[Federal Register Volume 84, Number 72 (Monday, April 15, 2019)]
[Rules and Regulations]
[Pages 15142-15145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07389]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 210

[Docket No. FRA-2017-0038, Notice No. 2]
RIN 2130-AC69


Railroad Noise Emission Compliance Regulations

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

ACTION: Final rule.

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SUMMARY: In this final rule, FRA is eliminating the requirement that 
certain locomotives display a badge or tag to demonstrate the railroad 
has certified the locomotives comply with noise emission standards. 
This final rule reduces economic burdens on the rail industry by 
removing this badge or tag requirement.

DATES: This final rule is effective April 15, 2019.

ADDRESSES: 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, 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 repeal. 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 
locomotive noise emission standards. Eliminating this requirement will 
reduce economic burdens on the rail industry without adversely 
impacting compliance with the standards. Therefore, in this final rule, 
FRA eliminates the badge or tag requirement. FRA is making this rule 
effective upon its publication, as this rule relieves a regulatory 
burden, consistent with 5 U.S.C. 553(d)(1).
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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 will be no cost burden associated with this 
final rule. In fact, the elimination of the requirement to install a 
badge or tag in locomotives will save railroads the cost of labor to 
install the badge or tag, and the cost of the badge or tag itself. Over 
a 20-year period, FRA estimates railroads will accrue a net present 
value of $1 million using a 7 percent discount rate.

II. Background and History

    Pursuant to the Noise Control Act of 1972 (86 Stat. 1234, Pub. L. 
92-574), the Environmental Protection Agency (EPA)

[[Page 15143]]

promulgated standards in 40 CFR part 201 to limit the noise emitted by 
railroad locomotives, cars, and other equipment. In consultation with 
EPA, FRA developed regulations in 49 CFR part 210 to ensure compliance 
with the noise emission standards. See 41 FR 49183, 49183-84 (Nov. 8, 
1976).
    Part 210 requires railroads to certify that locomotives built after 
December 31, 1979, comply with locomotive noise emission standards. 
Under Sec.  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 locomotive noise emission regulations 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 Sec.  210.27(d) in 1983, few 
locomotives had been tested and certified to comply with the noise 
emission standards. AAR contended that instead of testing individual 
locomotives for compliance with the noise emission standards, railroads 
currently test locomotives by model. Locomotives are built to the 
manufacturer's written specifications and those written specifications 
detail the technical features of a locomotive's particular model, 
including its certification under Sec.  210.27. 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 locomotive noise 
emission regulations.
    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), which 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 FRA enforcement of the noise testing requirements, FRA 
determined repealing Sec.  210.27(d) would reduce the burden on the 
rail industry without adversely impacting FRA's ability to ensure 
compliance with locomotive noise emission regulations. Accordingly, on 
July 16, 2018 (83 FR 32826), FRA published a notice of proposed 
rulemaking (NPRM) proposing to eliminate the requirement for 
locomotives to display a permanent badge or tag certifying compliance 
with noise emission standards.

III. Discussion of Comments

    The NPRM solicited written comments from the public under the 
Administrative Procedure Act (5 U.S.C. 553). By the close of the 
comment period on September 14, 2018, FRA received one comment, a joint 
comment from AAR and the American Short Line and Regional Railroad 
Association (ASLRRA).
    In the comment, AAR and ASLRRA stated railroads have been 
advocating for the removal of the certification display requirement 
since 2011. AAR and ASLRRA explained the certification display 
requirement is no longer necessary because the overwhelming majority of 
locomotives have already been tested by the manufacturers on a model-
by-model basis. Accordingly, AAR and ASLRRA supported the NPRM's 
proposal to eliminate the certification display requirement.
    FRA received no public comments conveying a need to change the 
scope or substance of the proposed rule. Therefore, in this final rule 
FRA eliminates the requirement for locomotives to display a permanent 
badge or tag certifying compliance with noise emission standards.

