[Federal Register Volume 76, Number 164 (Wednesday, August 24, 2011)]
[Proposed Rules]
[Pages 52918-52929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21454]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 236
[Docket No. FRA-2011-0028, Notice No. 1]
RIN 2130-AC27
Positive Train Control Systems
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: FRA proposes amendments to the regulations implementing a
provision of the Rail Safety Improvement Act of 2008 that requires
certain passenger and freight railroads to install positive train
control (PTC) systems. This notice proposes the removal of various
regulatory requirements that require railroads to either conduct
further analyses or meet certain risk-based criteria in order to avoid
PTC system implementation on track segments that do not transport
poison- or toxic-by-inhalation (PIH) hazardous materials traffic and
are not used for intercity or commuter rail passenger transportation as
of December 31, 2015.
DATES: (1) Written comments must be received by October 24, 2011.
Comments received after that date will be considered to the extent
possible without incurring additional expenses or delays.
(2) FRA anticipates being able to resolve this rulemaking without a
public, oral hearing. However, if FRA receives a specific request for a
public, oral hearing prior to September 23, 2011, one will be
scheduled, and FRA will publish a supplemental notice in the Federal
Register to inform interested parties of the date, time, and location
of any such hearing.
ADDRESSES:
Comments: Comments related to Docket No. FRA-2011-0028, may be
submitted by any of the following methods:
Web Site: Comments should be filed at the Federal
eRulemaking Portal, http://www.regulations.gov. Follow the online
instructions for submitting comments.
Fax: 202-493-2251.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC
20590.
Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information. Please see the Privacy Act heading in the SUPPLEMENTARY
INFORMATION section of this document for Privacy Act information
related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
Room W12-140 on the Ground level of the West Building, 1200 New Jersey
Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. Monday through
Friday, except Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Thomas McFarlin, Office of Safety
Assurance and Compliance, Staff Director, Signal & Train Control
Division, Federal Railroad Administration, Mail Stop 25, West Building
3rd Floor West, Room W35-332, 1200 New Jersey Avenue, SE., Washington,
DC 20590 (telephone: 202-493-6203); or Jason Schlosberg, Trial
Attorney, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building
3rd Floor, Room W31-207, 1200 New Jersey Avenue, SE., Washington, DC
20590 (telephone: 202-493-6032).
SUPPLEMENTARY INFORMATION: FRA is issuing this proposed rule to amend
the regulatory requirements contained in 49 CFR part 236, subpart I,
related to a railroad's ability to remove track segments from the
necessity of implementing PTC as mandated by Section 104 of the
Railroad Safety Improvement Act of 2008, Public Law 110-432, 122 Stat.
4854 (Oct. 16, 2008) (codified at 49 U.S.C. 20157) (hereinafter
``RSIA'') based on the track segments not carrying PIH traffic as of
December 31, 2015.
Table of Contents for Supplementary Information
I. Executive Summary
II. Background
A. Regulatory History
B. Litigation, Executive Order 13563, and Congressional Hearings
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
B. Regulatory Flexibility Act and Executive Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. Environmental Impact
F. Unfunded Mandates Reform Act of 1995
G. Energy Impact
H. Privacy Act
I. Executive Summary
For years, FRA has supported the nationwide proliferation and
implementation of positive train control (PTC) systems, forecasting
substantial benefits of advanced train control technology in supporting
a variety of business and safety purposes. However, FRA repetitively
noted that an immediate regulatory mandate for PTC system
implementation could not be justified based upon normal cost-benefit
principals relying on direct safety
[[Page 52919]]
benefits. In 2005, FRA promulgated regulations providing for the
voluntary implementation of processor-based train control systems. See
70 FR 11,052 (Mar. 7, 2005) (codified at 49 CFR part 236, subpart H).
As a consequence of the number and severity of certain very public
accidents, coupled with a series of other less publicized accidents,
Congress passed RSIA mandating the implementation of PTC systems on
lines meeting certain thresholds. RSIA requires PTC system
implementation on all Class I railroad lines that carry PIH materials
and 5 million gross tons or more of annual traffic, and on any
railroad's main line tracks over which intercity or commuter rail
passenger train service is regularly provided. In addition, RSIA
provided FRA with the authority to require PTC system implementation on
any other line.
In accordance with its statutory authority, FRA's subsequent final
rule, issued January 15, 2010, and amended on September 27, 2010,
potentially required PTC system implementation on certain track
segments that carried PIH traffic and 5 million gross tons or more of
annual traffic in 2008 but that will not carry PIH traffic, and will
not be used for intercity or commuter rail passenger transportation, as
of December 31, 2015. Per the regulation, the determination would be
based upon whether the subject track segment would pass what has been
called the alternative route analysis and the residual risk analysis
(the ``two qualifying tests'').
Upon issuance of the PTC final rule, the Association of American
Railroads (AAR) filed suit in the U.S. Court of Appeals for the
District of Columbia Circuit challenging the two qualifying tests
provisions of the final rule. After the parties filed their briefs,
they executed a settlement agreement (Settlement Agreement). In the
Settlement Agreement, FRA agreed to issue a notice of proposed
rulemaking (NPRM) proposing to amend the PTC rule to eliminate the two
qualifying tests; this NPRM fulfills this requirement. The Settlement
Agreement further provided that FRA would consider public comments on
the NPRM in determining whether to amend the PTC rule.
For the first 20 years of the proposed rule, the estimated
quantified benefits to the industry due to the proposed regulatory
relief total approximately $620 million discounted at 7 percent and
$818 million discounted at 3 percent. Substantial cost savings would
accrue largely from not installing PTC system wayside components along
approximately 10,000 miles of track. Although these rail lines would
forego some risk reduction, the reductions would likely be small since
these lines pose a much lower risk of accidents because they generally
do not carry passenger trains or PIH materials and generally have lower
accident exposure. The analysis shows that if the assumptions are
correct, the savings of the proposed action far outweigh the cost. The
following table presents the quantified benefits:
Benefits
[20-year, discounted]
------------------------------------------------------------------------
Costs avoided 7% Discount 3% Discount
------------------------------------------------------------------------
Reduced Mitigation Costs, $91,793,822 $121,119,324
Including Maintenance............
Reduced Wayside Costs, Including 515,695,631 680,445,643
Maintenance......................
Reduced Locomotive Costs, 12,479,834 16,466,785
Including Maintenance............
