[Federal Register Volume 83, Number 235 (Friday, December 7, 2018)]
[Rules and Regulations]
[Pages 63106-63109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26447]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 270

[Docket No. FRA-2011-0060, Notice No. 9]
RIN 2130-AC79


System Safety Program

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

ACTION: Final rule; stay of regulations.

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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. 
FRA has stayed the SSP final rule's requirements until December 4, 
2018. FRA is issuing this final rule to extend that stay until 
September 4, 2019.

DATES: Effective December 4, 2018, the stay of 49 CFR part 270 is 
extended until September 4, 2019.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments received, go to http://www.regulations.gov and 
follow the online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Elizabeth A. Gross, 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, December 4, 2017, and then December 4, 2018. See 82 FR 14476 
(Mar. 21, 2017); 82 FR 23150 (May 22, 2017); 82 FR 26359 (June 7, 
2017); and 82 FR 56744 (Nov. 30, 2017).\1\ In that November 2017 
document, FRA stated that the 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 on August 14, 2017, for information a 
railroad compiles or collects after that date solely for SSP purposes.
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    \1\ FRA notes it inadvertently published two notifications in 
the Federal Register identified as Notice No. 6 for this docket. See 
82 FR 23150 (May 22, 2017), Docket No. FRA-2011-0060-0043; and 82 FR 
26359 (June 7, 2017), Docket No. FRA-2011-0060-0044. Before 
identifying the duplication, FRA published a subsequent Notice No. 
7. See 82 FR 56744 (Nov. 30, 2017), Docket No. FRA-2011-0060-0047. 
FRA is numbering this document as Notice No. 9, to reflect that it 
is actually the ninth notification published for this docket.
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    FRA's review included petitions for reconsideration of the SSP 
final rule (Petitions). Various rail labor organizations (Labor 
Organizations) filed a single joint petition.\2\ State and local 
transportation departments and authorities (States) filed the three 
other petitions, one of which was a joint petition (State Joint 
Petition).\3\ 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

[[Page 63107]]

petitions. All Petitions were available for public comment in the 
docket for the SSP rulemaking. On November 15, 2016, the Massachusetts 
Department of Transportation 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.
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    \2\ 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).
    \3\ 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.
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    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.\4\ 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. See generally FRA-2011-0060-0046.
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    \4\ 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; San Joaquin Regional Rail 
Commission/Altamont Corridor Express; Sheet Metal, Air, Rail, and 
Transportation Workers (SMART); and 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.
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    In response to draft rule text FRA presented for discussion during 
the RSAC meeting, the States indicated they would need an extended 
caucus to discuss. On March 16, 2018, the Executive Committee of the 
States for Passenger Rail Coalition (SPRC) \5\ provided, and FRA 
uploaded to the rulemaking docket, proposed revisions to the draft rule 
text. See FRA-2011-0060-0050. FRA is reviewing and considering these 
suggested revisions in formulating its response to the petitions for 
reconsideration.
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    \5\ SPRC's website indicates it is an ``alliance of State and 
Regional Transportation Officials,'' and each state petitioner 
appears to be an SPRC member. See https://www.s4prc.org/state-programs.
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    Given the request 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 through notice and 
comment rulemaking prior to requiring full compliance with the SSP 
final rule, FRA finds notice and comment for this stay to be 
impracticable and incompatible with the forthcoming NPRM.

Regulatory Impact and Notices

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

    This final rule is a non-significant deregulatory action within the 
meaning of Executive Order 12866 and DOT policies and procedures. See 
44 FR 11034 (Feb. 26, 1979. The final rule is considered an E.O. 13771 
deregulatory action. Details on the estimated cost savings are below.
    In August 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 
the 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 number and rates of railroad accidents, incidents, 
injuries, and fatalities. Paperwork requirements are the largest burden 
of the 2016 Final Rule.
    FRA believes that this final rule, which will stay the requirements 
of the 2016 Final Rule until September 4, 2019, will reduce regulatory 
burden on the railroad industry. By staying the requirements of the 
2016 Final Rule, railroads will realize a cost savings as railroads 
will not sustain any costs during the first nine months of this 
analysis. In addition, because this analysis discounts future costs and 
this final rule will move forward all costs by nine months, the present 
value costs of this stay will lower the present value cost of the SSP 
rulemaking. FRA estimates this cost savings to be approximately 
$255,928, at a 3-percent discount rate, and $246,360, at a 7-percent 
discount rate. The following table shows the 2016 Final Rule's total 
cost, delayed an additional nine months past the 2017 stay extension, 
the implementation date total costs, and the cost savings from the 
additional nine-month implementation date delay.

------------------------------------------------------------------------
                                                    Present     Present
                                                     value       value
                                                     (7%)        (3%)
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2016 Final Rule, total cost.....................  $2,327,223  $3,412,649
Cost savings from nine-month delay..............     246,360     255,928
2016 Final Rule, total cost with cost savings      2,080,863   3,156,721
 from nine-month delay..........................
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Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., and 
Executive Order 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 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 any small railroad.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business 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

[[Page 63108]]

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.
    For purposes of this analysis, this final rule will apply to 30 
commuter or other short-haul passenger railroads and two intercity 
passenger railroads, the National Railroad Passenger Corporation 
(Amtrak) and the Alaska Railroad Corporation (ARC). Neither is 
considered a small entity. Amtrak serves populations well in excess of 
50,000, and the ARC is owned by the State of Alaska, which has a 
population well in excess of 50,000.
    Based on the definition of ``small entity,'' only one passenger 
railroad is considered a small entity: The Hawkeye Express (operated by 
the Iowa Northern Railway Company). As the final rule is not 
significant, this final rule will merely provide this entity with 
additional compliance time without introducing any additional burden.
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601(b), the 
FRA Administrator 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 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 (OMB) is not required. The 
record keeping and reporting requirements already contained in the SSP 
final rule were approved by OMB 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.

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. 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 
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 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). FRA has evaluated this rule in accordance with 
Executive Order 13211 and has determined that this regulatory action is 
not a ``significant energy action'' within the meaning of Executive 
Order 13211.
    Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth,'' requires Federal agencies to review regulations to determine 
whether they potentially burden the development or use of domestically 
produced energy resources, with particular attention to oil, natural 
gas, coal, and nuclear energy resources. See 82 FR 16093 (Mar. 31, 
2017). FRA determined this regulatory action will not burden the 
development or use of

[[Page 63109]]

domestically produced energy resources.

List of Subjects in 49 CFR Part 270

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

    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.
Mathew M. Sturges,
Deputy Administrator.

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 September 4, 
2019.

[FR Doc. 2018-26447 Filed 12-4-18; 8:45 am]
BILLING CODE 4910-06-P