81 FR 40624 - Competitive Passenger Rail Service Pilot Program
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration Federal Register Volume 81, Issue 120 (June 22, 2016)
Federal Railroad Administration
Federal Register Volume 81, Issue 120 (June 22, 2016)
| Page Range | 40624-40631 | |
| FR Document | 2016-14698 |
[Federal Register Volume 81, Number 120 (Wednesday, June 22, 2016)] [Proposed Rules] [Pages 40624-40631] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-14698] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 269 [Docket No. FRA-2016-0023; Notice No. 1] RIN 2130-AC60 Competitive Passenger Rail Service Pilot Program AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: FRA proposes regulations to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes operated by Amtrak. The proposed rule would develop this pilot program as required by a statutory mandate. DATES: Written Comments: Written comments on the proposed rule must be received by August 22, 2016. FRA will consider comments received after that date if practicable. Hearing Request: FRA anticipates resolving this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to July 22, 2016, then FRA will schedule such a hearing and FRA will publish a supplemental notice in the Federal Register to inform interested parties of the date, time, and location of any such hearing. ADDRESSES: Comments: Comments related to Docket Number FRA-2016-0023 may be submitted by any of the following methods:Online: Comments should be filed at the Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting comments. Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE., W12-140, Washington, DC 20590. Hand Delivery: Room W12-140 on the Ground level of the West Building, [[Page 40625]] 1200 New Jersey Ave. SE., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Fax: 202-493-2251. Instructions: All submissions must include the agency name, docket name and docket number or Regulatory Identification Number (RIN) for this rulemaking (RIN 2130-AC60). Note that FRA will post all comments received without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading in the ``Supplemental Information'' section of this document for Privacy Act information related to any submitted petitions 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 the U.S. Department of Transportation, Docket Operations, M-30, West Building, Ground Floor, room W12-140, 1200 New Jersey Ave. SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: Brandon White, Office of Railroad Policy and Development, FRA, 1200 New Jersey Ave. SE., Washington, DC 20590, (202) 493-1327, or Zeb Schorr, Office of Chief Counsel, FRA, 1200 New Jersey Ave. SE., Mail Stop 10, Washington, DC 20590, (202) 493-6072. SUPPLEMENTARY INFORMATION: I. Notice of Proposed Rulemaking A. Statutory Background The proposed rule is in response to a statutory mandate-- specifically, section 11307 of the Fixing America's Surface Transportation (FAST) Act, Public Law 114-94, sec. 11307, 129 Stat. 1312, 1660-1664 (2015). Section 11307 states that the Secretary of Transportation (Secretary) must promulgate a rule to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes, as defined in 49 U.S.C. 24102 and operated by Amtrak on the date the Passenger Rail Reform and Investment Act of 2015 (title XI of the FAST Act) was enacted. Section 11307 also provides for, among other things, the following: (1) Establishment of a petition, notification, and bid process through which the Secretary would evaluate bids to provide passenger rail service over particular long-distance routes by interested eligible petitioners and Amtrak; (2) The Secretary's selection of a winning bidder; (3) The Secretary's execution of a contract with the winning bidder awarding the right and obligation to provide intercity passenger rail service over the route, along with an operating subsidy, subject to such performance standards as the Secretary may require; (4) Amtrak must provide access to the Amtrak-owned reservation system, stations, and facilities to a winning bidder; (5) Employees used in the operation of a route under the pilot program would be considered an employee of that eligible petitioner and would be subject to the applicable Federal laws and regulations governing similar crafts or classes of employees of Amtrak; (6) The winning bidder must provide hiring preference to displaced qualified Amtrak employees; (7) The winning bidder would be subject to 49 U.S.C. 24405 grant conditions; and (8) If a winning bidder ceases to operate the service, or to otherwise fulfill their obligations, the Secretary, in collaboration with the Surface Transportation Board, would take any necessary action consistent with the FAST Act to enforce the contract and to ensure the continued provision of service. B. Timeline Established by the Proposed Rule The proposed rule would establish deadlines for filing petitions, filing bids, and FRA's execution of contract(s) with any winning bidders. As to the filing of petitions, Sec. 269.7(b) of the proposed rule would require a petition to be filed with FRA no later than 60 days after publication of the final rule implementing the pilot program. Section 269.9(a) would then require the FRA to publish in the Federal Register a notice of receipt of a petition not later than 30 days after the date of receipt. As to the filing of bids, proposed Sec. 269.9(b) would require both the petitioner and Amtrak, if Amtrak chose to do so, to submit complete bids to provide intercity passenger rail transportation over the applicable route with FRA not later than 120 days after FRA publishes a notice of receipt in the Federal Register under Sec. 269.9(a). Proposed Sec. 269.9(b) articulates the bid requirements. Lastly, as to the award and execution of contracts with winning bidders (who are or do not include Amtrak), proposed Sec. 269.13 would require FRA to execute a contract with a winning bidder not later than 270 days after the bid deadline established by proposed Sec. 269.9. C. Operating Subsidy Section 11307 of the FAST Act requires the Secretary to award an operating subsidy to a winning bidder that is not or does not include Amtrak. 49 U.S.C. 24711(b)(1)(E)(ii). Specifically, the operating subsidy, as determined by the Secretary, would be for the first year at a level that does not exceed 90 percent of the level in effect for that specific route during the fiscal year preceding the fiscal year the petition was received, adjusted for inflation, and any subsequent years under the same calculation, adjusted for inflation. To determine the operating subsidy amount, FRA would take the fully-allocated costs of the route, as operated by Amtrak in the prior fiscal year, including direct route costs, shared route costs, and indirect costs, into consideration so that the operating subsidy award would not result in an increase in the Federal subsidy of intercity passenger rail. In addition, as section 11307 of the FAST Act requires, FRA would provide to Amtrak an appropriate portion of the applicable appropriations to cover any cost directly attributable to termination of Amtrak service on the route and any indirect costs to Amtrak imposed on other Amtrak routes as a result of losing service on the route operated by the winning bidder. Any amount FRA provides to Amtrak under the prior sentence would not be deducted from, or have any effect on, the operating subsidy 49 U.S.C. 24711(b)(1)(E)(ii) requires. The FAST Act also authorizes the Secretary to fund the operating subsidy by withholding such sums as are necessary from the amount appropriated to the Secretary for the use of Amtrak for activities associated with Amtrak's National Network. FAST Act, section 11101(e), 129 Stat. at 1623. However, if Congress does not appropriate funds that allow the Secretary to pay an operating subsidy, then the Secretary cannot award an operating subsidy to a winning bidder other than Amtrak as required by the FAST Act. Consequently, this pilot program proposes to make the award of any operating subsidy to a winning bidder that is not or does not include Amtrak, subject to the availability of funding. Accordingly, the Secretary's contract with a winning bidder that is not or does not include Amtrak would not award an operating subsidy unless the award is consistent with the FAST Act and the applicable appropriations act. In addition, the Secretary would award the [[Page 40626]] operating subsidy to the winning bidder annually and, again, only consistent with the FAST Act and the applicable appropriations act (i.e., the Secretary would not award all four years of the operating subsidy at one time). II. Section-by-Section Analysis Section 269.1 Purpose This section provides that the proposed rule would carry out the statutory mandate in 49 U.S.C. 24711 requiring FRA, on behalf of the Secretary, to implement a pilot program to competitively select eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes, as defined in 49 U.S.C. 24102, and operated by Amtrak on the date of enactment of the FAST Act. Section 269.3 Application Paragraph (a) of this section provides that the proposed pilot program would not be made available to more than three Amtrak long- distance routes, as defined in 49 U.S.C. 24102. This proposed paragraph is based on the FAST Act directive in 49 U.S.C. 24711(a). Paragraph (b) of this section proposes that any eligible petitioner awarded a contract to provide passenger rail service under the pilot program could only provide such service for a period not to exceed four years from the date the winning bidder commenced service and, at FRA's discretion on behalf of the Secretary, FRA could renew such service for one additional operation period of four years. