[Federal Register Volume 83, Number 136 (Monday, July 16, 2018)]
[Proposed Rules]
[Pages 32826-32829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14961]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 210

[Docket No. FRA-2017-0038]
RIN 2130-AC69


Railroad Noise Emission Compliance Regulations

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes to eliminate the requirement that certain 
locomotives display a badge or tag to demonstrate the railroad has 
certified the locomotives comply with noise emission standards. This 
proposed rule would reduce economic burdens on the rail industry by 
removing the badge or tag requirement.

DATES: 
    (1) Written comments must be received by September 14, 2018. 
Comments received after that date will be considered to the extent 
practicable.
    (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 August 15, 2018, one will be scheduled 
and FRA will publish a supplemental document 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-2017-0038 may be 
submitted by any of the following methods:
     Website: 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, W12-140, 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: Michael Watson, Industrial Hygienist, 
Office of Railroad Safety, Federal Railroad Administration, 1200 New 
Jersey Avenue SE, W38-224, Washington, DC 20590 (telephone 202-493-
1388), or Sam Gilbert, Trial Attorney, Office of Chief Counsel, Federal 
Railroad Administration, 1200 New Jersey Avenue SE, W31-228, 
Washington, DC 20590 (telephone 202-493-0270).

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    On January 30, 2017, the President issued Executive Order 13771, 
which requires, when an agency proposes a new significant regulation, 
it must identify at least two existing regulations to be repealed. FRA 
reviewed the Railroad Noise Emission Compliance Regulations in 49 CFR 
part 210 \1\ (``part 210'') and identified for potential elimination 
the requirement that railroads display a permanent badge or tag in the 
cabs of their locomotives certifying the locomotives comply with FRA's 
noise emission standards. FRA believes eliminating this requirement

[[Page 32827]]

would reduce economic burdens on the rail industry without adversely 
impacting compliance with part 210. Therefore, in this NPRM, FRA 
proposes to eliminate the badge or tag requirement.
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    \1\ Unless otherwise specified, all references to CFR sections 
and parts in this document refer to Title 49 of the CFR.
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    FRA estimates there would be no cost burden associated with this 
proposed rule. In fact, the elimination of the requirement to install a 
badge in locomotives would save most railroads both the labor to 
install the badge, and the cost of the badge itself. Over a 20-year 
period, FRA estimates $1,858,859 in cost savings would accrue--a 
present, discounted value of $1,053,564 (7% discount).

II. Background and Overview of the Proposal

    FRA regulations in part 210 limit the noise emitted by railroad 
locomotives, cars, and other equipment. FRA originally developed these 
regulations in consultation with the Environmental Protection Agency 
under the Noise Control Act of 1972 (86 Stat. 1234, Pub. L. 92-574) and 
FRA's general enforcement and inspection authority under the railroad 
safety statutes. See 41 FR 49183, 49183-84 (Nov. 8, 1976).
    Part 210 requires railroads to certify that locomotives built after 
December 31, 1979, comply with FRA's noise emission standards. Under 
section 210.27(d), railroads must attach a permanent badge or tag in 
the cab of the locomotive displaying the results of the certification 
test (including the method, date and location of the test, and the 
sound level reading obtained during the test).
    In 2014, the Association of American Railroads (AAR) requested FRA 
eliminate the requirement to display the certification of compliance 
with noise emission standards in the locomotive, in its comments on a 
separate proposed rule concerning stenciling requirements for window 
glazing. AAR Comment, November 25, 2014, Docket No. FRA-2012-0103. AAR 
noted that when FRA added section 210.27(d) in 1983, few locomotives 
had been tested and certified to comply with FRA's noise emission 
standards. AAR contended that instead of testing individual locomotives 
for compliance with the noise emission standards, railroads currently 
test locomotives by model. Documentation of that testing is maintained 
by the railroads as a usual and customary practice, and may be 
consulted if FRA has a doubt about whether a locomotive has been tested 
for compliance with part 210.
    FRA declined to eliminate the display requirement for noise 
certification at that time because it was beyond the scope of the 
window-glazing rulemaking. However, FRA said it would consider the 
merits of AAR's request and evaluate how to address the issue in the 
future. 81 FR 6775, 6778 (Feb. 9, 2016).
    FRA continually reviews and revises its regulations to ensure the 
regulatory burden on the rail industry is not excessive, clarify the 
application of existing requirements and remove requirements no longer 
necessary, and keep pace with emerging technology, changing operational 
realities and safety concerns. In addition, on January 30, 2017, the 
President issued Executive Order 13771 (Reducing Regulation and 
Controlling Regulatory Costs). Executive Order 13771 requires agencies 
to identify at least two existing regulations to repeal when they 
propose a new significant regulation. Because the badge or tag 
requirement is unnecessary for purposes of FRA enforcement of the noise 
testing requirements, FRA determined repealing section 210.27(d) would 
reduce the burden on the rail industry without adversely impacting 
FRA's ability to ensure compliance with part 210. Accordingly, FRA 
proposes to eliminate the requirement for locomotives to display a 
permanent badge or tag certifying compliance with noise emission 
standards.