-------------------------------------
Total Benefits................ 619,969,287 818,031,752
------------------------------------------------------------------------
For the same 20-year period, the estimated quantified cost totals
$26.7 million discounted at 7 percent and $39.3 million discounted at 3
percent. The costs associated with the proposed regulatory relief
result from the reduction of safety benefits in the form of accident
reduction due to the affected track segments not being equipped with a
PTC system. A substantial part of the accident reduction that FRA
expects from PTC systems currently required comes from reducing high-
consequence accidents involving passenger trains or the release of PIH
materials. FRA believes that the lines impacted by this proposal pose
significantly less risk because they generally do not carry passenger
trains or PIH materials and generally have lower accident exposure. The
following tables present the total costs of the proposed rule as well
as the breakdown of the costs by element:
Costs
[20-year, discounted]
------------------------------------------------------------------------
Foregone reductions in 7% Discount 3% Discount
------------------------------------------------------------------------
Fatality Prevention............... $11,453,106 $16,860,327
Injury Prevention................. 4,254,484 6,263,104
Train Delay....................... 117,793 173,406
Property Damage................... 10,163,835 14,962,367
Equipment Cleanup................. 143,273 210,915
Environmental Cleanup............. 430,995 634,475
Evacuations....................... 138,780 204,301
-------------------------------------
Total Costs................... 26,702,267 39,308,896
------------------------------------------------------------------------
FRA has also performed a sensitivity analysis for a high case
(14,000 miles), expected case (10,000 miles), and low case (7,000
miles).
The net amounts for each case, subtracting the costs from the
benefits, provide the following results:
[[Page 52920]]
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Net societal benefits 7% Discount 3% Discount
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Expected Case (10,000 miles)...... $593,267,020 $778,722,856
High Case (14,000 miles).......... 793,856,299 1,041,764,269
Low Case (7,000 miles)............ 442,825,061 581,441,797
------------------------------------------------------------------------
Further, the benefit-cost ratios under the scenarios analyzed range
between 20:1 and 25:1.
------------------------------------------------------------------------
7% 3%
Benefit-cost ratio Discount Discount
------------------------------------------------------------------------
Expected Case..................................... 23.22 20.81
High Case......................................... 22.24 19.93
Low Case.......................................... 24.69 22.13
------------------------------------------------------------------------
II. Background
A. Regulatory History
As a consequence of the number and severity of certain widely
publicized accidents, coupled with a series of other accidents
receiving less media attention, Congress passed RSIA, mandating
implementation of PTC systems by December 31, 2015. 75 FR 2598 (Jan.
15, 2010). Under RSIA, such PTC implementation must be completed by
each Class I railroad carrier and each entity providing regularly
scheduled intercity or commuter rail passenger transportation on:
(A) Its main line over which intercity rail passenger
transportation or commuter rail passenger transportation, as defined in
section 24102, is regularly provided;
(B) its main line over which PIH or TIH hazardous materials, as
defined in parts 171.8, 173.115, and 173.132 of title 49, Code of
Federal Regulations, are transported; and
(C) such other tracks as the Secretary may prescribe by regulation
or order.
49 U.S.C. 20157(a)(1). The statute further defined ``main line'' to
mean:
A segment or route of railroad tracks over which 5,000,000 or more
gross tons of railroad traffic is transported annually, except that--
(A) The Secretary may, through regulations under subsection (g),
designate additional tracks as main line as appropriate for this
section; and
(B) for intercity rail passenger transportation or commuter rail
passenger transportation routes or segments over which limited or no
freight railroad operations occur, the Secretary shall define the term
``main line'' by regulation.
49 U.S.C. 20157(i)(2). To effectuate this goal, RSIA required the
railroads to submit for FRA approval a PTC Implementation Plan (PTCIP)
within 18 months (i.e., by April 16, 2010).
Consistent with this statutory mandate, FRA published a final rule
with a request for further comments on January 15, 2010, which
established new regulations codified primarily in subpart I to 49 CFR
part 236 (the ``PTC rule''). Subsequently, FRA received a number of
petitions for reconsideration to the final rule and a number of
comments responding to the request for further comments. In a letter
dated July 8, 2010, FRA denied all of the petitions for
reconsideration. On September 27, 2010, FRA issued a new final rule
with clarifying amendments to the PTC rule.
Under the current regulations applicable to the existing railroads,
each PTCIP must have included the sequence and schedule in which track
segments required to be equipped with PTC will be so equipped and the
basis for those decisions. See 49 CFR 236.1011. This list of track
segments must have included all track segments that fit the statutory
criteria in calendar year 2008. See 49 CFR 236.1005(b)(1) and (b)(2).
While the statutory PTC implementation deadline is December 31,
2015, FRA recognized a need for a starting point in time to determine
where such implementation must occur. The final rule indicates that
such a starting baseline should be based on the facts and data known in
calendar year (CY) 2008 (the ``2008 baseline''). FRA determined that
using CY 2009 data would have been difficult given the proximity to the
PTCIP submission deadline and the notably atypical traffic levels
caused by the down turn in the economy. Although each railroad's
initial PTCIP includes a future PTC implementation route map reflecting
2008 data, FRA recognized that traffic levels and PIH routings could
change in the period between the end of 2008 and the start of 2016.
Accordingly, in the event of changed circumstances, the PTC rule
provides railroads with the option to file a request for amendment
(RFA) of its PTCIP to not equip a track segment that the railroad was
initially, but may no longer be, required to implement a PTC system. If
a particular track segment included in a PTCIP will no longer carry PIH
traffic by the statutory implementation deadline, and its PTC system
implementation is scheduled, but not yet effectuated, then the host
railroad might avoid actual PTC system implementation by filing a
supported RFA for FRA approval. Each such RFA must be supported with
the data defined under Sec. 236.1005(b)(2) and (b)(4)(i), and satisfy
the two qualifying tests that were promulgated under FRA's statutory
authority to require PTC to be installed on lines in addition to those
required to be equipped by RSIA. If a track segment fails either of
these tests, FRA would deny the request, thus requiring PTC system
implementation on the track segment.
The first test, proverbially known as the ``alternative route
analysis test,'' was initially codified at Sec. 236.1005(b)(4)(i)(A)
and subsequently moved to a new Sec. 236.1020. Under this test, the
railroad must establish that current or prospective rerouting of PIH
materials traffic to one or more alternative track segments is
justified. If a railroad reroutes all PIH materials off of a track
segment requiring PTC system implementation under the 2008 baseline,
and onto a new line, PTC system implementation on the initial line may
not be required if the new line would have substantially the same
overall safety and security risk as the initial line, assuming PTC
implementation on both lines. If the initial track segment, despite the
elimination of all PIH materials traffic, is determined to pose higher
overall safety and security risks under this analysis, then a PTC
system must still be installed on that initial track segment. PTC
system implementation may also be required on the new line if it meets
the 5 million gross ton of annual traffic threshold and does not
qualify under the de minimis exception of the rule.
The second test that the railroad must satisfy in order to avoid
having to install a PTC system on a track segment requiring
implementation under the 2008 baseline is the so-called ``residual risk
test.'' Under this test, the railroad must show that, without a PTC
system, the remaining risk on the track segment--pertaining to events
that can be prevented or mitigated in severity by a PTC system--is less
than the national average equivalent risk per route mile on track
segments required to be equipped with PTC systems due to statutory
reasons other than passenger traffic presence. When FRA issued its PTC
rule amendments on September 27, 2010, FRA indicated that it was
[[Page 52921]]
delaying the effective date of 49 CFR 236.1005(b)(4)(i)(A)(2)(iii), as
revised under Sec. 236.1020, pending the completion of a separate
rulemaking to establish how residual risk is to be determined.