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(A). Section 269.5 Definitions This section contains the definitions FRA proposes to use in this rule for the following terms: Act; Administrator; Amtrak; Eligible petitioner; File and Filed; Financial plan; FRA; Operating plan; and Long-distance route. This section proposes to define ``financial plan'' to mean a plan that contains, for each Federal fiscal year fully or partially covered by the bid: an annual projection of the revenues, expenses, capital expenditure requirements, and cash flows (from operating activities, investing activities, and financing activities, showing sources and uses of funds) attributable to the route; and a statement of the assumptions underlying the financial plan's contents. In addition, this proposed section defines ``operating plan'' to mean a plan that contains, for each Federal fiscal year fully or partially covered by the bid: A complete description of the service planned to be offered, including the train schedules, frequencies, equipment consists, fare structures, and such amenities as sleeping cars and food service provisions; station locations; hours of operation; provisions for accommodating the traveling public, including proposed arrangements for stations shared with other routes; expected ridership; passenger-miles; revenues by class of service between each city-pair proposed to be served; and a statement of the assumptions underlying the operating plan's contents. The proposed rule would require bidders to include a financial plan and an operating plan--as those terms are defined here--in their bids. These proposed definitions would ensure that bids contain sufficient information to be evaluated. This section also proposes to define ``long-distance route'' to mean those routes described in 49 U.S.C. 24102(5) and operated by Amtrak on the date the FAST Act was enacted. This definition is based on the statutory directive in 49 U.S.C. 24711(a). Section 269.7 Petitions Paragraph (a) of this section proposes that an eligible petitioner may petition FRA to provide intercity passenger rail transportation over a long-distance route in lieu of Amtrak for a period of time consistent with the time limitations described in Sec. 269.3(c). This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(A). Paragraph (b) of this section proposes that a petition submitted to FRA under this rule must: be filed with FRA no later than 60 days after FRA publishes the competitive passenger rail service pilot program final rule; describe the petition as a ``Petition to Provide Passenger Rail Service under 49 CFR part 269''; and describe the long-distance route or routes over which the petitioner wants to provide intercity passenger rail transportation and the Amtrak service the petitioner wants to replace. This proposed paragraph is intended to ensure a petition provides clear notice to FRA. Section 269.9 Bid Process Paragraph (a) of this section proposes that FRA would notify the eligible petitioner and Amtrak of receipt of a petition filed with FRA by publishing a notice of receipt in the Federal Register not later than 30 days after FRA receives a petition. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(B)(i). Paragraph (b) of this section describes the proposed bid requirements, including that a bid must be filed with FRA no later than 120 days after FRA publishes the notice of receipt in the Federal Register under Sec. 269.9(a). Paragraph (b) further proposes the detailed information such bids must include. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(C). Paragraph (c) of this section proposes that FRA could request supplemental information from a bidder and/or Amtrak if FRA determines it needs such information to adequately evaluate a bid. Such a request may seek information about the costs related to the service that Amtrak would still incur following the cessation of service, including the increased costs for other services. FRA would establish a deadline by which the bidder and/or Amtrak must submit the supplemental information to FRA. Section 269.11 Evaluation Paragraph (a) of this section proposes that FRA would select a winning bidder by evaluating the bids based on the requirements of this proposed part. Paragraph (b) of this section proposes that, upon selecting a winning bidder, FRA would publish a notice in the Federal Register identifying the winning bidder, the long-distance route the bidder would operate, a detailed justification of the reasons why FRA selected the bid, and any other information the Secretary determines appropriate. FRA would request public comment for 30 days after the date on which FRA selects the bid. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(B)(iii). Section 269.13 Award Paragraph (a) of this section proposes that FRA would execute a contract with a winning bidder that is not or does not include Amtrak, consistent with the requirements of proposed Sec. 269.13, and as FRA may otherwise require, not later than 270 days after the bid deadline established by proposed paragraph 269.9(b). This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(E). Paragraph (b) of this section proposes what the contract would include. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(b)(1)(E), (b)(4), and (c)(3). Paragraph (c) of this section proposes that the winning bidder would make their bid available to the public after the bid award with any appropriate confidential or proprietary information redactions. This proposed paragraph is [[Page 40627]] based on the statutory directive in 49 U.S.C. 24711(b)(1)(C)(ii). Section 269.15 Access to Facilities; Employees Paragraph (a) of this section proposes that, if an award under proposed Sec. 269.13 is made to a bidder other than Amtrak, Amtrak must provide access to the Amtrak-owned reservation system, stations, and facilities directly related to operations of the awarded route(s) to the bidder. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(c). Paragraph (b) of this section proposes that the employees of any person, except as provided in a collective bargaining agreement, a bidder uses to operate a route under the proposed rule would be considered an employee of that bidder and subject to the applicable Federal laws and regulations governing similar crafts or classes of employees of Amtrak. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(c)(2). Paragraph (c) of this section proposes that a winning bidder would provide hiring preference to qualified Amtrak employees displaced by the award of the bid, consistent with the staffing plan submitted by the winning bidder. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(c)(3). Section 269.17 Cessation of Service This section proposes under paragraph (a) that, if a bidder awarded a route under this rule ceases to operate the service or fails to fulfill its obligations under the contract required under proposed Sec. 269.13, the Administrator, in collaboration with the Surface Transportation Board, would take any necessary action consistent with title 49 of the United States Code to enforce the contract and ensure the continued provision of service, including the installment of an interim service rail carrier, providing to the interim rail carrier an operating subsidy necessary to provide service, and re-bidding the contract to operate the service. This section further proposes under paragraph (b) that the entity providing interim service would either be Amtrak or an eligible petitioner under Sec. 269.5. This proposed paragraph is based on the statutory directive in 49 U.S.C. 24711(d). III. Regulatory Impact and Notices 1. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures FRA evaluated this proposed rule consistent with Executive Orders 12866 and 13563 and DOT policies and procedures. See 44 FR 11034; Feb. 26, 1979. FRA prepared and placed in the docket a regulatory evaluation addressing the economic impact of the proposed rule. FRA does not expect any regulatory costs because this proposed rule would be voluntary and would not require an eligible petitioner to take any action. In addition, the proposed rule is limited to not more than three long-distance routes as defined in 49 U.S.C. 24102 and operated by Amtrak on the date the FAST Act was enacted. Furthermore, the current market conditions and the investment necessary to operate a long-distance service may further serve to limit the number of eligible petitioners submitting petitions under the proposed pilot program. Of course, if no eligible petitioners participate in the pilot program, then no costs or benefits would be incurred because of the proposed rule. However, FRA is estimating the costs and benefits generated when three eligible petitioners submit bids to operate long-distance rail service. As discussed above, FRA assumed three entities would submit bids to estimate costs for the bidding scenario. The costs are solely due to preparing and filing a bid to operate service. Amtrak may submit a bid only if another entity submitted a petition to bid on a route. To estimate the cost for preparing and submitting a bid, FRA estimated the time and cost for FRA to review each bid. FRA estimates its review cost would be approximately $49,834 per bid. Based on the costs of collecting and analyzing data, drafting a bid, and gaining approval within the organization, FRA estimates a railroad or other entity that bids on a route would incur a cost of approximately three times as much as FRA's review cost-- approximately $149,503 per bid. If an entity bids on a route, for this analysis, we assumed Amtrak would also submit a bid for the same route. Amtrak may have some of the data necessary to prepare the bid available. Therefore, their cost may be lower than another entity. Based on the costs of analyzing data, drafting a bid, and gaining approval within the organization, FRA estimated Amtrak's cost to prepare and submit a bid would be twice FRA's review cost -- approximately $99,669. All bid costs would be incurred during the first year. The table below shows the estimated cost for an entity and Amtrak to bid on one long-distance route. ---------------------------------------------------------------------------------------------------------------- Railroad/other FRA Review cost entity bidder cost Amtrak cost (FRA (FRA cost * 3) cost * 2) ---------------------------------------------------------------------------------------------------------------- Total Cost per Bid.................................. $49,834 $149,503 $99,669 ---------------------------------------------------------------------------------------------------------------- As stated above, FRA's total burden estimate assumes three bids would be submitted for long-distance routes. The total cost to entities other than Amtrak would be approximately $448,509. The total cost to Amtrak would be approximately $299,007. The sum of these two costs is $747,516. Since all petitions and bids would occur during the first year, the total cost would be approximately $747,516 over the four-year period (which could become 8 years if the Secretary renews a contract). Some benefits are possible from this proposed rule. FRA cannot quantify the benefits but discussed them qualitatively in the regulatory evaluation. If no railroads submit a bid for operating service, Amtrak would continue to operate service as it currently does. Therefore, no benefits would occur because of this proposed rule. However, if other entities are awarded contracts, those entities may be able to operate the service in a manner that would be beneficial to passengers. Possible benefits include better service and lower cost. The introduction of competition in the bidding process may increase passenger rail efficiency and generate public benefits by lowering the operational subsidy, and possibly leading to better service and/or lower operating costs to society. FRA expects no change to railroad safety due to this proposed regulation. 2. Regulatory Flexibility Act 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 impacts on small entities. An agency must prepare [[Page 40628]] an Initial Regulatory Flexibility Analysis (IRFA) unless it determines and certifies that a rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. FRA has not determined whether this proposed rule would have a significant economic impact on a substantial number of small entities. Therefore, FRA is publishing this IRFA to help the public comment on the potential small business impacts of the requirements in this NPRM. FRA invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from the adoption of the proposals in this NPRM. FRA will consider all information and comments received in the public comment process to determine the economic impact on small entities. Reasons for Considering Agency Action FRA is revising 49 CFR part 269 to comply with a statutory mandate requiring the Secretary to promulgate a rule to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes. The proposed rule would develop this pilot program consistent with the statutory directive. A Succinct Statement of the Objectives of, and the Legal Basis for, the Proposed Rule The objective of this proposed rule is to implement the statutory mandate in FAST Act section 11307 to develop a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes, as defined in 49 U.S.C. 24102, operated by Amtrak on the date of enactment of the FAST Act. A Description of and, Where Feasible, an Estimate of the Number of Small Entitles to Which the Proposed Rule Would Apply The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires a review of proposed and final rules to assess their impact on small entities, unless the Secretary certifies the rule would not have a significant economic impact on a substantial number of small entities. ``Small entity'' is defined in 5 U.S.C. 601 as 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 ``line-haul railroad'' that has fewer than 1,500 employees, a ``short line railroad'' with fewer than 500 employees, or a ``commuter rail system'' with annual receipts of less than seven million dollars. See ``Size Eligibility Provisions and Standards,'' 13 CFR part 121, subpart A. Federal agencies may adopt their own size standards for small entities in consultation with the SBA and in conjunction with public comment. Under that authority, FRA has published a final statement of agency policy that formally establishes ``small entities'' or ``small businesses'' as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad 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 carrier. Railroad revenue is adjusted for inflation by applying a revenue deflator formula under 49 CFR 1201.1-1. FRA is using this definition for the proposed rule. For other entities, the same dollar limit in revenues governs whether a railroad, contractor, or other respondent is a small entity. This proposed rule would apply to the following eligible petitioners: (a) A rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route, or another rail carrier that has a written agreement with a rail carrier or rail carriers that own such infrastructure; (b) a State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for provision of intercity rail passenger transportation with a written agreement with the rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long- distance route and that host or would host the intercity rail passenger transportation; or (c) a State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for provision of intercity rail passenger transportation and a rail carrier with a written agreement with another rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long- distance route and that host or would host the intercity rail passenger transportation. The only petitioners that may be considered a small entity would be small railroads. This proposed rule is voluntary for all eligible petitioners. Therefore, there are no mandates placed on large or small railroads. In addition, the proposed rule is limited to not more than three long- distance routes operated by Amtrak. Consequently, this proposed rule is not likely to affect a substantial number of small entities, and most likely will not impact any small entities. However, since small entities can bid for service, FRA requests comments on this finding. A Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Rule, Including an Estimate of the Class of Small Entities That Will Be Subject to the Requirements and the Type of Professional Skill Necessary for Preparation of the Report or Record Since this program is voluntary, small railroads would not have to take any action. Therefore, this proposed rule would not have any negative economic impact on small entities. Small railroads face the same requirements for entry in the pilot program as other railroads. The railroad must own the infrastructure over which Amtrak operates those long-distance routes described in 49 U.S.C. 24102. Any small entity would likely only bid on a route if it was in its financial interest to do so. Accordingly, any impact on small entities would be