83 FR 19647 - On-Time Performance Under Section 213 of The Passenger Rail Investment and Improvement Act of 2008

SURFACE TRANSPORTATION BOARD

Federal Register Volume 83, Issue 87 (May 4, 2018)

Page Range		19647-19647
FR Document		2018-09558

The Surface Transportation Board (Board) is removing its final rule concerning on-time performance of intercity passenger rail service because it was invalidated upon judicial review.

Federal Register, Volume 83 Issue 87 (Friday, May 4, 2018)

[Federal Register Volume 83, Number 87 (Friday, May 4, 2018)]
[Rules and Regulations]
[Page 19647]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09558]


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SURFACE TRANSPORTATION BOARD

49 CFR Part 1040

[Docket No. EP 726]


On-Time Performance Under Section 213 of The Passenger Rail 
Investment and Improvement Act of 2008

AGENCY: Surface Transportation Board.

ACTION: Final rule.

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SUMMARY: The Surface Transportation Board (Board) is removing its final 
rule concerning on-time performance of intercity passenger rail service 
because it was invalidated upon judicial review.

DATE: This final rule is effective May 4, 2018.

FOR FURTHER INFORMATION CONTACT: Scott M. Zimmerman: (202) 245-0386. 
Federal Information Relay Service (FIRS) for the hearing impaired: 
(800) 877-8339.

SUPPLEMENTARY INFORMATION: On May 15, 2015, the Board instituted a 
rulemaking proceeding in this docket to define ``on-time performance'' 
for intercity passenger trains for purposes of Section 213 of the 
Passenger Rail Investment and Improvement Act of 2008 (PRIIA), 49 
U.S.C. 24308(f). See 80 FR 28928. The Board adopted its final rule in 
49 CFR part 1040 on July 28, 2016, and the rule took effect on August 
27, 2016. See 81 FR 51343.
    Petitions for judicial review of the final rule were filed in the 
U.S. Courts of Appeals for the Eighth Circuit and the District of 
Columbia Circuit, and were ultimately consolidated in the Eighth 
Circuit. The Court of Appeals found that the Board lacked authority to 
promulgate a final rule defining on-time performance under PRIIA and 
vacated the Board's rule. See Union Pac. R.R. v. Surface Transp. Bd., 
863 F.3d 816 (8th Cir. 2017). The National Railroad Passenger 
Corporation (Amtrak) and certain passenger organizations filed 
petitions for certiorari with the U.S. Supreme Court, which declined to 
review the Eighth Circuit's ruling.
    The Board's rule is therefore invalid and 49 CFR part 1040 will be 
removed. Because this action is based on a final court determination 
that the rule being eliminated is invalid, the Board finds good cause 
to dispense with notice and comment under the Administrative Procedure 
Act (APA). See 5 U.S.C. 553(b)(B).
    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612, 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Because the Board has determined that notice and comment are not 
required under the APA for this rulemaking, the requirements of the RFA 
do not apply.
    This final rule does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501-3521.

List of Subjects in 49 CFR Part 1040

    Mass transportation, Railroads.

    It is ordered:
    1. Part 1040 is removed and notice will be published in the Federal 
Register.
    2. This decision is effective on May 4, 2018.

    Decided: April 30, 2018.

    By the Board, Board Members Begeman and Miller.
Jeffrey Herzig,
Clearance Clerk.

PART 1040 [REMOVED AND RESERVED]

0
For the reasons set forth in the preamble, and under the authority of 
49 U.S.C. 1321(a), the Surface Transportation Board removes and 
reserves 49 CFR part 1040.

[FR Doc. 2018-09558 Filed 5-3-18; 8:45 am]
 BILLING CODE 4915-01-P

Federal Register / Vol. 83, No. 87 / Friday, May 4, 2018 / Rules and Regulations 19647

