83_FR_63341 83 FR 63106 - System Safety Program

83 FR 63106 - System Safety Program

DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration

Federal Register Volume 83, Issue 235 (December 7, 2018)

Page Range63106-63109
FR Document2018-26447

On August 12, 2016, FRA published a final rule requiring commuter and intercity passenger railroads to develop and implement a system safety program (SSP) to improve the safety of their operations. FRA has stayed the SSP final rule's requirements until December 4, 2018. FRA is issuing this final rule to extend that stay until September 4, 2019.

Federal Register, Volume 83 Issue 235 (Friday, December 7, 2018)
[Federal Register Volume 83, Number 235 (Friday, December 7, 2018)]
[Rules and Regulations]
[Pages 63106-63109]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-26447]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 270

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


System Safety Program

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

ACTION: Final rule; stay of regulations.

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SUMMARY: On August 12, 2016, FRA published a final rule requiring 
commuter and intercity passenger railroads to develop and implement a 
system safety program (SSP) to improve the safety of their operations. 
FRA has stayed the SSP final rule's requirements until December 4, 
2018. FRA is issuing this final rule to extend that stay until 
September 4, 2019.

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

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

FOR FURTHER INFORMATION CONTACT: Elizabeth A. Gross, Attorney, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Chief Counsel; telephone: 202-493-1342; email: 
[email protected].

SUPPLEMENTARY INFORMATION: On August 12, 2016, FRA published a final 
rule requiring commuter and intercity passenger railroads to develop 
and implement an SSP to improve the safety of their operations. See 81 
FR 53850. On February 10, 2017, FRA stayed the SSP final rule's 
requirements until March 21, 2017, consistent with the new 
Administration's guidance issued January 20, 2017, intended to provide 
the Administration an adequate opportunity to review new and pending 
regulations. See 82 FR 10443 (Feb. 13, 2017). To provide additional 
time for that review, FRA extended the stay until May 22, 2017, June 5, 
2017, December 4, 2017, and then December 4, 2018. See 82 FR 14476 
(Mar. 21, 2017); 82 FR 23150 (May 22, 2017); 82 FR 26359 (June 7, 
2017); and 82 FR 56744 (Nov. 30, 2017).\1\ In that November 2017 
document, FRA stated that the stays of the rule's requirements did not 
affect the SSP final rule's information protection provisions in 49 CFR 
270.105, which took effect on August 14, 2017, for information a 
railroad compiles or collects after that date solely for SSP purposes.
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    \1\ FRA notes it inadvertently published two notifications in 
the Federal Register identified as Notice No. 6 for this docket. See 
82 FR 23150 (May 22, 2017), Docket No. FRA-2011-0060-0043; and 82 FR 
26359 (June 7, 2017), Docket No. FRA-2011-0060-0044. Before 
identifying the duplication, FRA published a subsequent Notice No. 
7. See 82 FR 56744 (Nov. 30, 2017), Docket No. FRA-2011-0060-0047. 
FRA is numbering this document as Notice No. 9, to reflect that it 
is actually the ninth notification published for this docket.
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    FRA's review included petitions for reconsideration of the SSP 
final rule (Petitions). Various rail labor organizations (Labor 
Organizations) filed a single joint petition.\2\ State and local 
transportation departments and authorities (States) filed the three 
other petitions, one of which was a joint petition (State Joint 
Petition).\3\ The State Joint Petition requested that FRA stay the SSP 
final rule, and NCDOT specifically requested that FRA stay the rule 
while FRA was considering the

[[Page 63107]]

