[Federal Register Volume 82, Number 229 (Thursday, November 30, 2017)]
[Rules and Regulations]
[Pages 56744-56747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25821]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 270

[Docket No. FRA-2011-0060, Notice No. 7]
RIN 2130-AC71


System Safety Program

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

ACTION: Final rule; stay of regulations.

-----------------------------------------------------------------------

SUMMARY: On August 12, 2016, FRA published a final rule requiring 
commuter and intercity passenger railroads to develop and implement a 
system safety program (SSP) to improve the safety of their operations. 
On February 10, 2017, FRA stayed the SSP final rule's requirements 
until March 21, 2017, and extended the stay until May 22, 2017, June 5, 
2017, and then December 4, 2017. FRA is issuing this final rule to 
extend that stay until December 4, 2018.

DATES: Effective November 29, 2017, the stay of 49 CFR part 270 is 
extended until December 4, 2018. Petitions for reconsideration must be 
received on or before January 19, 2018. Comments in response to 
petitions for reconsideration must be received on or before March 5, 
2018.

ADDRESSES: Petitions for reconsideration and comments on petitions for 
reconsideration: Any petitions for reconsideration or comments on 
petitions for reconsideration related to this Docket No. FRA-2011-0060, 
Notice No. 7, may be submitted by any of the following methods:
     Web site: The Federal eRulemaking Portal, 
www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, 
DC 20590.
     Hand Delivery: Docket Management Facility, Room W12-140 on 
the ground level of the West Building, U.S. Department of 
Transportation, 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 (2130-AC71). Note that all petitions and comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided. Please see the Privacy Act heading 
in the SUPPLEMENTARY INFORMATION section of this document for Privacy 
Act information related to any submitted petitions, comments or 
materials.
    Docket: For access to the docket to read background documents, 
petitions for reconsideration, or comments received, go to http://www.regulations.gov at any time or visit the Docket Management 
Facility, U.S. Department of Transportation, 1200 New Jersey Avenue 
SE., Room W12-140 on the Ground level of the West Building, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Elizabeth A. Gross, Trial Attorney, 
U.S. Department of Transportation, Federal Railroad Administration, 
Office of Chief Counsel; telephone: 202-493-1342; email: 
[email protected].

SUPPLEMENTARY INFORMATION: On August 12, 2016, FRA published a final 
rule requiring commuter and intercity passenger railroads to develop 
and implement an SSP to improve the safety of their operations. See 81 
FR 53850. On February 10, 2017, FRA stayed the SSP final rule's 
requirements until March 21, 2017, consistent with the new 
Administration's guidance issued January 20, 2017, intended to provide 
the Administration an adequate opportunity to review new and pending 
regulations. See 82 FR 10443 (Feb. 13, 2017). To provide additional 
time for that review, FRA extended the stay until May 22, 2017, June 5, 
2017, and then December 4, 2017. See 82 FR 14476 (Mar. 21, 2017), 82 FR 
23150 (May 22, 2017), and 82 FR 26359 (June 7, 2017). These stays of 
the rule's requirements did not affect the SSP final rule's information 
protection provisions in 49 CFR 270.105, which took effect for 
information a railroad compiles or collects solely for SSP purposes on 
August 14, 2017.
    FRA's review included petitions for reconsideration of the SSP 
final rule

[[Page 56745]]

(Petitions). Various rail labor organizations (Labor Organizations) 
filed a single joint petition.\1\ State and local transportation 
departments and authorities (States) filed the three other petitions, 
one of which was a joint petition (State Joint Petition).\2\ The State 
Joint Petition requested that FRA stay the SSP final rule, and NCDOT 
specifically requested that FRA stay the rule while FRA was considering 
the petitions. All Petitions were available for public comment in the 
docket for the SSP rulemaking. On November 15, 2016, the Massachusetts 
Department of Transportation (MassDOT) submitted a comment supporting 
the State Joint Petition, also asking FRA to stay the SSP final rule. 
FRA did not receive any public comments opposing the States' requests 
for a stay.
---------------------------------------------------------------------------

    \1\ The labor organizations that filed the joint petition are: 
The American Train Dispatchers Association (ATDA), Brotherhood of 
Locomotive Engineers and Trainmen (BLET), Brotherhood of Maintenance 
of Way Employes Division (BMWED), the Brotherhood of Railroad 
Signalmen (BRS), Brotherhood Railway Carmen Division (TCU/IAM), and 
Transport Workers Union of America (TWU).
    \2\ The Capitol Corridor Joint Powers Authority (CCJPA), Indiana 
Department of Transportation (INDOT), Northern New England Passenger 
Rail Authority (NNEPRA), and San Joaquin Joint Powers Authority 
(SJJPA) filed a joint petition (Joint Petition). The North Carolina 
Department of Transportation (NCDOT) and State of Vermont Agency of 
Transportations (VTrans) each filed separate petitions.
---------------------------------------------------------------------------