B. Litigation, Executive Order 13563, and Congressional Hearings
After FRA issued its PTC final rule on January 15, 2010, and denied
reconsideration on July 8, 2010, the AAR filed a petition for review of
the rule with the U.S. Court of Appeals for the District of Columbia.
Once FRA issued its PTC final rule amendments, AAR filed another
petition for review of those amendments on October 5, 2010. The court
consolidated those two petitions on October 22, 2010 (collectively,
``Petition for Review'').
In its brief, AAR challenged FRA's determination to use 2008 as the
baseline year, arguing that it rests on a fundamental legal error and
was arbitrary and capricious. After the parties fully briefed the
issues, President Obama issued Executive Order 13563 on January 18,
2011 (76 FR 3821 (Jan. 21, 2011)), which outlined a plan to improve
regulations and regulatory review. According to the Order, it is
intended to reaffirm and build upon governing principles of
contemporary regulatory review, including Executive Order 12866 (Sept.
30, 1993), by requiring federal agencies when issuing safety
regulations to design the regulations so that they are cost-effective,
evidence-based, and compatible with economic growth, job creation, and
competitiveness. The President's plan recognizes that these principles
apply to both new and existing regulations. To that end, Executive
Order 13563 requires agencies to review existing significant
regulations to determine if they are outmoded, ineffective,
insufficient, or excessively burdensome. FRA recognizes that the costs
associated with PTC rule compliance outweigh the safety benefits by 20-
to-1 and, therefore, it is appropriate to reexamine whether FRA should
be requiring the installation of PTC on lines that will not be carrying
PIH traffic or regularly scheduled passenger service as of December 31,
2015.
FRA and AAR entered into the Settlement Agreement on March 2, 2011.
The terms and conditions of the Settlement Agreement included the joint
filing of a motion to hold the Petition for Review in abeyance pending
the completion of this rulemaking. That motion was filed on March 2,
2011, and was granted by the court on March 3, 2011.
The Settlement Agreement provides that FRA will issue two NPRMs.
The first NPRM is to address whether the PTC rule should be amended by
eliminating the two aforementioned tests that would potentially require
PTC to be installed on track segments not specifically required to be
equipped by Congress. This NPRM meets that requirement. The Settlement
Agreement provides that upon the completion of this rulemaking
proceeding, the parties will determine whether to file a joint motion
to dismiss the lawsuit in its entirety. The Settlement Agreement also
states that FRA is to issue a separate NPRM that will address the
issues of how to handle en-route failures of PTC-equipped trains,
circumstances under which a signal system may be removed after PTC
installation, and whether yard movements and certain other train
movements should qualify for a de minimis risk exception to the PTC
rule. The second NPRM will also address any other issues that might be
raised by interested parties in a properly filed petition for
rulemaking under 49 CFR part 211. The Settlement Agreement notes that
FRA will consider all comments submitted during the rulemaking comment
periods on each of those NPRMs in determining whether to issue
amendments to the PTC rule and, if so, the contents of those
amendments. Although this NPRM and its associated regulatory impact
analysis seek comments relating to the two qualifying tests, it does
not seek comments on the issues that will be reserved for the other
forthcoming NPRM.
On March 17, 2011, FRA and AAR testified before the Subcommittee on
Railroads, Pipelines, and Hazardous Materials, Committee on
Transportation and Infrastructure, U.S. House of Representatives. In
addition to reporting on the Settlement Agreement, FRA's testimony
discussed PTC system implementation planning and progress made thus far
and highlighted the various ways that FRA has assisted the industry in
meeting the statutory and regulatory goals. In particular, FRA has
supported PTC implementation by developing and approving certain
implementation exceptions, providing technical assistance, and granting
financial assistance.
During its testimony, made jointly with Norfolk Southern Railway
(NS), AAR asserted that, ``If unchanged, the 2008 base-year provision
means railroads would have to spend more than $500 million in the next
few years to deploy PTC on more than 10,000 miles of rail lines on
which neither passenger nor TIH materials will be moving in 2015.'' \1\
FRA understands AAR to assume that these 10,000 miles would still
require PTC implementation because they would not be able to pass the
alternative route analysis and residual risk analysis tests. If this is
not correct, FRA seeks AAR's clarification. However, upon its own
analysis, FRA assumes that 50 percent of the 10,000 miles would be able
to pass both tests with the implementation of mitigation measures. FRA
seeks comment on this assumption.
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\1\ Hearing Before the Subcommittee on Railroads, Pipelines, and
Hazardous Materials of the Transportation and Infrastructure
Committee, U.S. House of Representatives, 112th Cong. (2011) (Joint
statement of Edward R. Hamberger, President and Chief Executive
Officer of the AAR, and Mark D. Manion, Executive Vice President and
Chief Operating Officer of the Norfolk Southern Railway, on behalf
of the AAR's member railroads) [hereinafter AAR Congressional
Testimony].
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Under the regulatory impact analysis (RIA) that accompanied the PTC
final rule, FRA estimated that the railroads would need to implement
PTC systems on approximately 70,000 miles of track. However, PTC system
implementation could be avoided on 3,204 miles of those 70,000 miles of
track because PIH materials traffic will have ceased by 2015 and the
subject track segments would pass the residual risk analysis and
alternative route analysis tests. During the earlier rulemakings, no
entity, including AAR and NS, challenged or otherwise commented on
these conclusions.
FRA also estimated that PTC system implementation could be avoided
on 304 miles of track because gross tonnage will fall below 5 million
gross tons per year, or passenger service would end so that neither of
the two tests above would apply. Between the two categories, FRA
estimated that railroads could exclude more than 3,500 miles. Assuming
that the 3,500 miles represents about 50% of those tracks where PIH
materials traffic will have ceased, FRA was implicitly estimating that
there would be about 7,000 miles of track where PIH materials traffic
will have ceased. The AAR and its members appear to have been more
effective in the future reduction of PIH materials traffic than FRA had
initially estimated based on AAR's congressional testimony and
subsequent submissions to FRA. In its analysis of this NPRM, FRA
estimates that PIH traffic will cease on 10,000 miles of track on which
PTC systems would have been required had the traffic not ceased. FRA
considers cases where 7,000 miles, 10,000 miles and, for sensitivity,
14,000 miles of track might be excluded from PTC requirements because
of changes in PIH traffic. As FRA was completing its
[[Page 52922]]
analysis of this proposal, AAR submitted data that indicates its member
railroads believe that they can cease PIH traffic on 11,128 miles of
track, of which 9,566 miles have no passenger traffic. Some of the
passenger traffic miles may later qualify for exclusion from the system
on which PTC is required. For more discussion of those miles from which
PIH traffic is removed, but on which passenger traffic remains, see
FRA's Regulatory Impact Assessment, in this rulemaking docket. FRA
seeks comments and information on the accuracy and likelihood of
estimated changes in PIH traffic.
III. Section-by-Section Analysis
Unless otherwise noted, all section references below refer to
sections in title 49 of the Code of Federal Regulations (CFR). FRA
seeks comments on all proposals made in this NPRM.
Proposed Amendments to 49 CFR Part 236
Section 236.1003 Definitions
FRA currently defines PIH materials within the rule text at Sec.