IV. Section-by-Section Analysis

Section 210.27 New Locomotive Certification

    Section 210.27 requires railroads to certify that their locomotives 
comply with noise emission standards. Specifically, paragraph (a) 
requires railroads to 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 permanent badge or tag is no longer necessary, 
and this final rule removes paragraph (d) in its entirety. FRA notes 
although railroads no longer need to display a badge or tag in the 
locomotive cab, the locomotives still need to be tested and certified 
to comply with the noise emission standards, as required under 
paragraphs (a) through (c) of this section.

V. Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    FRA evaluated this final rule consistent with existing policies and 
procedures, and determined it to be non-significant under Executive 
Order 12866 as well as DOT policies and procedures (44 FR 11034 
(February 26, 1979)). This final rule is considered an Executive Order 
13771 deregulatory action. Details on the estimated cost savings of the 
rule can be found in the rule's economic analysis.
    FRA is eliminating 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. 
Railroads will benefit from this final rule because a badge had been 
required in all locomotives. Any railroad purchasing new locomotives 
will not be required to display a badge, therefore saving it money. 
Also, badges will no longer need to be replaced when locomotives are 
overhauled.
    FRA estimates there will be no cost burden associated with this 
final rule. The elimination of the requirement to install a badge in 
locomotives will save railroads the cost of labor to install the badge, 
and the cost of the badge itself. Over a 20-year period, this analysis 
finds $1 million in present value cost savings, estimated using a 7 
percent discount rate. FRA has prepared and placed in the docket a 
regulatory analysis addressing the economic impact of this rule.

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

[[Page 15144]]

13272 (Proper Consideration of Small Entities in Agency Rulemaking), 
require agency review of proposed and final rules to assess their 
impact on ``small 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 has determined this 
final rule will 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 designates ``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 will 
be affected by this final 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 will 
have already been installed when obtained from the larger railroad. If 
a small railroad did purchase a new locomotive, however, they would 
save money because the badge would no longer be required. Small 
railroads will also benefit since they will not need to replace badges 
as they age or when locomotives are overhauled. Therefore, any impact 
on small railroads by this final regulation will likely be small and 
entirely beneficial. Thus, pursuant to the RFA, 5 U.S.C. 601(b), the 
FRA Administrator hereby certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

    The information collection requirements in this final rule are 
being submitted 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 (Rescission of                                                                    by OMB).
 Provision).
210.31--Recorded Measurements of  4 Manufacturers...  745 forms/records.  3 hours...........  2,235 hours.
 Locomotive Noise Emission Test.
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    Total.......................  4 Manufacturers...  749 responses.....  2.987 hours.......  2,237 hours
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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.
    For information or a copy of the paperwork package submitted to 
OMB, contact Mr. Robert Brogan, Information Collection Clearance 
Officer, Office of Railroad Safety, FRA, at 202-493-6292, or Ms. 
Kimberly Toone, Information Collection Clearance Officer, Office of 
Information Technology, FRA, at 202-493-6132.
    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 final 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.
    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 governments, or the agency consults with State and local 
government officials early in the process of developing the regulation.
    FRA analyzed this final rule consistent with the principles and 
criteria in Executive Order 13132. FRA determined the final rule will 
not have substantial direct effects on States, on the relationship 
between the national government and States, or on the distribution of 
power and responsibilities among the various levels of government. In 
addition, FRA determined this final rule will not impose substantial 
direct compliance costs on State and local governments.

[[Page 15145]]

Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply.
    However, this final 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, it is possible States could be preempted from requiring that 
locomotives display a permanent badge or tag certifying the locomotive 
complies with noise emission standards.

Environmental Impact

    FRA has evaluated this final rule 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 
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 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 final 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, 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. This final rule will 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.

List of Subjects in 49 CFR Part 210

    Noise control.

The Rule

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

PART 210--RAILROAD NOISE EMISSION COMPLIANCE REGULATIONS

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 L. Batory,
Administrator.
[FR Doc. 2019-07389 Filed 4-12-19; 8:45 am]
 BILLING CODE 4910-06-P