[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Rules and Regulations]
[Pages 94271-94274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30812]



[[Page 94271]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[FRA-2008-0136, Notice No. 9]
RIN 2130-ZA14


Monetary Threshold for Reporting Rail Equipment Accidents/
Incidents for Calendar Year 2017

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 
monetary reporting threshold (reporting threshold) from $10,500 to 
$10,700 for railroad accidents/incidents involving property damage that 
occur during calendar year (CY) 2017 that FRA's accident/incident 
reporting regulations require railroads to report to the agency. This 
action is needed to ensure FRA's reporting requirements reflect cost 
increases that have occurred since FRA last published the reporting 
threshold in December 2015.

DATES: This final rule is effective January 1, 2017.

FOR FURTHER INFORMATION CONTACT: Kebo Chen, Staff Director, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room 
W33-314, 1200 New Jersey Ave. SE., Washington, DC 20590 (telephone 202-
493-6079); 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 W31-124, 
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). A 
railroad must report each rail equipment accident/incident to FRA using 
the Rail Equipment Accident/Incident Report (Form FRA F 6180.54). See 
49 CFR 225.19(b), (c) and 225.21(a). Paragraphs (c) and (e) of 49 CFR 
225.19 further provide that FRA will adjust the dollar figure that 
constitutes the reporting threshold, if necessary, every year under the 
procedures in appendix B to 49 CFR part 225 (Appendix B) to reflect any 
cost increases or decreases.
    In addition to periodically reviewing and adjusting the reporting 
threshold under Appendix B, FRA periodically amends its method for 
calculating the threshold. In 49 U.S.C. 20901(b), Congress requires 
that FRA base the reporting threshold on publicly available information 
obtained from the Bureau of Labor Statistics (BLS), other objective 
government source, or be subject to notice and comment. In 1996, FRA 
adopted a new method for calculating the reporting threshold for rail 
equipment accidents/incidents. See 61 FR 60632, Nov. 29, 1996. In 2005, 
FRA again amended its method for calculating the reporting threshold 
because the BLS ceased collecting and publishing the railroad wage data 
FRA used in the calculation. Consequently, FRA substituted railroad 
employee wage data the Surface Transportation Board (STB) collects for 
the data BLS ceased to collect. See 70 FR 75414, Dec. 20, 2005. In a 
separate rulemaking, FRA intends to evaluate and amend, if appropriate, 
its method for calculating the reporting threshold and, as a result, 
the formula used to calculate the reporting threshold may change. FRA 
intends to reexamine its method for calculating the reporting threshold 
because new methodologies for calculating the threshold are available. 
FRA believes updating its methodology to include these advances will 
ensure the reporting threshold reflects changes in equipment and labor 
costs as accurately as possible.

New Reporting Threshold

    Approximately one year has passed since FRA reviewed the reporting 
threshold. See 80 FR 80683, Dec. 28, 2015. Consequently, FRA has 
recalculated the reporting threshold under 49 CFR 225.19(c), based on 
increased costs for labor and increased costs for equipment. FRA has 
determined that the current reporting threshold of $10,500, which 
applies to rail equipment accidents/incidents that occur during CY 
2016, should increase by $200 to $10,700 for rail equipment accidents/
incidents occurring during CY 2017. 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]) are:

----------------------------------------------------------------------------------------------------------------
                   Tprior                           Wnew            Wprior            Enew            Eprior
----------------------------------------------------------------------------------------------------------------
$10,500.....................................       $29.99942        $29.80388        203.33333        200.63333
----------------------------------------------------------------------------------------------------------------

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 Producer Price 
Index (PPI) value; Eprior = Prior equipment average PPI value. Using 
the above figures, the calculated new threshold, (Tnew) is $10,697.669, 
which is rounded to the nearest $100 for a final new reporting 
threshold of $10,700 for CY 2017.\1\
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    \1\ On June 12, 2013, Union Pacific Railroad Company filed a 
revised 2nd Quarterly Report of Wage A&B Data (Form A Wage 
Statistics Summary--0100) for 2012 with the Surface Transportation 
Board, following the publication of the 2013 threshold. Based upon 
the revised data, the 2013 threshold would have been $10,000 (Tnew = 
9500*(1+0.4*(26.10-24.93)/24.93+0.6*(191.5-186.37)/100.00) = 
9970.76). The current method for calculating the current threshold 
requires using the prior threshold as published in the Federal 
Register. Even though the corrected threshold for 2013 would have 
been higher at $10,000, leading to a higher Tprior in the 
calculation for 2014, the end result for 2014 is still $10,500 using 
the current formula.
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Notice and Comment Procedures

    In this rule, FRA has recalculated the reporting threshold based on 
the formula discussed in detail and adopted, after notice and comment, 
in the final rule published December 20, 2005. See 70 FR 75414, Dec. 
20, 2005. FRA finds 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 finds this rule 
imposes no additional burden on any person, but rather is intended to 
provide a benefit by permitting the valid comparison of accident data 
over time.

