[Federal Register Volume 83, Number 87 (Friday, May 4, 2018)]
[Rules and Regulations]
[Page 19647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09558]


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SURFACE TRANSPORTATION BOARD

49 CFR Part 1040

[Docket No. EP 726]


On-Time Performance Under Section 213 of The Passenger Rail 
Investment and Improvement Act of 2008

AGENCY: Surface Transportation Board.

ACTION: Final rule.

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SUMMARY: The Surface Transportation Board (Board) is removing its final 
rule concerning on-time performance of intercity passenger rail service 
because it was invalidated upon judicial review.

DATE: This final rule is effective May 4, 2018.

FOR FURTHER INFORMATION CONTACT: Scott M. Zimmerman: (202) 245-0386. 
Federal Information Relay Service (FIRS) for the hearing impaired: 
(800) 877-8339.

SUPPLEMENTARY INFORMATION: On May 15, 2015, the Board instituted a 
rulemaking proceeding in this docket to define ``on-time performance'' 
for intercity passenger trains for purposes of Section 213 of the 
Passenger Rail Investment and Improvement Act of 2008 (PRIIA), 49 
U.S.C. 24308(f). See 80 FR 28928. The Board adopted its final rule in 
49 CFR part 1040 on July 28, 2016, and the rule took effect on August 
27, 2016. See 81 FR 51343.
    Petitions for judicial review of the final rule were filed in the 
U.S. Courts of Appeals for the Eighth Circuit and the District of 
Columbia Circuit, and were ultimately consolidated in the Eighth 
Circuit. The Court of Appeals found that the Board lacked authority to 
promulgate a final rule defining on-time performance under PRIIA and 
vacated the Board's rule. See Union Pac. R.R. v. Surface Transp. Bd., 
863 F.3d 816 (8th Cir. 2017). The National Railroad Passenger 
Corporation (Amtrak) and certain passenger organizations filed 
petitions for certiorari with the U.S. Supreme Court, which declined to 
review the Eighth Circuit's ruling.
    The Board's rule is therefore invalid and 49 CFR part 1040 will be 
removed. Because this action is based on a final court determination 
that the rule being eliminated is invalid, the Board finds good cause 
to dispense with notice and comment under the Administrative Procedure 
Act (APA). See 5 U.S.C. 553(b)(B).
    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612, 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Because the Board has determined that notice and comment are not 
required under the APA for this rulemaking, the requirements of the RFA 
do not apply.
    This final rule does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501-3521.

List of Subjects in 49 CFR Part 1040

    Mass transportation, Railroads.

    It is ordered:
    1. Part 1040 is removed and notice will be published in the Federal 
Register.
    2. This decision is effective on May 4, 2018.

    Decided: April 30, 2018.

    By the Board, Board Members Begeman and Miller.
Jeffrey Herzig,
Clearance Clerk.

PART 1040 [REMOVED AND RESERVED]

0
For the reasons set forth in the preamble, and under the authority of 
49 U.S.C. 1321(a), the Surface Transportation Board removes and 
reserves 49 CFR part 1040.

[FR Doc. 2018-09558 Filed 5-3-18; 8:45 am]
 BILLING CODE 4915-01-P