III. Section-by-Section Analysis

    FRA seeks comments on all proposals made in this NPRM.

Section 210.27 New Locomotive Certification

    Section 210.27 requires railroads certify their locomotives comply 
with FRA's noise emission standards. Paragraph (a) requires railroads 
certify that locomotives built after December 31, 1979, comply with the 
noise emission standards. Paragraph (b) provides railroads must 
determine certification for each locomotive model by load cell testing 
or passby testing. Paragraph (c) states if railroads use passby 
testing, they should conduct the test with the locomotive operating at 
maximum rated horsepower output. Under paragraph (d), railroads must 
attach a permanent badge or tag in the cab of the locomotive to display 
the results of the certification test.
    FRA determined this badge or tag is no longer necessary, and the 
proposed rule would remove paragraph (d) in its entirety. Although 
railroads would no longer need to display a badge or tag in the 
locomotive cab, they would still need to test their locomotives and 
certify they comply with the noise emission standards, as required 
under section 210.27(a) through (c).

IV. Regulatory Impact and Notices

Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    FRA evaluated this proposed rule consistent with existing policies 
and procedures, and determined it to be non-significant under both 
Executive Orders 12866 and 13563 as well as DOT policies and procedures 
(44 FR 11034 (February 26, 1979)). The proposed rule is also consistent 
with Executive Order 13563, which emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. Finally, this proposed rule is expected to 
be an E.O. 13771 deregulatory action. Details on the estimated cost 
savings of this proposed rule can be found in the rule's economic 
analysis.
    FRA proposes to eliminate the requirement that locomotives display 
a permanent badge or tag to demonstrate they have been certified to 
comply with noise emission standards. (The permanent badge or tag will 
hereafter be referred to as a ``badge'' in this analysis.) A badge is 
typically a metal plate installed inside the cab of the locomotive. 
Most railroads would benefit from this proposed rule because a badge is 
currently required in all locomotives. Any railroad purchasing new 
locomotives would not be required to display a badge, therefore saving 
it money. Also, badges would no longer need to be replaced when 
locomotives are overhauled.
    FRA estimates there would be no cost burden associated with this 
proposed rule. The elimination of the requirement to install a badge in 
locomotives would save most railroads both the labor to install the 
badge, and the cost of the badge itself. Over a 20-year period, this 
analysis finds $1,858,859 in cost savings would accrue through the 
elimination of this requirement. The present, discounted value of these 
cost savings is $1,053,564 (7% discount). FRA has prepared and placed 
in the docket a regulatory analysis addressing the economic impact of 
this proposed rule. FRA requests comments on all aspects of the 
regulatory evaluation and its conclusions.

Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (RFA) (94 Stat. 1164, Pub. L. 96-
354), as amended, and codified as amended at 5 U.S.C. 601-612, and 
Executive Order 13272 (Proper Consideration of Small Entities in Agency 
Rulemaking), require agency review of proposed and final rules to 
assess their impact on ``small

[[Page 32828]]

entities'' for purposes of the RFA. An agency must prepare a regulatory 
flexibility analysis unless it determines and certifies a rule is not 
expected to have a significant economic impact on a substantial number 
of small entities. FRA expects this proposed rule would not have a 
significant economic impact on a substantial number of small entities.
    Federal agencies may adopt their own size standards for small 
entities, in consultation with the Small Business Administration and in 
conjunction with public comment. FRA published a final statement of 
agency policy that formally establishes ``small entities'' or ``small 
businesses'' as being railroads, contractors, and hazardous materials 
shippers with the revenue 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 49 CFR part 209, Appendix C. FRA is using this 
definition for this rulemaking.
    FRA estimates there are 704 Class III railroads, most of which 
would be affected by this proposed rule. Most Class III railroads do 
not purchase new locomotives; rather, they purchase used locomotives 
from Class I and Class II railroads. Therefore, any badges required 
would have already been installed by the larger railroad. If a small 
railroad did indeed purchase a new locomotive, however, they would save 
money because the badge would no longer be required. Small railroads 
would at all events benefit since they would not need to replace badges 
as they age or when locomotives are overhauled. Therefore, any impact 
on small railroads by this proposed regulation would likely be small 
and entirely beneficial.
    FRA invites comments from all interested parties concerning the 
potential economic impact on small entities resulting from this 
proposed rule. FRA will consider the comments and data it receives in 
determining the small entity impact for the final rule.