positive. The pilot program would allow small railroads to enter a market which currently has substantial barriers. FRA notes this proposed rule does not disproportionately place any small railroads that are small entities at a significant competitive disadvantage. Small railroads are not excluded from participation if they are statutorily eligible. This proposed rule and the underlying statute concern the potential selection of eligible petitioners to operate an entire long-distance route. If Amtrak uses 30 miles of a small railroad's infrastructure on a route that is 750 miles long, that small railroad could not apply under this proposed rule to operate service only over the 30 mile segment it owns (the small railroad would have to apply to operate service over the whole route). Thus, the ability to bid on a route is not constrained by a railroad's size. Identification, to the Extent Practicable, of All Relevant Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule FRA is not aware of any relevant Federal rule that duplicates, overlaps with, or conflicts with this proposed rule. FRA invites all interested parties to submit comments, data, and information demonstrating the potential economic [[Page 40629]] impact on small entities that would result from the adoption of the proposed language in this NPRM. FRA particularly encourages small entities that could potentially be impacted by the proposed rule to participate in the public comment process. FRA will consider all comments received during the public comment period for this NPRM when making a final determination of the NPRM's economic impact on small entities. 3. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 and the Office of Management and Budget's (OMB) Implementing Guidance at 5 CFR 1320.3(c): collection of information means, except as provided in section 1320.4, the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. FRA expects the requirements of this proposed rule would affect less than 10 ``persons'' as defined in 5 CFR 1320.3(c)(4). Consequently, no information collection submission is necessary, and no approval is being sought from OMB at this time. 4. Environmental Impact FRA evaluated this NPRM 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 determined this NPRM is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because the proposed rulemaking would not result in a change in current passenger service; instead, the program would only potentially result in a change in the operator of such service. Under section 4(c) and (e) of FRA's Procedures, FRA concludes no extraordinary circumstances exist for this NPRM that might trigger the need for a more detailed environmental review. As a result, FRA finds this NPRM is not a major Federal action significantly affecting the quality of the human environment. 5. Federalism Implications Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 4, 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. FRA has analyzed this NPRM consistent with the principles and criteria in Executive Order 13132. This NPRM complies with a statutory mandate, and, thus, is in compliance with Executive Order 13132. In addition, this NPRM will not have a substantial effect on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. In addition, this NPRM will not have any federalism implications that impose substantial direct compliance costs on State and local governments. 6. Unfunded Mandates Reform Act of 1995 Under Section 201 of the Unfunded Mandates Reform (UMR) 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 UMR 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]. The $100,000,000 has been adjusted to $155,000,000 to account for inflation. This proposed rule would not result in expenditure of more than $155,000,000 by the public sector in any one year, and, thus, preparation of such a statement is not required. 7. 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. Under the Executive Order, a ``significant energy action'' is defined as any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including any notice of inquiry, advance notice of proposed rulemaking, and notice of proposed rulemaking that: (1)(i) Is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) the Administrator of the OMB Office of Information and Regulatory Affairs designates as a significant energy action. FRA evaluated this NPRM consistent with Executive Order 13211. FRA determined this NPRM will not have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA concludes this regulatory action is not a ``significant energy action'' under Executive Order 13211. 8. Privacy Act Information Interested parties should be aware that anyone can search the electronic form of all written communications and comments received into any agency docket by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on Apr. 11, 2000, 65 FR 19477, or you may visit http://www.dot.gov/privacy.html. Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these [[Page 40630]] comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy. List of Subjects in 49 CFR Part 269 Railroads, Railroad employees. The Proposed Rule For the reasons discussed in the preamble, FRA proposes to revise part 269 of chapter II, subtitle B, title 49 of the Code of Federal Regulations to read as follows: PART 269--COMPETITIVE PASSENGER RAIL SERVICE PILOT PROGRAM Sec. 269.1 Purpose. 269.3 Limitations. 269.5 Definitions. 269.7 Petitions. 269.9 Bid process. 269.11 Evaluation. 269.13 Award. 269.15 Access to facilities; employees. 269.17 Cessation of service. Authority: Sec. 11307, Pub. L. 114-94; 49 U.S.C. 24711; and 49 CFR 1.89. Sec. 269.1 Purpose. The purpose of this part is to carry out the statutory mandate in 49 U.S.C. 24711 requiring the Secretary to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes. Sec. 269.3 Limitations. (a) Route limitations. The pilot program this part implements is available for not more than three Amtrak long-distance routes. (b) Time limitations. An eligible petitioner awarded a contract to provide passenger rail service under the pilot program this part implements shall only provide such service for a period not to exceed four years from the date of commencement of service. The Administrator has the discretion to renew such service for one additional operation period of four years. Sec. 269.5 Definitions. As used in this part-- Act means the Fixing America's Surface Transportation Act (Public Law 114-94 (Dec. 4, 2015)). Administrator means the Federal Railroad Administrator, or the Federal Railroad Administrator's delegate. Amtrak means the National Railroad Passenger Corporation. Eligible petitioner means one of the following entities, other than Amtrak, that has submitted a petition to FRA under Sec. 269.7: (1) A rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route, or another rail carrier that has a written agreement with a rail carrier or rail carriers that own such infrastructure; (2) A State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for providing intercity rail passenger transportation with a written agreement with the rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation; or (3) A State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for providing intercity rail passenger transportation and a rail carrier with a written agreement with another rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation. File and Filed mean submission of a document under this part to FRA at [email protected] on the date the document was emailed to FRA. Financial plan means a plan that contains, for each Federal fiscal year fully or partially covered by the bid: (1) An annual projection of the revenues, expenses, capital expenditure requirements, and cash flows (from operating activities, investing activities, and financing activities, showing sources and uses of funds) attributable to the route; and (2) A statement of the assumptions underlying the financial plan's contents. FRA means the Federal Railroad Administration. Long-distance route means those routes described in 49 U.S.C. 24102(5) and operated by Amtrak on the date of enactment of the Act. Operating plan means a plan that contains, for each Federal fiscal year fully or partially covered by the bid: (1) A complete description of the service planned to be offered, including the train schedules, frequencies, equipment consists, fare structures, and such amenities as sleeping cars and food service provisions; station locations; hours of operation; provisions for accommodating the traveling public, including proposed arrangements for stations shared with other routes; expected ridership; passenger-miles; revenues by class of service between each city-pair proposed to be served; and (2) A statement of the assumptions underlying the operating plan's contents. Sec. 269.7 Petitions. (a) In general. An eligible petitioner may petition FRA to provide intercity passenger rail transportation over a long-distance