236.1005(b)(1)(i), which some may find difficult to locate.
Accordingly, for the purposes of clarity, FRA proposes to add the
definition for PIH materials to the definitions section of subpart I.
The inclusion of this definition in Sec. 236.1003 would not change the
meaning of the term as understood under Sec. 236.1005(b)(1)(i) or its
cross-referenced Sec. Sec. 171.8, 173.115, and 173.132.
Section 236.1005 Requirements for Positive Train Control Systems
In this NPRM, FRA is proposing the elimination of the alternative
route analysis and the residual risk analysis tests. When initially
published in the PTC rule on January 15, 2010, these provisions were
included in Sec. 236.1005(b). On September 27, 2010, FRA issued
amendments to the PTC rule, moving the text to a new Sec. 236.1020 and
providing more clarifying language. To ensure continuity and
understanding, however, Sec. 236.1005 contained various cross-
references to Sec. 236.1020. As indicated below, FRA is proposing to
eliminate Sec. 236.1020. Accordingly, FRA also proposes rule text
changes to Sec. 236.1005 by removing those cross-references.
Section 236.1020 Exclusion of Track Segments for Implementation Due to
Cessation of PIH Materials Traffic
As previously noted, the current PTC rule requires that, for each
RFA seeking to exclude a track segment from PTC system implementation
due to the cessation of PIH materials traffic, a railroad must satisfy
both an alternative route analysis, and eventually a residual risk
analysis test, in order to secure FRA's approval. FRA's cost benefit
analysis of the PTC rule indicates that the railroads will incur
approximately $20 in PTC costs for each $1 in PTC safety benefits. In
its congressional testimony, AAR testified that 2010 was the safest
year for America's railroads, that railroads have lower employee injury
rates than most other major industries, that only around 4 percent of
all train accidents on Class I main lines are likely to be prevented by
PTC systems, and that there are many far less costly ways to provide
greater improvements in rail safety than through the implementation of
PTC systems on lines not required by Congress to be equipped.\2\
According to the testimony, if the PTC rule remains unchanged,
railroads may be required to spend more than $500 million in the next
few years to deploy PTC systems on more than 10,000 miles of rail lines
on which neither passengers nor PIH materials will be transported as of
December 31, 2015.
---------------------------------------------------------------------------
\2\ See AAR Congressional Testimony, at 8-9.
---------------------------------------------------------------------------
While FRA believes that the alternative route analysis and residual
risk tests are legally sustainable, it recognizes that these tests
could potentially require the installation of PTC systems at a great
cost to the railroads. FRA also recognizes that the railroads have much
work to do to have interoperable PTC systems installed in accordance
with the congressional mandate. FRA is, therefore, proposing to
eliminate the tests that would potentially require the installation of
PTC systems on lines not specifically mandated by Congress.
FRA seeks comments from interested parties on the proposed removal
of the alternative route analysis from the PTC rule. FRA also seeks
comments on the proposed removal of the residual risk analysis. If FRA
were to remove these requirements, it proposes doing so by eliminating
Sec. 236.1020 as it currently exists. While FRA is proposing the
removal of these analyses from the PTC rule, FRA reserves its statutory
and regulatory authority to require PTC system implementation on
additional track segments in the future based on risk levels or other
rational bases.
IV. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures
This proposed rule has been evaluated in accordance with existing
policies and procedures, and determined to be significant under
Executive Order 12866, Executive Order 13563 and DOT policies and
procedures. 44 FR 11,034 (Feb. 26, 1979). We have prepared and placed
in the docket a regulatory impact analysis (RIA) addressing the
economic impact of this NPRM. FRA is proposing the removal of various
regulatory requirements that require railroads to meet two tests in
order to avoid PTC system implementation on track segments that were
used to transport PIH traffic and carried five million gross tons of
annual traffic in 2008, but that will not transport PIH materials
traffic and the applicable passenger traffic as of December 31, 2015.
Substantial cost savings would accrue largely from not installing PTC
system wayside components or other mitigations along approximately
10,000 miles of track. Although these rail lines would forego some risk
reduction, the reductions would likely be small since these lines pose
a much lower risk of accidents because they generally do not carry
passenger trains or PIH materials and generally have lower accident
frequency and severity, because the lines have relatively lower traffic
volumes than the average segment on which PTC systems will be required,
based on FRA's review of the data submitted by AAR. The analysis shows
that if the assumptions are correct, the savings to the industry in the
form of regulatory relief as proposed far outweigh the cost associated
with increased accident exposure.
The largest part of the cost savings benefit comes from reducing
the extent of wayside that must be equipped with PTC. Some of these
lines would have qualified for exemption by passing the two tests
contained in the 2010 PTC final rule, while others may not have. In
addition, benefits would come from reducing the number of locomotives
belonging to Class II and Class III (small) railroads that must be
equipped with PTC systems, because they run on Class I railroads' track
that will no longer need to be equipped with PTC systems. Although
these benefits would be small relative to the wayside equipment
savings, they would be large relative to the size of the railroads
being impacted. The tables below present the total estimated cost
savings benefits of the proposed rule, assuming installation or
[[Page 52923]]
additional mitigation measures would no longer be required along 10,000
miles of track. The analysis assumes that 5,000 miles of track would
have passed both tests with some mitigation measures being taken, and
the remaining 5,000 miles would not have passed both tests and would
have required PTC system implementation under the current rules.
Benefits
[20-year, discounted]
------------------------------------------------------------------------
Costs avoided 7% Discount 3% Discount
------------------------------------------------------------------------
Reduced Mitigation Costs, $91,793,822 $121,119,324
Including Maintenance............
Reduced Wayside Costs, Including 515,695,631 680,445,643
Maintenance......................
Reduced Locomotive Costs, 12,479,834 16,466,785
Including Maintenance............
-------------------------------------
Total Benefits................ 619,969,287 818,031,752
------------------------------------------------------------------------
Total costs may also be broken down into initial investment and
maintenance costs. Although railroads may already have spent money to
install and maintain PTC systems, FRA assumes here that those funds
have not been spent on the lines considered here, as they tend to be
lower volume, lower priority lines, and FRA assumes that the railroads
would not install PTC systems on those lines until 2014, at the
earliest, in the absence of this rulemaking. FRA seeks comment on this
assumption. FRA estimates that avoiding installation on 10,000 miles
would let railroads avoid $300.5 million in initial installation costs
(not discounted). Maintenance cost savings would total $366.0 million
(discounted at 7%) or $538.9 million (discounted at 3%). Maintenance
includes all of the activities and subsequent purchases needed to
operate the PTC system over its life-cycle, and to maintain its proper
functioning, reliability, and availability. Maintenance includes
training, system inspection, testing, adjustments, repair, and
replacement of components. Replacement components can be very expensive
in processor-based systems with relatively small installed bases, such
as PTC. PTC systems are not installed in great enough numbers to
justify a processor manufacturer making a processor just for PTC. PTC
systems developers must use standard processors, and over time those
processors usually become obsolete and are no longer supported or
manufactured. Then the PTC system developer must redesign and re-test
the PTC system to ensure it will continue to operate safely and
reliably with the new processor.