Paperwork Reduction Act

    The information collection requirements in this proposed rule are 
being submitted for approval to the Office of Management and Budget 
(OMB) for review and approval in accordance with 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 requirement are as follows:

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                                      Respondent         Total annual      Average time per      Total annual
           CFR section                 universe            responses           response          burden hours
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210.27(a)--New Locomotive         4 Manufacturers...  4 requests........  30 minutes........  2 hours.
 Certification--Request to
 Manufacturer for Certification.
210.27(d)--New Locomotive         4 Manufacturers...  790 badges........  30 minutes........  minus 395 hours
 Certification--Identification                                                                 (Previously
 of Certified Locomotive by                                                                    Approved Burden
 Badge Plate (Proposed                                                                         by OMB).
 Rescission of Provision).
210.31--Recorded Measurements of  4 Manufacturers...  745 forms/records.  3 hours...........  2,235 hours.
 Locomotive Noise Emission Test.
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    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 Collection Clearance 
Officer, Office of Railroad Safety, Federal Railroad Administration, at 
202-493-6292, or Ms. Kimberly Toone, Information Collection Clearance 
Officer, Office of Railroad Administration, Federal Railroad 
Administration, at 202-493-6139.
    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 email to Mr. Brogan at [email protected], or to Ms. 
Toone at [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 publication of this document 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 current OMB control number for this information collection is OMB 
No. 2130-0527.

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 
(Federalism), agencies 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

[[Page 32829]]

governments, or the agency consults with State and local government 
officials early in the process of developing the regulation.
    This proposed rule has been analyzed consistent with the principles 
and criteria in Executive Order 13132. This proposed rule would not 
have a substantial effect on the States or their political 
subdivisions; it would not impose any substantial direct compliance 
costs; and it would not affect the relationships between the Federal 
government and the States or their political subdivisions, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply.
    However, this proposed rule could have preemptive effect under 
certain provisions of the Federal railroad safety statutes, 
specifically the former Federal Railroad Safety Act of 1970 (former 
FRSA), repealed and re-codified at 49 U.S.C. 20106, and the former 
Locomotive Boiler Inspection Act (LIA) at 45 U.S.C. 22-34, repealed and 
re-codified at 49 U.S.C. 20701-03. The former FRSA 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 hazard'' exception to section 
20106. Moreover, the U.S. Supreme Court has held the former LIA 
preempts the field concerning locomotive safety. See Napier v. Atl. 
Coast Line R.R., 272 U.S. 605 (1926) and Kurns v. R.R. Friction Prods. 
Corp., 565 U.S. 625 (2012). Therefore, if this proposed rule were 
adopted, it is possible States would be preempted from requiring that 
locomotives display a permanent badge or tag certifying the locomotive 
complies with FRA's noise emission standards.

Environmental Impact

    FRA has evaluated this proposed regulation consistent 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 this proposed regulation is not a major FRA action 
(requiring the preparation of an environmental impact statement or 
environmental assessment) because it is categorically excluded from 
detailed environmental review pursuant to section 4(c)(20) of FRA's 
Procedures. 64 FR 28547-48.
    Under section 4(c) and (e) of FRA's Procedures, the agency has 
further concluded no extraordinary circumstances exist with respect to 
this regulation that might trigger the need for a more detailed 
environmental review. Consequently, FRA finds this proposed regulation 
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, 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 promulgation of any rule that 
includes any Federal mandate that may result in the 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. The proposed rule would 
not result in the expenditure, in the aggregate, of $100,000,000 or 
more in any one year (adjusted annually for inflation), and thus 
preparation of such a statement is not required.

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, to www.regulations.gov, as described in the 
system of records notice, DOT/ALL-14 FDMS, accessible through 
www.dot.gov/privacy. In order to facilitate comment tracking and 
response, we encourage commenters to provide their name, or the name of 
their organization; however, submission of names is completely 
optional. Whether or not commenters identify themselves, all timely 
comments will be fully considered. If you wish to provide comments 
containing proprietary or confidential information, please contact the 
agency for alternate submission instructions.

List of Subjects in 49 CFR Part 210

    Noise control.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
part 210 of chapter II, subtitle B of title 49, Code of Federal 
Regulations, as follows:

0
1. The authority citation for part 210 is revised to read as follows:

    Authority:  Sec. 17, Pub. L. 92-574, 86 Stat. 1234 (42 U.S.C. 
4916); 49 CFR 1.89.


Sec.  210.27   [Amended]

0
2. Amend Sec.  210.27 by removing paragraph (d).


    Issued in Washington, DC.
Ronald Louis Batory,
Administrator.
[FR Doc. 2018-14961 Filed 7-13-18; 8:45 am]
 BILLING CODE 4910-06-P