route in lieu of Amtrak for a period of time consistent with the time limitations described in Sec. 269.3(b). (b) Petition requirements. Eligible petitioners must: (1) File the petition with FRA no later than 60 days after FRA publishes the competitive passenger rail service pilot program final rule; (2) Describe the petition as a ``Petition to Provide Passenger Rail Service under 49 CFR part 269''; and (3) Describe the long-distance route or routes over which the eligible petitioner wants to provide intercity passenger rail transportation and the Amtrak service that the eligible petitioner wants to replace. Sec. 269.9 Bid process. (a) Notification. FRA will notify the eligible petitioner and Amtrak of receipt of a petition filed with FRA and will publish a notice of receipt in the Federal Register not later than 30 days after FRA's receipt of such petition. (b) Bid requirements. An eligible petitioner that has filed a timely petition under Sec. 269.7 and Amtrak, if Amtrak desires, may file a bid with FRA not later than 120 days after FRA publishes the notice of receipt in the Federal Register under Sec. 269.9(a). Each such bid must: (1) Provide FRA with sufficient information to evaluate the level of service described in the proposal, and to evaluate the proposal's compliance with the requirements in Sec. 269.13(b); (2) Describe how the bidder would operate the route. (i) This description must include, but is not limited to, an operating plan, a financial plan and, if applicable, any agreement(s) necessary for the operation of passenger service over right-of-way on the route that is not owned by the bidder. (ii) In addition, if the bidder intends to generate any revenues from ancillary activities (i.e., activities other than passenger transportation, accommodations, and food service) as part of its proposed operation of the route, then the bidder must fully describe such ancillary activities and identify their incremental impact in all relevant sections of the operating plan and the financial plan, and on the [[Page 40631]] route's performance, together with the assumptions underlying the estimates of such incremental impacts; (3) Describe what passenger equipment the bidder would need, including how it would be procured; (4) Describe in detail, including amounts, timing, and intended purpose, what sources of Federal and non-Federal funding the bidder would use, including but not limited to any Federal or State operating subsidy and any other Federal or State payments; (5) Contain a staffing plan describing the number of employees the bidder needs to operate the service, the job assignments and requirements, and the terms of work for prospective and current employees of the bidder for the service outlined in the bid; (6) Describe the capital needs for the passenger rail service; (7) Describe in detail the bidder's plans for meeting all FRA safety requirements, including equipment, employee, and passenger parameters; (8) Describe, for each Federal fiscal year fully or partially covered by the bid, a projection of the passenger rail service route's total revenue, total costs, total contribution/loss, and net cash used in operating activities per passenger-mile attributable to the route; (9) Describe how the passenger rail service would meet or exceed the performance required of or achieved by Amtrak on the applicable route during the last fiscal year. At a minimum, this description must include, for each Federal fiscal year fully or partially covered by the bid a projection of the route's expected on-time performance and train delays; (10) Analyze the reasonably foreseeable effects, both positive and negative, of the passenger rail service on other intercity passenger rail services; and (11) Describe the bidder's compliance with all applicable Federal environmental laws. (c) Supplemental information. (1) FRA may request supplemental information from a bidder and/or Amtrak if FRA determines it needs such information to evaluate a bid. (2) FRA's request may seek information about the costs related to the service that Amtrak would still incur following the cessation of service, including the increased costs for other services. (3) FRA will establish a deadline by which the bidder and/or Amtrak must file the supplemental information with FRA. Sec. 269.11 Evaluation. (a) Evaluation. FRA will select a winning bidder by evaluating the bids based on the requirements of this part. (b) Notification. (1) Upon selecting a winning bidder, FRA will publish a notice in the Federal Register describing the identity of the winning bidder, the long-distance route the bidder will operate, a detailed justification explaining why FRA selected the bid, and any other information the Administrator determines appropriate. (2) The notice under this paragraph will be open for public comment for 30 days after the date FRA selects the bid. Sec. 269.13 Award. (a) Award. FRA will execute a contract with a winning bidder that is not or does not include Amtrak, consistent with the requirements of this section and as FRA may otherwise require, not later than 270 days after the bid deadline established by Sec. 269.9(b). (b) Contract requirements. Among other things, the contract between FRA and a winning bidder that is not or does not include Amtrak must: (1) Award to the winning bidder the right and obligation to provide intercity passenger rail transportation over that route subject to such performance standards as FRA may require for a duration consistent with Sec. 269.3(b); (2) Award to the winning bidder an operating subsidy, as determined by FRA, subject to the availability of funding, for the first year at a level that does not exceed 90 percent of the level in effect for that specific route during the fiscal year preceding the fiscal year in which the petition was received, adjusted for inflation; (3) State that any award of an operating subsidy is made annually, is subject to the availability of funding, and is based on the amount calculated under Sec. 269.13(b)(2), adjusted for inflation; (4) Condition the operating and subsidy rights upon the winning bidder providing intercity passenger rail transportation over the route that is no less frequent, nor over a shorter distance, than Amtrak provided on that route before the award; (5) Condition the operating and subsidy rights upon the winning bidder's compliance with performance standards FRA may require, but which, at a minimum, must meet or exceed the performance required of or achieved by Amtrak on the applicable route during the last fiscal year; and (6) Subject the winning bidder to the grant conditions established by 49 U.S.C. 24405. (c) Publication. The winning bidder shall make their bid available to the public after the bid award with any appropriate redactions for confidential or proprietary information. Sec. 269.15 Access to facilities; employees. (a) Access to facilities. If the award under Sec. 269.13 is made to an eligible petitioner, Amtrak must provide that eligible petitioner access to the Amtrak-owned reservation system, stations, and facilities directly related to operations of the awarded route(s). (b) Employees. The employees of any person, except as provided in a collective bargaining agreement, an eligible petitioner uses in the operation of a route under this part shall be considered an employee of that eligible petitioner and subject to the applicable Federal laws and regulations governing similar crafts or classes of employees of Amtrak. (c) Hiring preference. The winning bidder must provide hiring preference to qualified Amtrak employees displaced by the award of the bid, consistent with the staffing plan the winning bidder submits. Sec. 269.17 Cessation of service. (a) If an eligible petitioner awarded a route under this part ceases to operate the service or fails to fulfill its obligations under the contract required under Sec. 269.13, the Administrator, in collaboration with the Surface Transportation Board, shall take any necessary action consistent with title 49 of the United States Code to enforce the contract and ensure the continued provision of service, including the installment of an interim service and re-bidding the contract to operate the service. (b) In re-bidding the contract, the entity providing service must either be Amtrak or an eligible petitioner. Sarah E. Feinberg, Administrator. [FR Doc. 2016-14698 Filed 6-21-16; 8:45 am] BILLING CODE 4910-06-P
![40624 Federal Register / Vol. 81, No. 120 / Wednesday, June 22, 2016 / Proposed Rules
Federal Communications Commission. hosted by the Commission, as discussed § 76.1700 [Amended]
Marlene H. Dortch, in paragraph (b)(2) of this section, a ■ 6. Section 76.1700 is amended by
Secretary. hard copy of the public inspection file removing paragraph (a)(6) and
shall be maintained at the main studio redesignating paragraphs (a)(7) through
Proposed Rules of the station, unless the licensee elects (a)(10) as (a)(6) through (a)(9).