    On October 30, 2017, FRA met with the Passenger Safety Working 
Group and the System Safety Task Group of the Railroad Safety Advisory 
Committee (RSAC) to discuss the Petitions and comments received in 
response to the Petitions.\3\ FRA specifically invited its state 
partners to this meeting, which was also open to the public. This 
meeting was necessary for FRA to receive input from industry and the 
public, and to discuss potential paths forward to respond to the 
Petitions prior to FRA taking final action. During the meeting, a 
representative from the Oregon Department of Transportation asked 
whether the SSP final rule would be further stayed pending FRA's 
development of a response to the Petitions and public input received at 
the meeting. An FRA representative indicated that he anticipated a 
further stay of the rule to provide time to resolve the issues raised 
by the petitions. None of the meeting participants expressed opposition 
to a further stay.\4\
---------------------------------------------------------------------------

    \3\ Attendees at the October 30, 2017, meeting included 
representatives from the following organizations: ADS System Safety 
Consulting, LLC; American Association of State Highway and 
Transportation Officials (AASHTO); American Public Transportation 
Association (APTA); American Short Line and Regional Railroad 
Association (ASLRRA); ATDA; Association of American Railroads (AAR); 
BLET; BMWED; BRS; CCJPA; The Fertilizer Institute; Gannett Fleming 
Transit and Rail Systems; International Brotherhood of Electrical 
Workers; Metropolitan Transportation Authority (MTA); National 
Railroad Passenger Corporation (Amtrak); National Transportation 
Safety Board (NTSB); NCDOT; NNEPRA; Politico; San Joaquin Regional 
Rail Commission/Altamont Corridor Express; Sheet Metal, Air, Rail, 
and Transportation Workers (SMART); United States Department of 
Transportation--Transportation Safety Institute. During the meeting, 
an attorney from Kaplan Kirsch & Rockwell, LLP representing AASHTO 
indicated he was authorized to speak on behalf of all the State 
petitioners.
    \4\ Once the RSAC meeting notes are finalized, FRA will place 
them in Docket ID FRA-2011-0060 at www.regulations.gov.
---------------------------------------------------------------------------

    Given the multiple requests for a continued stay of the rule, the 
comment received supporting a stay, the lack of opposition to a stay in 
either the comments or at the public RSAC meeting, and FRA's interest 
in addressing the issues raised in the State petitions prior to 
requiring full compliance with the SSP final rule, FRA is issuing this 
final rule extending the stay until December 4, 2018.

Regulatory Impact and Notices

Executive Orders 12866, 13563, and 13771 and DOT Regulatory Policies 
and Procedures

    This final rule is a non-significant regulatory action within the 
meaning of Executive Order 12866 and DOT policies and procedures. See 
44 FR 11034 (Feb. 26, 1979). The final rule follows the direction of 
Executive Order 13563 ``Improving Regulation and Regulatory Review'', 
which emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. Finally, 
the final rule also follows the guidance of Executive Order 13771 
``Reducing Regulation and Controlling Regulatory Costs'' (E.O. 13771), 
which directs agencies that ``for every one new regulation issued, at 
least two prior regulations be identified for elimination, and that the 
cost of planned regulations be prudently managed and controlled through 
a budgeting process.'' FRA identified this final rule as a deregulatory 
effort to comply with E.O. 13771. For more information on E.O. 13771, 
refer to Office of Management and Budget's April 5, 2017 publication 
``Memorandum: Implementing Executive Order 13771, titled `Reducing 
Regulation and Controlling Regulatory Costs.' ''
    In July 2016, FRA issued the System Safety Program final rule (2016 
Final Rule) as part of its efforts to continuously improve rail safety 
and to satisfy the statutory mandate in sections 103 and 109 of Rail 
Safety Improvement Act of 2008. The 2016 Final Rule requires passenger 
railroads to establish a program that systematically evaluates railroad 
safety risks and manages those risks with the goal of reducing the 
numbers and rates of railroad accidents, incidents, injuries, and 
fatalities. Paperwork requirements are the largest burden of the 2016 
Final Rule.
    FRA believes that the final rule, which will stay the requirements 
of the 2016 Final Rule until December 4, 2018, will reduce regulatory 
burden on the railroad industry. By staying the requirements of the 
2016 Final Rule, railroads will realize a cost savings. Railroads will 
not sustain any costs during the first year of this analysis. In 
addition, because the analysis discounts future costs and the final 
rule will move forward all costs by one-year, the present value cost of 
the final rule is lower as compared to the present value cost of the 
2016 Final Rule. FRA estimates this cost savings to be approximately 
$164,480, at a 3% discount rate, and $76,788, at a 7% discount rate. 
The following table shows 2016 Final Rule total cost, delayed one-year 
implementation date total costs (final rule total cost), and the cost 
savings from a one-year implementation date delay.