Costs associated with the proposed regulatory relief will come from
reducing the potential for accident reduction. A substantial part of
the accident reduction that FRA expects from PTC systems currently
required comes from reducing high-consequence accidents involving
passenger trains or the release of PIH materials. FRA believes that the
track segments impacted by this proposal pose significantly less risk
because they generally do not carry passenger trains or PIH materials
and generally have lower accident frequency and severity, as discussed
above, because the lines have relatively lower traffic volumes and
track speeds than the average segment on which PTC systems will be
required, based on FRA's review of the data submitted by AAR. The
following tables present the total costs of the proposed rule as well
as the breakdown of the costs by element.
Costs
[20-year, discounted]
------------------------------------------------------------------------
Foregone reductions in 7% Discount 3% Discount
------------------------------------------------------------------------
Fatality Prevention............... $11,453,106 $16,860,327
Injury Prevention................. 4,254,484 6,263,104
Train Delay....................... 117,793 173,406
Property Damage................... 10,163,835 14,962,367
Equipment Cleanup................. 143,273 210,915
Environmental Cleanup............. 430,995 634,475
Evacuations....................... 138,780 204,301
-------------------------------------
Total Costs................... 26,702,267 39,308,896
------------------------------------------------------------------------
The 20-year discounted net benefits (subtracting the costs from the
benefits) are expected to be $590 million over 20 years, discounted at
7 percent per year; and $780 million over 20 years, discounted at 3
percent per year. The timing of benefits and costs are such that a
large benefit in terms of capital investment is avoided in early years,
while the benefit of avoided maintenance and the disbenefit (costs) of
accidents not avoided would be realized annually in later years. FRA
also assessed the sensitivity of the analysis with respect to scenarios
in which railroads may only be able to get relief for 7,000 miles of
track and in which railroads may get relief on as many as 14,000 miles
of track. Each of these assumes that 50% of the track miles would have
passed both tests with some mitigation measures being taken, and that
the remaining 50% of the track miles would not have passed both tests
and would have required PTC system implementation under the current
rules. Such scenarios also show net benefits.
------------------------------------------------------------------------
Net societal benefits 7% Discount 3% Discount
------------------------------------------------------------------------
Expected Case (10,000 miles)...... $593,267,020 $778,722,856
[[Page 52924]]
High Case (14,000 miles).......... 793,856,299 1,041,764,269
Low Case (7,000 miles)............ 442,825,061 581,441,797
------------------------------------------------------------------------
Further, the benefit-cost ratios under the scenarios analyzed range
between 20:1 and 25:1.
------------------------------------------------------------------------
7% 3%
Benefit-cost ratio Discount Discount
------------------------------------------------------------------------
Expected Case..................................... 23.22 20.81
High Case......................................... 22.24 19.93
Low Case.......................................... 24.69 22.13
------------------------------------------------------------------------
The FRA invites comments on all aspects of this analysis, including
any costs and benefits regarding this NPRM that may not have been
considered in this analysis, and particularly seeks comments on the
time frame for installation, maintenance, and realization of costs and
benefits.
B. Regulatory Flexibility Act and Executive Order 13272
To ensure that the potential impact of this rulemaking on small
entities is properly considered, FRA developed this proposed rule in
accordance with Executive Order 13272 (``Proper Consideration of Small
Entities in Agency Rulemaking'') and DOT's policies and procedures to
promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.).
The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant economic
impact on a substantial number of small entities.
As discussed in earlier sections of this preamble, FRA is proposing
to amend the regulations implementing a provision of RSIA that requires
certain passenger and freight railroads to install PTC systems.
Specifically, FRA is proposing the removal of various regulatory
requirements that require railroads to either conduct further analyses
or meet certain risk-based criteria in order to avoid PTC system
implementation on track segments that carried PIH traffic and 5 million
or more gross tons of traffic in 2008 but that will not carry PIH
hazardous materials traffic as of December 31, 2015.
FRA is certifying that this proposed rule will result in ``no
significant economic impact on a substantial number of small
entities.'' The following section explains the reasons for this
certification.
1. Description of Regulated Entities and Impacts
The ``universe'' of the entities under consideration includes only
those small entities that can reasonably be expected to be directly
affected by the provisions of this rule. In this case, the ``universe''
would be Class III freight railroads that operate on rail lines that
are currently required to have PTC systems installed. Such lines are
owned by railroads not considered to be small.
The U.S. Small Business Administration (SBA) stipulates in its
``Size Standards'' that the largest a railroad business firm that is
``for-profit'' may be, and still be classified as a ``small entity,''
is 1,500 employees for ``Line Haul Operating Railroads'' and 500
employees for ``Switching and Terminal Establishments.'' ``Small
entity'' is defined in the Act as a small business that is
independently owned and operated, and is not dominant in its field of
operation. Additionally, section 601(5) defines ``small entities'' as
governments of cities, counties, towns, townships, villages, school
districts, or special districts with populations less than 50,000.
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to that authority, FRA has published a final policy
that formally establishes ``small entities'' as railroads which meet
the line haulage revenue requirements of a Class III railroad.\3\ The
revenue requirements are currently $20 million or less in annual
operating revenue. The $20 million limit (which is adjusted by applying
the railroad revenue deflator adjustment) \4\ is based on the Surface
Transportation Board's (STB) threshold for a Class III railroad
carrier. FRA is using the STB's threshold in its definition of ``small
entities'' for this rule.
---------------------------------------------------------------------------
\3\ See 68 FR 24891 (May 9, 2003); 49 CFR part 209, app. C.
\4\ For further information on the calculation of the specific
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------
The proposed regulation would impact Class III railroads that
operate on lines of other railroads currently required to have PTC
systems installed. To the extent that such host railroads receive
relief from such a requirement along certain lines as proposed in this
NPRM, Class III railroads that operate over those lines would not have
to equip their locomotives with PTC system components. FRA believes
that elimination of the two tests for relief from the requirement to
install PTC systems as proposed would in effect result in PTC systems
not being installed on track segments totaling over 10,000 miles in
length. Approximately five small railroads operate locomotives on lines
currently required to be equipped with PTC systems, but that would
receive relief under the proposed rule. In addition, two Class III
railroads operate over railroad crossings (diamonds) that intersect
tracks required to be equipped with PTC systems in the absence of
changes proposed in this notice. The total of seven affected Class III
railroads is not a substantial number of small entities, given that
there are 674 small railroads. If this FRA proposal becomes effective,
Class III railroads would avoid equipping 28 locomotives with PTC
onboard apparatuses at a cost savings of $55,000 per locomotive
initially plus maintenance of the PTC equipment. In addition, a Class
III railroad would avoid paying for PTC system installation at one
railroad-to-railroad crossing, at an initial cost of $80,000 plus
annual maintenance. Finally, Class III railroads would avoid
operational costs associated with having to reduce operating speeds to
cross over two railroad-to-railroad crossings at an annual cost of
$43,800. The unit costs presented above for installing PTC systems on
locomotives, and at railroad-to-railroad crossings, and the operational
costs of operating over a crossing at reduced speed are the values used
in the Regulatory Flexibility Analysis of the PTC final rule issued
January 15, 2010, and can be found in the docket for that rulemaking.