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Accordingly, finding that notice and comment procedures are either 
impracticable, unnecessary, or contrary to the public interest, FRA is 
proceeding directly to a final rule.
    FRA regularly reviews and recalculates the reporting threshold 
using the formula published in Appendix B near the end of each CY. 
Therefore, any person affected by this rule should anticipate the on-
going adjustment of the reporting threshold and has reasonable time to 
make any minor changes necessary to come into compliance with the 
reporting requirements. FRA attempts to use the most recent data 
available to calculate the updated reporting threshold prior to the 
next CY. FRA has found that issuing the rule no later than December of 
each CY 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 finds that it has good cause to 
make this final rule effective January 1, 2017.

Regulatory Evaluation

Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    FRA evaluated this final rule under existing policies and 
procedures and determined it is non-significant under both Executive 
Orders 12866 and 13563, and DOT policies and procedures. See 44 FR 
11034, Feb. 26, 1979.

Regulatory Flexibility Act

    FRA developed this rule under Executive Order 13272 (``Proper 
Consideration of Small Entities in Agency Rulemaking'') and DOT's 
procedures and policies to promote compliance with the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) to ensure potential impacts of 
rules on small entities are properly considered.
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities, unless the 
Secretary certifies the rule will not have a significant economic 
impact on a substantial number of small entities. Under Section 312 of 
the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 
104-121), Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in consultation with public 
comment. Under that authority, FRA has published a final statement of 
agency policy formally establishing for FRA's regulatory purposes 
``small entities'' as railroads, contractors, and hazardous materials 
shippers that meet the revenue requirements of a Class III railroad as 
set forth in 49 CFR 1201.1-1 ($20 million or less in inflation-adjusted 
annual revenues, and commuter railroads or small governmental 
jurisdictions that serve populations of 50,000 or less). See 49 CFR 
part 209, appendix C. FRA used this definition for this rulemaking.
    About 743 of the approximately 792 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 employing thousands of employees and operating 
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, 
FRA data indicate railroads reported 2,029 rail equipment accidents/
incidents in 2011, with small railroads reporting 276 of them. Data for 
2012 show railroads reported 1,765 rail equipment accidents/incidents, 
with small railroads reporting 254 of them. Data for 2013 show that 
1,849 rail equipment accidents/incidents were reported, with small 
railroads reporting 271 of them. In 2014, 1,870 rail equipment 
accidents/incidents were reported, and small railroads reported 230 of 
them. In 2015, 1,912 rail equipment accidents/incidents were reported, 
with small railroads reporting 253 of them. On average over those five 
calendar years, small railroads reported about 14% (ranging from 12% to 
15%) 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., absent increasing the 
reporting threshold), the number of reportable accidents/incidents in 
CY 2017 would likely increase, as keeping the 2016 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 railroads, due to the higher proportion 
of reportable rail equipment accidents/incidents experienced by large 
entities.
    Furthermore, FRA has determined the RFA does not apply to this 
rulemaking. Given this rule merely updates the reporting threshold for 
CY 2017 using the formula developed through notice and comment 
rulemaking and published in Appendix B, FRA finds notice and public 
comment is unnecessary and would serve no public benefit. The Small 
Business Administration's A Guide for Government Agencies: How to 
Comply with the Regulatory Flexibility Act (2012, p.55), provides:

    If, under the APA or any rule of general applicability governing 
federal grants to state and local governments, the agency is 
required to publish a general notice of proposed rulemaking (NPRM), 
the RFA must be considered [citing 5 U.S.C. 604(a)] . . . . If an 
NPRM is not required, the RFA does not apply.

Because this rulemaking does not require a Notice of Proposed 
Rulemaking, the RFA does not apply.

Paperwork Reduction Act

    There are no new or additional information collection requirements 
associated with this final rule. FRA's collection of accident/incident 
reporting and recordkeeping information is currently approved under OMB 
No. 2130-0500. Therefore, FRA is not required to provide an estimate of 
a public reporting burden in this document.

Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable 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

[[Page 94273]]

with State and local government officials early in the process of 
developing the regulation. Where a 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 analyzed this final rule under the principles and criteria 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 Executive Order 13132. In addition, FRA determined this rule does 
not impose substantial direct compliance costs on State and local 
governments. Accordingly, FRA concluded the consultation and funding 
requirements of Executive Order 13132 do not apply and preparation of a 
federalism assessment is not required.