------------------------------------------------------------------------
                                                    Present     Present
                                                     value       value
                                                     (7%)        (3%)
------------------------------------------------------------------------
2016 Final rule, total cost.....................  $2,327,223  $3,412,649
Final rule, total cost..........................   2,250,435   3,248,169
                                                 -----------------------
  Cost savings from one-year delay..............      76,788     164,480
------------------------------------------------------------------------

Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., and 
E.O. 13272, 67 FR 53461 (Aug. 16, 2002), require agency review of 
proposed and final rules to assess their impact on small entities. An 
agency must prepare an initial regulatory flexibility analysis (IRFA) 
unless it determines and certifies that a rule, if promulgated, would 
not have a significant impact on a substantial number of small 
entities. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the FRA Administrator certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities.
    This final rule will affect passenger railroads, but will have a 
beneficial effect, lessening the burden on small railroads.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business

[[Page 56746]]

concern that is independently owned and operated, and is not dominant 
in its field of operation. The U.S. Small Business Administration (SBA) 
has authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a for profit ``linehaul railroad'' that has fewer 
than 1,500 employees, a ``short line railroad'' with fewer than 1,500 
employees, or a ``commuter rail system'' with annual receipts of less 
than $15.0 million dollars. See ``Size Eligibility Provisions and 
Standards,'' 13 CFR part 121, subpart A. Additionally, 5 U.S.C. 601(5) 
defines as ``small entities'' 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 statement of agency policy that formally establishes 
``small entities'' or ``small businesses'' as being 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, 
which is $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 68 FR 24891 (May 9, 2003), codified 
at Appendix C to 49 CFR part 209. The $20-million limit is based on the 
Surface Transportation Board's revenue threshold for a Class III 
railroad. Railroad revenue is adjusted for inflation by applying a 
revenue deflator formula in accordance with 49 CFR 1201.1-1. FRA is 
using this definition for this rulemaking.
    This final rule will apply to passenger railroads. Based on the 
definition of ``small entity,'' only two passenger railroads are 
considered small entities: Saratoga & North Creek Railway (SNC), and 
the Hawkeye Express (operated by the Iowa Northern Railway Company 
(IANR)). As the final rule is not significant, if it did impact these 
two small entities, this final rule would merely provide these entities 
with additional compliance time without introducing any additional 
burden.
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601(b), the 
Administrator of the FRA hereby certifies that this final rule will not 
have a significant impact on a substantial number of small entities. A 
substantial number of small entities may be impacted by this 
regulation; however, any impact on these entities will be minimal and 
positive.

Paperwork Reduction Act

    There are no new collection of information requirements contained 
in this final rule and, in accordance with the Paperwork Reduction Act 
of 1995, 44 U.S.C. 3501 et seq., an information collection submission 
to the Office of Management and Budget is not required. The record 
keeping and reporting requirements already contained in the SSP final 
rule were approved by the Office of Management and Budget on October 5, 
2016. The information collection requirements thereby became effective 
when they were approved by OMB. The OMB approval number is OMB No. 
2130-0599, and OMB approval expires on October 31, 2019.

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 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.
    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. FRA has determined 
that this rule does not 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. In addition, FRA has determined that this rule 
does not impose substantial direct compliance costs on State and local 
governments. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply.

International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards 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. This rulemaking is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.

Environmental Assessment

    FRA has evaluated this 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 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, which concern the promulgation 
of railroad safety rules and policy statements that do not result in 
significantly increased emissions of air or water pollutants or noise 
or increased traffic congestion in any mode of transportation. See 64 
FR 28547, May 26, 1999.
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this rule is 
not a major Federal action significantly affecting the quality of the 
human environment.

Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate

[[Page 56747]]

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.
    This written statement must detail the effect on State, local, and 
tribal governments and the private sector. For the year 2017, this 
monetary amount of $100,000,000 has been adjusted to $156,000,000 to 
account for inflation. This final rule would not result in such an 
expenditure, and thus preparation of such a statement is not required.

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355, May 22, 2001. Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates, or is expected to 
lead to the promulgation of, a final rule or regulation (including 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 in accordance with Executive Order 13211. 
FRA has determined that this rule will not have a significant adverse 
effect on the supply, distribution, or use of energy. Consequently, FRA 
has determined that this regulatory action is not a ``significant 
energy action'' within the meaning of Executive Order 13211.

Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

List of Subjects in 49 CFR Part 270

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

The Rule

0
In consideration of the foregoing, FRA extends the stay of the SSP 
final rule published August 12, 2016 (81 FR 53850) until December 4, 
2018.

    Authority:  49 U.S.C. 20103, 20106-20107, 20118-20119, 20156, 
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

    Issued in Washington, DC, on November 27, 2017.
Juan D. Reyes III,
Chief Counsel.
[FR Doc. 2017-25821 Filed 11-29-17; 8:45 am]
 BILLING CODE 4910-06-P