The changes FRA is proposing would benefit the small entities impacted.
FRA requests comment on whether the impacts on them would be
significant and whether the number of small railroads affected is
substantial. The seven railroads affected do not represent a
substantial number of railroads out of more than approximately 600
Class III railroads.
2. Certification
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the
FRA Administrator certifies that this proposed rule would not have a
significant economic impact on a
[[Page 52925]]
substantial number of small entities. FRA requests comment on both this
analysis and this certification, and its estimates of the impacts on
small railroads.
C. Paperwork Reduction Act
The information collection requirements in this proposed rule are
being submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the current information collection
requirements and the estimated time to fulfill each proposed
requirement are summarized as follows:
----------------------------------------------------------------------------------------------------------------
Total annual Average time per Total annual
CFR Section Respondent universe responses response burden hours
----------------------------------------------------------------------------------------------------------------
234.275--Processor-Based Systems-- 20 Railroads....... 25 letters......... 4 hours............ 100
Deviations from Product Safety
Plan (PSP)--Letters.
236.18--Software Mgmt Control 184 Railroads...... 184 plans.......... 2,150 hours........ 395,600
Plan.
--Updates to Software Mgmt. 90 Railroads....... 20 updates......... 1.50 hours......... 30
Control Plan.
236.905--Updates to RSPP......... 78 Railroads....... 6 plans............ 135 hours.......... 810
--Response to Request For 78 Railroads....... 1 updated doc...... 400 hours.......... 400
Additional Info.
--Request for FRA Approval of 78 Railroads....... 1 request/modified 400 hours.......... 400
RSPP Modification. RSPP.
236.907--Product Safety Plan 5 Railroads........ 5 plans............ 6,400 hours........ 32,000
(PSP)--Dev.
236.909--Minimum Performance
Standard.
--Petitions For Review and 5 Railroads........ 2 petitions/PSP.... 19,200 hours....... 38,400
Approval.
--Supporting Sensitivity Analysis 5 Railroads........ 5 analyses......... 160 hours.......... 800
236.913--Notification/Submission 6 Railroads........ 1 joint plan....... 25,600 hours....... 25,600
to FRA of Joint Product Safety
Plan (PSP).
--Petitions For Approval/ 6 Railroads........ 6 petitions........ 1,928 hours........ 11,568
Informational Filings.
--Responses to FRA Request For 6 Railroads........ 2 documents........ 800 hours.......... 1,600
Further Info. After
Informational Filing.
--Responses to FRA Request For 6 Railroads........ 6 documents........ 16 hours........... 96
Further Info. After Agency
Receipt of Notice of Product
Development.
--Consultations.................. 6 Railroads........ 6 consults......... 120 hours.......... 720
--Petitions for Final Approval... 6 Railroads........ 6 petitions........ 16 hours........... 96
--Comments to FRA by Interested Public/RRs......... 7 comments......... 240 hours.......... 1,680
Parties.
--Third Party Assessments of PSP. 6 Railroads........ 1 assessment....... 104,000 hours...... 104,000
--Amendments to PSP.............. 6 Railroads........ 15 amendments...... 160 hours.......... 2,400
--Field Testing of Product--Info. 6 Railroads........ 6 documents........ 3,200 hours........ 19,200
Filings.
236.917--Retention of Records.... ................... ................... 160,000 hrs........
--Results of tests/inspections 6 Railroads........ 3 documents/records 160,000 hrs.; 360,000
specified in PSP. 40,000 hrs.
--Report to FRA of 6 Railroads........ 1 report........... 104 hours.......... 104
Inconsistencies with frequency
of safety-relevant hazards in
PSP.
236.919--Operations & Maintenance
Man.
--Updates to O & M Manual........ 6 Railroads........ 6 updated docs..... 40 hours........... 240
--Plans For Proper Maintenance, 6 Railroads........ 6 plans............ 53,335 hours....... 320,010
Repair, Inspection of Safety-
Critical Products.
--Hardware/Software/Firmware 6 Railroads........ 6 revisions........ 6,440 hours........ 38,640
Revisions.
236.921--Training Programs: 6 Railroads........ 6 Tr. Programs..... 400 hours.......... 2,400
Development.
--Training of Signalmen & 6 Railroads........ 300 signalmen; 20 40 hours........... 12,400
Dispatchers. dispatchers. 20 hours...........
236.923--Task Analysis/Basic 6 railroads........ 6 documents........ 720 hours.......... 4,320
Requirements: Necessary
Documents.
--Records........................ 6 railroads........ 350 records........ 10 minutes......... 58
SUBPART I--NEW REQUIREMENTS
--236.1001--RR Development of 46 railroads....... 3 rules............ 80 hours........... 240
More Stringent Rules Re: PTC
Performance Stds.
--236.1005--Requirements for PTC
Systems.
--Temporary Rerouting: Emergency 46 railroads....... 50 requests........ 8 hours............ 400
Requests.
--Written/Telephonic Notification 46 railroads....... 50 notifications... 2 hours............ 100
to FRA Regional Administrator.
--Temporary Rerouting Requests 46 railroads....... 760 requests....... 8 hours............ 6,080
Due to Track Maintenance.
--Temporary Rerouting Requests 46 railroads....... 380 requests....... 8 hours............ 3,040
That Exceed 30 Days.
--236.1006--Requirements for
Equipping Locomotives Operating
in PTC Territory.
--Reports of Movements in Excess 46 railroads....... 45 reports + 45 8 hours + 170...... 8,010
of 20 Miles/RR Progress on PTC reports.
Locomotives.
--PTC Progress Reports........... 46 railroads....... 35 reports......... 16 hours........... 560
--236.1007--Additional
Requirements for High Speed
Service.
--Required HSR-125 Documents with 46 railroads....... 3 documents........ 3,200 hours........ 9,600
approved PTCSP.
--Requests to Use Foreign Service 46 railroads....... 2 requests......... 8,000 hours........ 6,000
Data.
[[Page 52926]]
--PTC Railroads Conducting 46 railroads....... 3 documents........ 3,200 hours........ 9,600
Operations at More than 150 MPH
with HSR-125 Documents.
--Requests for PTC Waiver........ 46 railroads....... 1 request.......... 1,000 hours........ 1,000
236.1009-Procedural Requirements.
--Host Railroads Filing PTCIP or 46 Railroads....... 1 PCTIP; 20 RFAs... 535 hours; 320 6,935
Request for Amendment (RFAs). hours.
--Jointly Submitted PTCIPs....... 46 Railroads....... 5 PTCIPs........... 267 hours.......... 1,335
--Notification of Failure to File 46 Railroads....... 1 notification..... 32 hours........... 32
Joint PTCIP.
--Comprehensive List of Issues 46 Railroads....... 1 list............. 80 hours........... 80
Causing Non-Agreement.
