[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Rules and Regulations]
[Pages 45683-45686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18789]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 270
[Docket No. FRA-2011-0060, Notice No. 11]
RIN 2130-AC81
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 September 4,
2019. FRA is issuing this final rule to extend that stay until March 4,
2020.
DATES: Effective August 29, 2019, 49 CFR part 270, stayed February 13,
2017, at 82 FR 10443, and further stayed March 21, 2017, at 82 FR
14476, May 22, 2017, at 82 FR 23150, June 7, 2017, at 82 FR 26359,
November 30, 2017, at 82 FR 56744, and December 7, 2018, at 83 FR
63106, is further stayed until March 4, 2020.
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, December 4, 2018, and then September 4, 2019.
See 82 FR 14476 (Mar. 21, 2017); 82 FR 23150 (May 22, 2017); 82 FR
26359 (June 7, 2017); 82 FR
[[Page 45684]]
56744 (Nov. 30, 2017), and 83 FR 63106 (Dec. 7, 2018). The provisions
in part 270 were adopted on August 12, 2016, for the purposes of 49
U.S.C. 20119(b). That adoption was unaffected by the subsequent stays.
FRA's review included petitions for reconsideration of the SSP
final rule (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.
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\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.
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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.\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. See generally FRA-2011-0060-0046.
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\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; 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.
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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) \4\ provided, and FRA
uploaded to the rulemaking docket, proposed revisions to the draft rule
text. See FRA-2011-0060-0050. FRA reviewed and considered these
suggested revisions in formulating its proposed response to the
petitions for reconsideration.
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\4\ 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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On June 12, 2019, FRA published a notice of proposed rulemaking
(NPRM) that proposed certain amendments responding to the petitions for
reconsideration. See 84 FR 27215 (June 12, 2019). In the NPRM, FRA
specifically requested public comment on a proposed stay extension to
allow FRA time to review any comments on the NPRM and issue a final
rule. Id. at 27216. The deadline for submitting written comments on the
NPRM was August 12, 2019.
FRA received thirteen comments in response to the NPRM.\5\ Comments
from NCDOT, MassDOT, and CTDOT supported extending the stay, with NCDOT
specifically requesting that FRA stay implementation of the rule until
``all applicable administrative and judicial processes are completed.''
FRA received one comment objecting to extending the stay from Amtrak,
which urged FRA to lift the stay and implement the rule immediately. No
other commenters responded to FRA's request for comment on a proposed
stay extension.
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\5\ Comments were submitted by AAR, Amtrak, APTA, CCJPA (jointly
with INDOT, Los Angeles-San Diego-San Luis Obispo Rail Corridor
Agency, and SJJPA), the Connecticut Department of Transportation
(CTDOT), MassDOT, Massachusetts Bay Transportation Authority, NCDOT,
NNEPRA (jointly with the State of Maine Department of
Transportation), SPRC, VTrans, Washington Department of
Transportation, and one individual.
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FRA has considered Amtrak's comment opposing extension of the stay
in light of Amtrak's central role in the Nation's passenger rail
system. Nevertheless, given the number of comments received in response
to the SSP NPRM, the importance of the issues discussed therein, the
lack of opposition to the stay from all commenters except Amtrak, and
FRA's interest in addressing the issues raised in the petitions through
notice and comment rulemaking prior to requiring full compliance with
the SSP final rule, FRA believes it appropriate to extend the stay of
the rule an additional six months until March 4, 2020. Extending the
stay should provide FRA adequate time to review comments responding to
NPRM and to issue a final rule in that proceeding.
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 Executive
Order 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 March 4, 2020, 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 six months of this
analysis. In addition, because this analysis discounts future costs and
this final rule will move forward all costs by six months, the present
value costs of this stay will lower the present value cost of the SSP
rulemaking. FRA
[[Page 45685]]
estimates this cost savings to be approximately $170,618, at a 3-
percent discount rate, and $164,240, at a 7-percent discount rate. The
following table shows the 2016 Final Rule's total cost, delayed an
additional six months past the 2019 stay extension, the implementation
date total costs, and the cost savings from the additional six-month
implementation date delay.
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Present value Present value
(7%) (3%)
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2016 Final Rule, total cost....... $2,327,223 $3,412,649
Cost savings from six-month delay. 164,240 170,618
2016 Final Rule, total cost with 2,162,983 3,242,031
cost savings from six-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 economic 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 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 31
commuter or other short-haul passenger railroads and two intercity
passenger railroads, 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 economic 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
[[Page 45686]]
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 domestically produced energy resources.
List of Subjects in 49 CFR Part 270
Penalties, Railroad safety, Reporting and recordkeeping
requirements, System safety.
The Rule
In consideration of the foregoing, FRA extends the stay of the SSP
final rule published August 12, 2016 (81 FR 53850) until March 4, 2020.
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.
Ronald Louis Batory,
Administrator.
[FR Doc. 2019-18789 Filed 8-29-19; 8:45 am]
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