI value. Using the above figures, 
the calculated new threshold, (Tnew) is $8,949.28, which is rounded to 
the nearest $100 for a final new reporting threshold of $8,900.

Notice and Comment Procedures and Effective Date

    In this rule, FRA has recalculated the monetary reporting threshold 
based on the formula discussed in detail and adopted, after notice and 
comment, in the final rule published December 20, 2005, 70 FR 75414. 
FRA has found that both the current cost data inserted into this pre-
existing formula and the original cost data that they replace were 
obtained from reliable Federal government sources. FRA has found that 
this rule imposes no additional burden on any person, but rather 
provides a benefit by permitting the valid comparison of accident data 
over time. Accordingly, finding that notice and comment procedures are 
either impracticable, unnecessary, or contrary to the public interest, 
FRA is proceeding directly to the final rule.
    FRA regularly recalculates the monetary reporting threshold using a 
pre-existing formula near the end of each calendar year. Therefore, any 
person affected by this rule anticipates the on-going adjustment of the 
threshold and has reasonable time to make any minor changes necessary 
to come into compliance with the regulations. FRA attempts to use the 
most recent data available to calculate the updated reporting threshold 
prior to the next calendar year. FRA has found that issuing the rule in 
December of each calendar year and making the rule effective on January 
1, of the next year, allows FRA to use the most up-to-date data when 
calculating the reporting threshold and to compile data that accurately 
reflects rising wages and equipment costs. As such, FRA has found that 
it has good cause to make the effective date January 1, 2009.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies 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)).

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) 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

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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.
    About 681 of the approximately 719 railroads in the United States 
are considered small entities by FRA. FRA certifies that this final 
rule will have no significant economic impact on a substantial number 
of small entities. To the extent that this rule has any 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, 
current FRA data indicate that 3,379 rail equipment accidents/incidents 
were reported in 2004, with small railroads reporting 307 of them. In 
2005, 3,261 rail equipment accidents/incidents were reported, and small 
railroads reported 321 of them. Data for 2006 show that 2,967 rail 
equipment accidents/incidents were reported, with small railroads 
reporting 351 of them. Data for 2007 show that 2,636 rail equipment 
accidents/incidents were reported, with small railroads reporting 322 
of them. On average for those four calendar years, small railroads 
reported about 11% (ranging from 9% to 12%) of the total number of rail 
equipment accidents/incidents. FRA notes that these data are accurate 
as of the date of issuance of this final rule, and are subject to minor 
changes due to additional reporting. Absent this rulemaking (i.e., any 
increase in the monetary reporting threshold), the number of reportable 
accidents/incidents would increase, as keeping the 2008 threshold in 
place would not allow it to keep pace with the increasing dollar 
amounts of wages and rail equipment repair costs. Therefore, this rule 
will be neutral in effect. Increasing the reporting threshold will 
slightly decrease the recordkeeping burden for railroads over time. Any 
recordkeeping burden will not be significant and will affect the large 
railroads more than the small entities, due to the higher proportion of 
reportable rail equipment accidents/incidents experienced by large 
entities.

Paperwork Reduction Act

    There are no new information collection requirements associated 
with this 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. 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 this 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 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 [$141,100,000 or more (as 
adjusted for inflation)] in any one 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 final rule will not result in the expenditure, in the aggregate, of 
$141,100,000 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) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this final rule in accordance with Executive 
Order 13211. FRA has determined that this final rule is not

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likely to 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

    Anyone is able to search the electronic form of all our comments 
received into any of our dockets 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 in 49 CFR Part 225

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

The Rule

0
In consideration of the foregoing, FRA amends part 225 of chapter II, 
subtitle B of title 49, Code of Federal Regulations, as follows:

PART 225--[AMENDED]

0
1. The authority citation for part 225 continues to read as follows:

    Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 
21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.


0
2. Amend Sec.  225.19 by revising the first sentence 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., $6,700 for calendar years 2002 through 2005, $7,700 
for calendar year 2006, $8,200 for calendar year 2007, $8,500 for 
calendar year 2008 and $8,900 for calendar year 2009) to railroad on-
track equipment, signals, tracks, track structures, or roadbed, 
including labor costs and the costs for acquiring new equipment and 
material. * * *
* * * * *
    (e) The reporting threshold is $6,700 for calendar years 2002 
through 2005, $7,700 for calendar year 2006, $8,200 for calendar year 
2007, $8,500 for calendar year 2008 and $8,900 for calendar year 2009. 
The procedure for determining the reporting threshold for calendar 
years 2006 and beyond appears as paragraphs 1-8 of appendix B to part 
225.
* * * * *

    Issued in Washington, DC, on December 17, 2008.
Clifford C. Eby,
Acting Administrator.
[FR Doc. E8-30534 Filed 12-22-08; 8:45 am]
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