and there are no known significant defined in 242.7100 and does not waive Cir. 2017). The National Railroad
alternative approaches to the rule that the Government entitlement to the Passenger Corporation (Amtrak) and
would meet the requirements. recovery of any overpayment plus certain passenger organizations filed
interest on the overpayments in petitions for certiorari with the U.S.
VII. Paperwork Reduction Act
accordance with FAR 15.407–1(b)(7). Supreme Court, which declined to
The rule does not contain any (iii) Voluntary disclosure of defective review the Eighth Circuit’s ruling.
information collection requirements that pricing does not waive the The Board’s rule is therefore invalid
require the approval of the Office of Government’s rights to pursue defective and 49 CFR part 1040 will be removed.
Management and Budget under the pricing claims on the affected contract Because this action is based on a final
Paperwork Reduction Act (44 U.S.C. or any other Government contract. court determination that the rule being
chapter 35). [FR Doc. 2018–09489 Filed 5–3–18; 8:45 am] eliminated is invalid, the Board finds
List of Subjects in 48 CFR Part 215 BILLING CODE 5001–06–P good cause to dispense with notice and
Government procurement. comment under the Administrative
Procedure Act (APA). See 5 U.S.C.
Amy G. Williams, SURFACE TRANSPORTATION BOARD 553(b)(B).
Deputy, Defense Acquisition Regulations The Regulatory Flexibility Act (RFA),
System. 49 CFR Part 1040 as amended by the Small Business
Therefore, 48 CFR part 215 is Regulatory Enforcement Fairness Act of
amended as follows: [Docket No. EP 726]
1996, 5 U.S.C. 601–612, generally
On-Time Performance Under Section requires an agency to prepare a
PART 215—CONTRACTING BY
213 of The Passenger Rail Investment regulatory flexibility analysis of any rule
NEGOTIATION
and Improvement Act of 2008 subject to notice and comment
■ 1. The authority citation for part 215 rulemaking requirements, unless the
continues to read as follows: AGENCY: Surface Transportation Board. agency certifies that the rule will not
ACTION: Final rule. have a significant economic impact on
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
a substantial number of small entities.
SUMMARY: The Surface Transportation Because the Board has determined that
■ 2. Add sections 215.407 and 215.407– Board (Board) is removing its final rule notice and comment are not required
1 to subpart 215.4 to read as follows: concerning on-time performance of under the APA for this rulemaking, the
215.407 Special cost or pricing areas. intercity passenger rail service because requirements of the RFA do not apply.
it was invalidated upon judicial review. This final rule does not contain a new
215.407–1 Defective certified cost or DATE: This final rule is effective May 4,
pricing data.
or amended information collection
2018. requirement subject to the Paperwork
(c)(i) When a contractor voluntarily Reduction Act of 1995, 44 U.S.C. 3501–
FOR FURTHER INFORMATION CONTACT:
discloses defective pricing after contract 3521.
Scott M. Zimmerman: (202) 245–0386.
award, the contracting officer shall
Federal Information Relay Service
discuss the disclosure with the Defense List of Subjects in 49 CFR Part 1040
(FIRS) for the hearing impaired: (800)
Contract Audit Agency (DCAA). This
877–8339. Mass transportation, Railroads.
discussion will assist in the contracting
officer determining the involvement of SUPPLEMENTARY INFORMATION: On May It is ordered:
DCAA, which could be a limited-scope 15, 2015, the Board instituted a 1. Part 1040 is removed and notice
audit (e.g., limited to the affected cost rulemaking proceeding in this docket to will be published in the Federal
elements of the defective pricing define ‘‘on-time performance’’ for Register.
disclosure), a full-scope audit, or intercity passenger trains for purposes
2. This decision is effective on May 4,
technical assistance as appropriate for of Section 213 of the Passenger Rail
2018.
the circumstances (e.g., nature or dollar Investment and Improvement Act of
2008 (PRIIA), 49 U.S.C. 24308(f). See 80 Decided: April 30, 2018.
amount of the defective pricing
FR 28928. The Board adopted its final By the Board, Board Members Begeman
disclosure). At a minimum, the and Miller.
contracting officer shall discuss with rule in 49 CFR part 1040 on July 28,
2016, and the rule took effect on August Jeffrey Herzig,
DCAA the following:
(A) Completeness of the contractor’s 27, 2016. See 81 FR 51343. Clearance Clerk.
voluntary disclosure on the affected Petitions for judicial review of the
final rule were filed in the U.S. Courts PART 1040 [REMOVED AND
contract.
(B) Accuracy of the contractor’s cost of Appeals for the Eighth Circuit and the RESERVED]
impact calculation for the affected District of Columbia Circuit, and were
ultimately consolidated in the Eighth ■ For the reasons set forth in the
contract.
(C) Potential impact on existing Circuit. The Court of Appeals found that preamble, and under the authority of 49
contracts, task or deliver orders, or other the Board lacked authority to U.S.C. 1321(a), the Surface
proposals the contractor has submitted promulgate a final rule defining on-time Transportation Board removes and
to the Government. performance under PRIIA and vacated reserves 49 CFR part 1040.
(ii) Voluntary disclosure of defective the Board’s rule. See Union Pac. R.R. v. [FR Doc. 2018–09558 Filed 5–3–18; 8:45 am]
pricing is not a voluntary refund as Surface Transp. Bd., 863 F.3d 816 (8th BILLING CODE 4915–01–P
amozie on DSK3GDR082PROD with RULES

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Document Created: 2018-11-02 09:52:53
Document Modified: 2018-11-02 09:52:53

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		Rules and Regulations
Action		Final rule.
Dates		This final rule is effective May 4, 2018.
Contact		Scott M. Zimmerman: (202) 245-0386. Federal Information Relay Service (FIRS) for the hearing impaired: (800) 877-8339.
FR Citation		83 FR 19647
CFR Associated		Mass Transportation and Railroads