For the reasons stated in the voluntarily to place the file online as
preamble, the Federal Communications discussed in paragraph (b)(2) of this § 76.1708 [Removed and Reserved].
Commission proposes to amend 47 CFR section. An applicant for a new station ■ 7. Section 76.1708 is removed and
parts 73 and 76 as follows: or change of community shall maintain reserved.
its file at an accessible place in the [FR Doc. 2016–14793 Filed 6–21–16; 8:45 am]
PART 73—RADIO BROADCAST proposed community of license or at its BILLING CODE 6712–01–P
SERVICES proposed main studio.
(2)(i) A television station licensee or
■ 1. The authority citation for part 73 applicant, and any radio station licensee
continues to read as follows: DEPARTMENT OF TRANSPORTATION
or applicant not temporarily exempt as
Authority: 47 U.S.C. 154, 303, 334, 336, described in this paragraph, shall place Federal Railroad Administration
and 339. the contents required by paragraph (e) of
this section of its public inspection file 49 CFR Part 269
§ 73.1202 [Removed and Reserved].
in the online public file hosted by the
■ 2. Section 73.1202 is removed and [Docket No. FRA–2016–0023; Notice No. 1]
Commission, with the exception of the
reserved. political file as required by paragraph RIN 2130–AC60
■ 3. Section 73.3526 is amended by
(e)(6) of this section, as discussed in
revising paragraphs (a)(1) and (2), (b)(1), paragraph (b)(3) of this section. Any Competitive Passenger Rail Service
and (b)(2)(i); removing paragraph (e)(9) radio station not in the top 50 Nielsen Pilot Program
and redesignating (e)(10) through (e)(17) Audio markets, and any radio station
as (e)(9) through (e)(16). AGENCY: Federal Railroad
with fewer than five full-time Administration (FRA), Department of
§ 73.3526 Local public inspection file of employees, shall continue to retain the Transportation (DOT).
commercial stations. public inspection file at the station in
ACTION: Notice of proposed rulemaking
(a) * * * the manner discussed in paragraph
(NPRM).
(1) Applicants for a construction (b)(1) of this section until March 1,
permit for a new station in the 2018. However, any radio station that is SUMMARY: FRA proposes regulations to
commercial broadcast services shall not required to place its public implement a pilot program for
maintain a public inspection file inspection file in the online public file competitive selection of eligible
containing the material, relating to that hosted by the Commission before March petitioners in lieu of Amtrak to operate
station, described in paragraphs (e)(2) 1, 2018 may choose to do so, instead of not more than three long-distance routes
and (e)(9) of this section. A separate file retaining the public inspection file at operated by Amtrak. The proposed rule
shall be maintained for each station for the station in the manner discussed in would develop this pilot program as
which an application is pending. If the paragraph (b)(1) of this section. required by a statutory mandate.
application is granted, paragraph (a)(2) * * * * * DATES: Written Comments: Written
of this section shall apply. comments on the proposed rule must be
(2) Every permittee or licensee of an PART 76—MULTICHANNEL VIDEO received by August 22, 2016. FRA will
AM, FM, TV or Class A TV station in AND CABLE TELEVISION SERVICE consider comments received after that
the commercial broadcast services shall ■ 4. The authority citation for part 76 date if practicable.
maintain a public inspection file continues to read as follows: Hearing Request: FRA anticipates
containing the material, relating to that resolving this rulemaking without a
Authority: 47 U.S.C. 151, 152, 153, 154,
station, described in paragraphs (e)(1) 301, 302, 302a, 303, 303a, 307, 308, 309, 312,
public, oral hearing. However, if FRA
through (e)(9) and paragraph (e)(12) of 315, 317, 325, 338, 339, 340, 341, 503, 521, receives a specific request for a public,
this section. In addition, every permittee 522, 531, 532, 534, 535, 536, 537, 543, 544, oral hearing prior to July 22, 2016, then
or licensee of a commercial TV or Class 544a, 545, 548, 549, 552, 554, 556, 558, 560, FRA will schedule such a hearing and
A TV station shall maintain for public 561, 571, 572, 573. FRA will publish a supplemental notice
inspection a file containing material, ■ 5. Section 76.5 is amended by revising in the Federal Register to inform
relating to that station, described in paragraph (pp)(2) to read as follows: interested parties of the date, time, and
paragraphs (e)(10), (e)(14), (e)(15), and location of any such hearing.
(e)(16) of this section, and every § 76.5 Definitions. ADDRESSES: Comments: Comments
permittee or licensee of a commercial (pp) * * * related to Docket Number FRA–2016–
AM or FM station shall maintain for (2) In the case of a cable system with 0023 may be submitted by any of the
public inspection a file containing the more than one headend, the principal following methods:
material, relating to that station, headend designated by the cable • Online: Comments should be filed
described in paragraphs (e)(11), (e)(13), operator, except that such designation at the Federal eRulemaking Portal,
and (e)(15) of this section. A separate shall not undermine or evade the http://www.regulations.gov. Follow the
sradovich on DSK3TPTVN1PROD with PROPOSALS
file shall be maintained for each station requirements of subpart D of this part. online instructions for submitting
for which an authorization is Each cable system must provide comments.
outstanding, and the file shall be information regarding the designation • Mail: Docket Management Facility,
maintained so long as an authorization and location of the principal headend to U.S. Department of Transportation, 1200
to operate the station is outstanding. the FCC. Except for good cause, an New Jersey Ave. SE., W12–140,
b) * * * operator may not change its choice of Washington, DC 20590.