--Conferences to Develop Mutually 46 Railroads....... 1 conf. calls...... 60 minutes......... 1 hour
Acceptable PCTIP.
--Type Approval.................. 46 Railroads....... 2 Type Appr........ 8 hours............ 16
--PTC Development Plans 46 Railroads....... 20 Ltr. + 20 App; 2 8 hrs/1600 hrs.; 44,960
Requesting Type Approval. Plans. 6,400 hours.
--Notice of Product Intent w/ 46 Railroads....... 3 NPI; 1 IP........ 1,070 + 535 hrs.... 3,745
PTCIPs (IPs).
--PTCDPs with PTCIPs (DPs + IPs). 46 Railroads....... 1 DP............... 2,135 hours........ 2,135
--Updated PTCIPs w/PTCDPs (IPs + 46 Railroads....... 1 IP; 1 DP......... 535 + 2,135 hrs.... 2,670
DPs).
--Disapproved/Resubmitted PTCIPs/ 46 Railroads....... 1 IP + 1 NPI....... 135 + 270 hrs...... 405
NPIs.
--Revoked Approvals--Provisional 46 Railroads....... IP + 1 DP.......... 135 + 535 hrs...... 670
IPs/DP.
--PTC IPs/PTCDPs Still Needing 46 Railroads....... 1 IP + 1 DP........ 135 + 535 hrs...... 670
Rework.
--PTCIP/PTCDP/PTCSP Plan 46 Railroads....... 1 document......... 8,000 hours........ 8,000
Contents--Documents Translated
into English.
--Requests for Confidentiality... 46 Railroads....... 46 ltrs; 46 docs... 8 hrs.; 800 hrs.... 37,168
--Field Test Plans/Independent 46 Railroads....... 230 field tests; 2 800 hours.......... 185,600
Assessments--Req. by FRA. assessments.
--FRA Access: Interviews with PTC 46 Railroads....... 92 interviews...... 30 minutes......... 46
Wrkrs.
--FRA Requests for Further 46 Railroads....... 8 documents........ 400 hours.......... 3,200
Information.
236.1011--PTCIP Requirements-- 7 Interested Groups 1 rev.; 40 com..... 143 + 8 hrs........ 463
Comment.
236.1015--PTCSP Content
Requirements & PTC System
Certification.
--Non-Vital Overlay.............. 46 Railroads....... 3 PTCSPs........... 16,000 hours....... 48,000
--Vital Overlay.................. 46 Railroads....... 28 PTCSPs.......... 22,400 hours....... 627,200
--Stand Alone.................... 46 Railroads....... 14 PTCSPs.......... 32,000 hours....... 448,000
--Mixed Systems--Conference with 46 Railroads....... 3 conferences...... 32 hours........... 96
FRA regarding Case/Analysis.
--Mixed Sys. PTCSPs (incl. safety 46 Railroads....... 1 PTCSP............ 28,800 hours....... 28,800
case).
--FRA Request for Additional 46 Railroads....... 23 documents....... 3,200 hours........ 73,600
PTCSP Data.
--PTCSPs Applying to Replace 46 Railroads....... 23 PTCSPs.......... 3,200 hours........ 73,600
Existing Certified PTC Systems.
--Non-Quantitative Risk 46 Railroads....... 23 assessments..... 3,200 hours........ 73,600
Assessments Supplied to FRA.
236.1017--PTCSP Supported by 46 Railroads....... 1 assessment....... 8,000 hours........ 8,000
Independent Third Party
Assessment.
--Written Requests to FRA to 46 Railroads....... 1 request.......... 8 hours............ 8
Confirm Entity Independence.
--Provision of Additional 46 Railroads....... 1 document......... 160 hours.......... 160
Information After FRA Request.
--Independent Third Party 46 Railroads....... 1 request.......... 160 hours.......... 160
Assessment: Waiver Requests.
--RR Request for FRA to Accept 46 Railroads....... 1 request.......... 32 hours........... 32
Foreign Railroad Regulator
Certified Info.
236.1019--Main Line Track
Exceptions.
--Submission of Main Line Track 46 Railroads....... 46 MTEAs........... 160 hours.......... 7,360
Exclusion Addendums (MTEAs).
--Passenger Terminal Exception-- 46 Railroads....... 23 MTEAs........... 160 hours.......... 3,680
MTEAs.
--Limited Operation Exception-- 46 Railroads....... 23 plans........... 160 hours.......... 3,680
Risk Mit.
--Ltd. Exception--Collision 46 Railroads....... 12 analyses........ 1,600 hours........ 19,200
Hazard Anal.
--Temporal Separation Procedures. 46 Railroads....... 11 procedures...... 160 hours.......... 1,760
236.1021--Discontinuances, 46 Railroads....... 23 RFAs............ 160 hours.......... 3,680
Material Modifications,
Amendments--Requests to Amend
(RFA) PTCIP, PTCDP or PTCSP.
--Review and Public Comment on 7 Interested Groups 7 reviews + 20 3 hours; 16 hours.. 341
RFA. comments.
236.1023--PTC Product Vendor 46 Railroads....... 46 lists........... 8 hours............ 368
Lists.
--RR Procedures Upon Notification 46 Railroads....... 46 procedures...... 16 hours........... 736
of PTC System Safety-Critical
Upgrades, Rev., Etc.
--RR Notifications of PTC Safety 46 Railroads....... 150 notification... 16 hours........... 2,400
Hazards.
--RR Notification Updates........ 46 Railroads....... 150 updates........ 16 hours........... 2,400
--Manufacturer's Report of 5 System Suppliers. 5 reports.......... 400 hours.......... 2,000
Investigation of PTC Defect.
[[Page 52927]]
--PTC Supplier Reports of Safety 5 System Suppliers. 150 reports + 150 16 hours + 8 hours. 3,600
Relevant Failures or Defective rpt. copies.
Conditions.
236.1029--Report of On-Board Lead 46 Railroads....... 1,012 reports...... 96 hours........... 97,152
Locomotive PTC Device Failure.
236.1031--Previously Approved PTC
Systems.
--Request for Expedited 46 Railroads....... 3 REC Letters...... 160 hours.......... 480
Certification (REC) for PTC
System.
--Requests for Grandfathering on 46 Railroads....... 3 requests......... 1,600 hours........ 4,800
PTCSPs.
236.1035--Field Testing 46 railroads....... 230 field test 800 hours.......... 184,000
Requirements. plans.
--Relief Requests from 46 Railroads....... 46 requests........ 320 hours.......... 14,720
Regulations Necessary to Support
Field Testing.
236.1037--Records Retention.
--Results of Tests in PTCSP and 46 railroads....... 1,012 records...... 4 hours............ 4,048
PTCDP.
--PTC Service Contractors 46 Railroads....... 22,080 records..... 30 minutes......... 11,040
Training Records.
--Reports of Safety Relevant 46 Railroads....... 4 reports.......... 8 hours............ 32
Hazards Exceeding Those in PTCSP
and PTCDP.
--Final Report of Resolution of 46 Railroads....... 4 final reports.... 160 hours.......... 640
Inconsistency.