Environmental Impact

    FRA evaluated this final rule under 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 this final 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 under 
section 4(c)(20) of FRA's Procedures. See 64 FR 28547, May 26, 1999. 
Section 4(c)(20) reads as follows:

    (c) Actions categorically excluded. Certain classes of FRA 
actions have been determined to be categorically excluded from the 
requirements of these Procedures as they do not individually or 
cumulatively have a significant effect on the human environment. . . 
. The following classes of FRA actions are categorically excluded: . 
. . (20) Promulgation of railroad safety rules and policy statements 
that do not result in significantly increased emissions or air or 
water pollutants or noise or increased traffic congestion in any 
mode of transportation.

    Consistent with section 4(c)(20) of FRA's Procedures, FRA 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 this rule is not a major 
Federal action significantly affecting the quality of the human 
environment.

Unfunded Mandates Reform Act of 1995

    Under 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 $100,000,000 or more (adjusted annually for 
inflation) in any 1 year, and before promulgating any final rule for 
which a general notice of proposed rulemaking was published, the agency 
shall prepare a written statement detailing the effect on State, local, 
and tribal governments and the private sector. This final rule will not 
result in the expenditure of more than $156,000,000 by the public 
sector in any one year. 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 a 
notice of inquiry, advance notice of proposed rulemaking, and notice 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) is designated by the Administrator of the Office 
of Information and Regulatory Affairs as a significant energy action. 
FRA has evaluated this rule under Executive Order 13211. FRA has 
determined this rule will not have a significant adverse effect on the 
supply, distribution, or use of energy, and, thus, is not a 
``significant energy action'' under Executive Order 13211.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a) (91 FR 27534, May 10, 2012) require DOT agencies to 
achieve environmental justice as part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects, including interrelated social 
and economic effects, of their programs, policies, and activities on 
minority populations and low-income populations. The DOT Order 
instructs DOT agencies to address compliance with Executive Order 12898 
and requirements within the DOT Order in rulemaking activities, as 
appropriate. FRA evaluated this final rule under Executive Order 12898 
and the DOT Order and determined it would not cause disproportionately 
high and adverse human health and environmental effects on minority or 
low-income populations.

Executive Order 13175 (Tribal Consultation)

    FRA evaluated this final rule under the principles and criteria in 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, dated November 6, 2000. This final rule will not have a 
substantial direct effect on one or more Indian tribes, will not impose 
substantial direct compliance costs on Indian tribal governments, and 
will not preempt tribal laws. Therefore, the funding and consultation 
requirements of Executive Order 13175 do not apply, and a tribal 
summary impact statement is not required.

Trade Impact

    The Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.) prohibits 
Federal agencies from engaging in any standards setting or related 
activities that create unnecessary obstacles to the foreign commerce of 
the United States. Legitimate domestic objectives, such as safety, are 
not considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. FRA assessed the potential effect 
of this final rule on foreign commerce and concluded its requirements 
are consistent with the Trade Agreements Act.

Privacy Act

    Interested parties should be aware that anyone can search the 
electronic form of all written comments received

[[Page 94274]]

into any agency docket by the name of the individual submitting the 
comment (or signing the comment, if submitted on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register (65 FR 19477-
19478, Apr. 11, 2000) or you may visit http://www.transportation.gov/privacy.

List of Subjects in 49 CFR Part 225

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

The Rule

    In consideration of the foregoing, FRA amends part 225 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 1.89.

0
2. In Sec.  225.19, revise the first sentence of paragraph (c), and 
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, $8,900 for calendar year 2009, $9,200 for calendar 
year 2010, $9,400 for calendar year 2011, $9,500 for calendar year 
2012, $9,900 for calendar year 2013, $10,500 for calendar year 2014, 
$10,500 for calendar year 2015, $10,500 for calendar year 2016, and 
$10,700 for calendar year 2017) 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, $8,900 for calendar year 2009, 
$9,200 for calendar year 2010, $9,400 for calendar year 2011, $9,500 
for calendar year 2012, $9,900 for calendar year 2013, $10,500 for 
calendar year 2014, $10,500 for calendar year 2015, $10,500 for 
calendar year 2016, and $10,700 for calendar year 2017. The procedure 
for determining the reporting threshold for calendar years 2006 and 
beyond appears as paragraphs 1-8 of appendix B to part 225.
* * * * *

Sarah E. Feinberg,
Administrator.
[FR Doc. 2016-30812 Filed 12-22-16; 8:45 am]
 BILLING CODE 4910-06-P