(1) For radio licensees temporarily principal headend. • Hand Delivery: Room W12–140 on
exempt from the online public file * * * * * the Ground level of the West Building,
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![Federal Register / Vol. 81, No. 120 / Wednesday, June 22, 2016 / Proposed Rules 40629
impact on small entities that would 5. Federalism Implications in the promulgation of any rule that includes
result from the adoption of the proposed any Federal mandate that may result in
Executive Order 13132, ‘‘Federalism’’ expenditure by State, local, and tribal
language in this NPRM. FRA (64 FR 43255, Aug. 4, 1999), requires governments, in the aggregate, or by the
particularly encourages small entities FRA to develop an accountable process private sector, of $100,000,000 or more
that could potentially be impacted by to ensure ‘‘meaningful and timely input (adjusted annually for inflation) in any 1
the proposed rule to participate in the by State and local officials in the year, and before promulgating any final rule
public comment process. FRA will development of regulatory policies that for which a general notice of proposed
consider all comments received during have federalism implications.’’ ‘‘Policies rulemaking was published, the agency shall
the public comment period for this prepare a written statement [detailing the
that have federalism implications’’ are effect on State, local, and tribal governments
NPRM when making a final defined in the Executive Order to and the private sector].
determination of the NPRM’s economic include regulations that have
impact on small entities. ‘‘substantial direct effects on the States, The $100,000,000 has been adjusted to
on the relationship between the national $155,000,000 to account for inflation.
3. Paperwork Reduction Act This proposed rule would not result in
government and the States, or on the
distribution of power and expenditure of more than $155,000,000
Under the Paperwork Reduction Act by the public sector in any one year,
of 1995 and the Office of Management responsibilities among the various
and, thus, preparation of such a
and Budget’s (OMB) Implementing levels of government.’’ Under Executive
statement is not required.
Guidance at 5 CFR 1320.3(c): Order 13132, the agency may not issue
a regulation with federalism 7. Energy Impact
collection of information means, except as implications that imposes substantial
provided in section 1320.4, the obtaining, Executive Order 13211 requires
direct compliance costs and that is not Federal agencies to prepare a Statement
causing to be obtained, soliciting, or required by statute, unless the Federal
requiring the disclosure to an agency, third of Energy Effects for any ‘‘significant
government provides the funds energy action.’’ 66 FR 28355, May 22,
parties or the public of information by or for
necessary to pay the direct compliance 2001. Under the Executive Order, a
an agency by means of identical questions
costs incurred by State and local ‘‘significant energy action’’ is defined as
posed to, or identical reporting,
governments, or the agency consults any action by an agency (normally
recordkeeping, or disclosure requirements
with State and local government published in the Federal Register) that
imposed on, ten or more persons, whether
officials early in the process of promulgates or is expected to lead to the
such collection of information is mandatory,
developing the regulation. Where a promulgation of a final rule or
voluntary, or required to obtain or retain a
benefit.
regulation has federalism implications regulation, including any notice of
and preempts State law, the agency inquiry, advance notice of proposed
FRA expects the requirements of this seeks to consult with State and local rulemaking, and notice of proposed
proposed rule would affect less than 10 officials in the process of developing the rulemaking that: (1)(i) Is a significant
‘‘persons’’ as defined in 5 CFR regulation. regulatory action under Executive Order
1320.3(c)(4). Consequently, no FRA has analyzed this NPRM 12866 or any successor order, and (ii) is
information collection submission is consistent with the principles and likely to have a significant adverse effect
necessary, and no approval is being criteria in Executive Order 13132. This on the supply, distribution, or use of
sought from OMB at this time. NPRM complies with a statutory energy; or (2) the Administrator of the
mandate, and, thus, is in compliance OMB Office of Information and
4. Environmental Impact with Executive Order 13132. Regulatory Affairs designates as a
In addition, this NPRM will not have significant energy action. FRA evaluated
FRA evaluated this NPRM consistent a substantial effect on the States, on the this NPRM consistent with Executive
with its ‘‘Procedures for Considering relationship between the Federal Order 13211. FRA determined this
Environmental Impacts’’ (FRA’s government and the States, or on the NPRM will not have a significant
Procedures) (64 FR 28545, May 26, distribution of power and adverse effect on the supply,
1999) as required by the National responsibilities among the various distribution, or use of energy.
Environmental Policy Act (42 U.S.C. levels of government. In addition, this Consequently, FRA concludes this
4321 et seq.), other environmental NPRM will not have any federalism regulatory action is not a ‘‘significant
statutes, Executive Orders, and related implications that impose substantial energy action’’ under Executive Order
regulatory requirements. FRA direct compliance costs on State and 13211.
determined this NPRM is not a major local governments.
FRA action (requiring the preparation of 8. Privacy Act Information
an environmental impact statement or 6. Unfunded Mandates Reform Act of
Interested parties should be aware
environmental assessment) because the 1995
that anyone can search the electronic
proposed rulemaking would not result Under Section 201 of the Unfunded form of all written communications and
in a change in current passenger service; Mandates Reform (UMR) Act of 1995 comments received into any agency
instead, the program would only (Pub. L. 104–4, 2 U.S.C. 1531), each docket by the name of the individual
potentially result in a change in the Federal agency ‘‘shall, unless otherwise submitting the document (or signing the
operator of such service. Under section prohibited by law, assess the effects of document, if submitted on behalf of an
4(c) and (e) of FRA’s Procedures, FRA Federal regulatory actions on State, association, business, labor union, etc.).
sradovich on DSK3TPTVN1PROD with PROPOSALS
concludes no extraordinary local, and tribal governments, and the You may review DOT’s complete
circumstances exist for this NPRM that private sector (other than to the extent Privacy Act Statement in the Federal
might trigger the need for a more that such regulations incorporate Register published on Apr. 11, 2000, 65
detailed environmental review. As a requirements specifically set forth in FR 19477, or you may visit http://
result, FRA finds this NPRM is not a law).’’ Section 202 of the UMR Act (2 www.dot.gov/privacy.html. Under 5
major Federal action significantly U.S.C. 1532) further requires that: U.S.C. 553(c), DOT solicits comments
affecting the quality of the human before promulgating any general notice of from the public to better inform its
environment. proposed rulemaking that is likely to result rulemaking process. DOT posts these
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![Federal Register / Vol. 81, No. 120 / Wednesday, June 22, 2016 / Proposed Rules 40631
route’s performance, together with the § 269.11 Evaluation. (c) Publication. The winning bidder
assumptions underlying the estimates of (a) Evaluation. FRA will select a shall make their bid available to the
such incremental impacts; winning bidder by evaluating the bids public after the bid award with any
(3) Describe what passenger based on the requirements of this part. appropriate redactions for confidential
equipment the bidder would need, (b) Notification. (1) Upon selecting a or proprietary information.
including how it would be procured; winning bidder, FRA will publish a
notice in the Federal Register § 269.15 Access to facilities; employees.