--236.1039--Operations & 46 railroads....... 46 manuals......... 250 hours.......... 11,500
Maintenance Manual (OMM):
Development.
--Positive Identification of 46 railroads....... 120,000 i.d. 1 hour............. 120,000
Safety-critical components. components.
--Designated RR Officers in OMM. 46 railroads....... 92 designations.... 2 hours............ 184
regarding PTC issues.
--236.1041--PTC Training Programs 46 Railroads....... 46 programs........ 400 hours.......... 18,400
--236.1043--Task Analysis/Basic 46 railroads....... 46 evaluations..... 720 hours.......... 33,120
Requirements: Training
Evaluations.
--Training Records............... 46 railroads....... 560 records........ 10 minutes......... 93
--236.1045--Training Specific to 46 railroads....... 32 trained 20 hours........... 640
Office Control Personnel. employees.
--236.1047--Training Specific to
Loc. Engineers & Other Operating
Personnel.
--PTC Conductor Training......... 30 railroads....... 8,000 trained 3 hours............ 24,000
conductors.
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at
202-493-6073.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Toone at the following
address: [email protected]; [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after its publication in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. The final rule will respond
to any OMB or public comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
D. Federalism Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132,
``Federalism.'' See 64 FR 43,255 (Aug. 4, 1999). As discussed earlier
in the preamble, this proposed rule would provide regulatory relief
from the mandated implementation of PTC systems.
Executive Order 13132 requires FRA to develop a process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
Policies that have ``federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects 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.'' Under
Executive Order 13132, the agency may not issue a regulation with
federalism implications that imposes substantial direct compliance
costs and that is not required by statute, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or the agency consults
with State and local government officials early in the process of
developing the regulation. Where a
[[Page 52928]]
regulation has federalism implications and preempts state law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
FRA has determined that this proposed rule would not have
substantial direct effects on the States, on the relationship between
the national government and the States, nor on the distribution of
power and responsibilities among the various levels of government. In
addition, FRA has determined that this proposed rule would not impose
any direct compliance costs on State and local governments. Therefore,
the consultation and funding requirements of Executive Order 13132 do
not apply.
However, this proposed rule will have preemptive effect. Section
20106 of Title 49 of the United States Code provides that States may
not adopt or continue in effect any law, regulation, or order related
to railroad safety or security that covers the subject matter of a
regulation prescribed or order issued by the Secretary of
Transportation (with respect to railroad safety matters) or the
Secretary of Homeland Security (with respect to railroad security
matters), except when the State law, regulation, or order qualifies
under the local safety or security exception to Sec. 20106.
Furthermore, the Locomotive Boiler Inspection Act (49 U.S.C. 20701-
20703) has been held by the U.S. Supreme Court to preempt the entire
field of locomotive safety.
In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than the possible preemption of State
laws. Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this proposed rule is not required.
E. Environmental Impact
FRA has evaluated this proposed 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 proposed rule 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. 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 proposed rule is not a major Federal action
significantly affecting the quality of the human environment.
F. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C.
1531) (UMRA) requires agencies to prepare a written assessment of the
costs, benefits, and other effects of proposed or final rules that
include a federal mandate likely to result in the expenditures by
state, local or tribal governments, in the aggregate, or by the private
sector, of $100 million (adjusted annually for inflation with base year
of 1995) or more in any one year. The value equivalent of $100 million
in CY 1995, adjusted annual for inflation to CY 2008 levels by the
Consumer Price Index for All Urban Consumers (CPI-U) is $141.3 million.
The assessment may be included in conjunction with other assessments,
as it is in this rulemaking.
FRA is publishing this NPRM to provide additional flexibility in
standards for the development, testing, implementation, and use of PTC
systems for railroads mandated by RSIA to implement PTC systems. The
RIA provides a detailed analysis of the costs and benefits of the NPRM.
This analysis is the basis for determining that this rule will not
result in total expenditures by State, local or tribal governments, in
the aggregate, or by the private sector of $141.3 million or more in
any one year. The costs associated with this NPRM are reduced accident
reduction from an existing rule. The aforementioned costs borne by all
parties will not exceed $3.3 million in any one year.
G. 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 this proposed rule in accordance with
Executive Order 13211. FRA has determined that this proposed rule is
not 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 regulatory action''
within the meaning of Executive Order 13211.
H. Privacy Act
FRA wishes to inform all interested parties that anyone is able to
search the electronic form of any written communications and comments
received into any of our dockets by the name of the individual
submitting the document (or signing the document, if submitted on
behalf of an association, business, labor union, etc.). Interested
parties may also review DOT's complete Privacy Act Statement in the
Federal Register published on April 11, 2000 (65 FR 19477) or visit
http://www.regulations.gov.
List of Subjects
49 CFR Part 236
Penalties, Positive train control, Railroad safety, Reporting and
recordkeeping requirements.
V. The Proposed Rule
In consideration of the foregoing, FRA proposes to amend chapter
II, subtitle B of title 49, Code of Federal Regulations as follows:
PART 236--[AMENDED]
1. The authority citation for part 236 continues to read as
follows:
Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20157,
20301-20303, 20306, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49
CFR 1.49.
2. Amend Sec. 236.1003 by adding the definition ``PIH Materials''
to paragraph (b) to read as follows:
Sec. 236.1003 Definitions.
* * * * *
(b) * * *
PIH Materials means materials poisonous by inhalation, as defined
in Sec. Sec. 171.8, 173.115, and 173.132 of this title.
* * * * *
3. Amend Sec. 236.1005 by redesignating paragraph (b)(4)(ii) as
paragraph (b)(4)(iii); revise paragraph (b)(4)(i) and add a new
paragraph (b)(4)(ii) to read as follows:
[[Page 52929]]
Sec. 236.1005 Requirements for Positive Train Control systems.
* * * * *
(b) * * *
(4) * * *
(i) Routing changes. In a PTCIP or an RFA, a railroad may request
review of the requirement to install PTC on a track segment where a PTC
system is otherwise required by this section, but has not yet been
installed, based upon changes in rail traffic such as reductions in
total traffic volume to a level below 5 million gross tons annually or
cessation of passenger service or PIH materials traffic. Any such
request shall be accompanied by estimated traffic projections for the
next 5 years (e.g., as a result of planned rerouting, coordinations, or
location of new business on the line).
(ii) FRA will approve the exclusion requested pursuant to paragraph
(b)(4)(i) of this section if the railroad establishes the following:
(A) The cessation of passenger service on the involved track
segment prior to January 1, 2016;
(B) A decline in gross tonnage below 5 million gross tons annually
as computed over a 2-year period on the involved track segment; or
(C) The cessation or expected cessation of PIH traffic over the
involved track segment prior to January 1, 2016.
* * * * *
Sec. 236.1020 [Removed and reserved]
4. Remove and reserve Sec. 236.1020.
Issued in Washington, DC, on August 17, 2011.
Joseph C. Szabo,
Administrator.
[FR Doc. 2011-21454 Filed 8-23-11; 8:45 am]
BILLING CODE 4910-06-P