(4) Describe in detail, including
amounts, timing, and intended purpose, describing the identity of the winning (a) Access to facilities. If the award
what sources of Federal and non- bidder, the long-distance route the under § 269.13 is made to an eligible
Federal funding the bidder would use, bidder will operate, a detailed
petitioner, Amtrak must provide that
including but not limited to any Federal justification explaining why FRA
eligible petitioner access to the Amtrak-
or State operating subsidy and any other selected the bid, and any other
information the Administrator owned reservation system, stations, and
Federal or State payments; facilities directly related to operations of
determines appropriate.
(5) Contain a staffing plan describing (2) The notice under this paragraph the awarded route(s).
the number of employees the bidder will be open for public comment for 30 (b) Employees. The employees of any
needs to operate the service, the job days after the date FRA selects the bid. person, except as provided in a
assignments and requirements, and the collective bargaining agreement, an
terms of work for prospective and § 269.13 Award.
eligible petitioner uses in the operation
current employees of the bidder for the (a) Award. FRA will execute a
of a route under this part shall be
service outlined in the bid; contract with a winning bidder that is
considered an employee of that eligible
(6) Describe the capital needs for the not or does not include Amtrak,
petitioner and subject to the applicable
passenger rail service; consistent with the requirements of this
section and as FRA may otherwise Federal laws and regulations governing
(7) Describe in detail the bidder’s similar crafts or classes of employees of
plans for meeting all FRA safety require, not later than 270 days after the
bid deadline established by § 269.9(b). Amtrak.
requirements, including equipment,
employee, and passenger parameters; (b) Contract requirements. Among (c) Hiring preference. The winning
other things, the contract between FRA bidder must provide hiring preference
(8) Describe, for each Federal fiscal and a winning bidder that is not or does
year fully or partially covered by the to qualified Amtrak employees
not include Amtrak must: displaced by the award of the bid,
bid, a projection of the passenger rail (1) Award to the winning bidder the
service route’s total revenue, total costs, consistent with the staffing plan the
right and obligation to provide intercity winning bidder submits.
total contribution/loss, and net cash passenger rail transportation over that
used in operating activities per route subject to such performance § 269.17 Cessation of service.
passenger-mile attributable to the route; standards as FRA may require for a
(9) Describe how the passenger rail (a) If an eligible petitioner awarded a
duration consistent with § 269.3(b);
service would meet or exceed the (2) Award to the winning bidder an route under this part ceases to operate
performance required of or achieved by operating subsidy, as determined by the service or fails to fulfill its
Amtrak on the applicable route during FRA, subject to the availability of obligations under the contract required
the last fiscal year. At a minimum, this funding, for the first year at a level that under § 269.13, the Administrator, in
description must include, for each does not exceed 90 percent of the level collaboration with the Surface
Federal fiscal year fully or partially in effect for that specific route during Transportation Board, shall take any
covered by the bid a projection of the the fiscal year preceding the fiscal year necessary action consistent with title 49
route’s expected on-time performance in which the petition was received, of the United States Code to enforce the
and train delays; adjusted for inflation; contract and ensure the continued
(10) Analyze the reasonably (3) State that any award of an provision of service, including the
foreseeable effects, both positive and operating subsidy is made annually, is installment of an interim service and re-
negative, of the passenger rail service on subject to the availability of funding, bidding the contract to operate the
other intercity passenger rail services; and is based on the amount calculated service.
and under § 269.13(b)(2), adjusted for
(b) In re-bidding the contract, the
(11) Describe the bidder’s compliance inflation;
(4) Condition the operating and entity providing service must either be
with all applicable Federal Amtrak or an eligible petitioner.
environmental laws. subsidy rights upon the winning bidder
providing intercity passenger rail Sarah E. Feinberg,
(c) Supplemental information. (1)
transportation over the route that is no Administrator.
FRA may request supplemental
less frequent, nor over a shorter
information from a bidder and/or [FR Doc. 2016–14698 Filed 6–21–16; 8:45 am]
distance, than Amtrak provided on that
Amtrak if FRA determines it needs such BILLING CODE 4910–06–P
route before the award;
information to evaluate a bid. (5) Condition the operating and
(2) FRA’s request may seek subsidy rights upon the winning
information about the costs related to bidder’s compliance with performance
sradovich on DSK3TPTVN1PROD with PROPOSALS
the service that Amtrak would still standards FRA may require, but which,
incur following the cessation of service, at a minimum, must meet or exceed the
including the increased costs for other performance required of or achieved by
services. Amtrak on the applicable route during
(3) FRA will establish a deadline by the last fiscal year; and
which the bidder and/or Amtrak must (6) Subject the winning bidder to the
file the supplemental information with grant conditions established by 49
FRA. U.S.C. 24405.
VerDate Sep<11>2014 17:40 Jun 21, 2016 Jkt 238001 PO 00000 Frm 00084 Fmt 4702 Sfmt 9990 E:\FR\FM\22JNP1.SGM 22JNP1](https://thefederalregister.org/doc/81_FR_40744/page/8.svg)
Document Created: 2016-06-22 01:05:32
Document Modified: 2016-06-22 01:05:32
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking (NPRM). | |
| Dates | Written Comments: Written comments on the proposed rule must be received by August 22, 2016. FRA will consider comments received after that date if practicable. | |
| Contact | Brandon White, Office of Railroad Policy and Development, FRA, 1200 New Jersey Ave. SE., Washington, DC 20590, (202) 493-1327, or Zeb Schorr, Office of Chief Counsel, FRA, 1200 New Jersey Ave. SE., Mail Stop 10, Washington, DC 20590, (202) 493-6072. | |
| FR Citation | 81 FR 40624 | |
| RIN Number | 2130-AC60 | |
| CFR Associated | Railroads and Railroad Employees |
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