petitions. All Petitions were available for public comment in the 
docket for the SSP rulemaking. On November 15, 2016, the Massachusetts 
Department of Transportation submitted a comment supporting the State 
Joint Petition, also asking FRA to stay the SSP final rule. FRA did not 
receive any public comments opposing the States' requests for a stay.
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    \2\ The labor organizations that filed the joint petition are: 
The American Train Dispatchers Association (ATDA), Brotherhood of 
Locomotive Engineers and Trainmen (BLET), Brotherhood of Maintenance 
of Way Employes Division (BMWED), the Brotherhood of Railroad 
Signalmen (BRS), Brotherhood Railway Carmen Division (TCU/IAM), and 
Transport Workers Union of America (TWU).
    \3\ The Capitol Corridor Joint Powers Authority (CCJPA), Indiana 
Department of Transportation (INDOT), Northern New England Passenger 
Rail Authority (NNEPRA), and San Joaquin Joint Powers Authority 
(SJJPA) filed a joint petition (Joint Petition). The North Carolina 
Department of Transportation (NCDOT) and State of Vermont Agency of 
Transportations (VTrans) each filed separate petitions.
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    On October 30, 2017, FRA met with the Passenger Safety Working 
Group and the System Safety Task Group of the Railroad Safety Advisory 
Committee (RSAC) to discuss the Petitions and comments received in 
response to the Petitions.\4\ FRA specifically invited its state 
partners to this meeting, which was also open to the public. This 
meeting was necessary for FRA to receive input from industry and the 
public, and to discuss potential paths forward to respond to the 
Petitions prior to FRA taking final action. During the meeting, a 
representative from the Oregon Department of Transportation asked 
whether the SSP final rule would be further stayed pending FRA's 
development of a response to the Petitions and public input received at 
the meeting. An FRA representative indicated that he anticipated a 
further stay of the rule to provide time to resolve the issues raised 
by the petitions. None of the meeting participants expressed opposition 
to a further stay. See generally FRA-2011-0060-0046.
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    \4\ Attendees at the October 30, 2017, meeting included 
representatives from the following organizations: ADS System Safety 
Consulting, LLC; American Association of State Highway and 
Transportation Officials (AASHTO); American Public Transportation 
Association (APTA); American Short Line and Regional Railroad 
Association (ASLRRA); ATDA; Association of American Railroads (AAR); 
BLET; BMWED; BRS; CCJPA; The Fertilizer Institute; Gannett Fleming 
Transit and Rail Systems; International Brotherhood of Electrical 
Workers; Metropolitan Transportation Authority (MTA); National 
Railroad Passenger Corporation (Amtrak); National Transportation 
Safety Board (NTSB); NCDOT; NNEPRA; San Joaquin Regional Rail 
Commission/Altamont Corridor Express; Sheet Metal, Air, Rail, and 
Transportation Workers (SMART); and United States Department of 
Transportation--Transportation Safety Institute. During the meeting, 
an attorney from Kaplan Kirsch & Rockwell, LLP representing AASHTO 
indicated he was authorized to speak on behalf of all the State 
petitioners.
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    In response to draft rule text FRA presented for discussion during 
the RSAC meeting, the States indicated they would need an extended 
caucus to discuss. On March 16, 2018, the Executive Committee of the 
States for Passenger Rail Coalition (SPRC) \5\ provided, and FRA 
uploaded to the rulemaking docket, proposed revisions to the draft rule 
text. See FRA-2011-0060-0050. FRA is reviewing and considering these 
suggested revisions in formulating its response to the petitions for 
reconsideration.
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    \5\ SPRC's website indicates it is an ``alliance of State and 
Regional Transportation Officials,'' and each state petitioner 
appears to be an SPRC member. See https://www.s4prc.org/state-programs.
---------------------------------------------------------------------------

    Given the request for a continued stay of the rule, the comment 
received supporting a stay, the lack of opposition to a stay in either 
the comments or at the public RSAC meeting, and FRA's interest in 
addressing the issues raised in the State petitions through notice and 
comment rulemaking prior to requiring full compliance with the SSP 
final rule, FRA finds notice and comment for this stay to be 
impracticable and incompatible with the forthcoming NPRM.

Regulatory Impact and Notices

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

    This final rule is a non-significant deregulatory action within the 
meaning of Executive Order 12866 and DOT policies and procedures. See 
44 FR 11034 (Feb. 26, 1979. The final rule is considered an E.O. 13771 
deregulatory action. Details on the estimated cost savings are below.
    In August 2016, FRA issued the System Safety Program final rule 
(2016 Final Rule) as part of its efforts to continuously improve rail 
safety and to satisfy the statutory mandate in sections 103 and 109 of 
the Rail Safety Improvement Act of 2008. The 2016 Final Rule requires 
passenger railroads to establish a program that systematically 
evaluates railroad safety risks and manages those risks with the goal 
of reducing the number and rates of railroad accidents, incidents, 
injuries, and fatalities. Paperwork requirements are the largest burden 
of the 2016 Final Rule.
    FRA believes that this final rule, which will stay the requirements 
of the 2016 Final Rule until September 4, 2019, will reduce regulatory 
burden on the railroad industry. By staying the requirements of the 
2016 Final Rule, railroads will realize a cost savings as railroads 
will not sustain any costs during the first nine months of this 
analysis. In addition, because this analysis discounts future costs and 
this final rule will move forward all costs by nine months, the present 
value costs of this stay will lower the present value cost of the SSP 
rulemaking. FRA estimates this cost savings to be approximately 
$255,928, at a 3-percent discount rate, and $246,360, at a 7-percent 
discount rate. The following table shows the 2016 Final Rule's total 
cost, delayed an additional nine months past the 2017 stay extension, 
the implementation date total costs, and the cost savings from the 
additional nine-month implementation date delay.

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

Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., and 
Executive Order 13272, 67 FR 53461 (Aug. 16, 2002), require agency 
review of proposed and final rules to assess their impact on small 
entities. An agency must prepare an Initial Regulatory Flexibility 
Analysis unless it determines and certifies that a rule, if 
promulgated, would not have a significant impact on a substantial 
number of small entities. Pursuant to the Regulatory Flexibility Act of 
1980, 5 U.S.C. 605(b), the FRA Administrator certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities.
    This final rule will affect passenger railroads, but will have a 
beneficial effect, lessening the burden on any small railroad.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for profit ``linehaul railroad'' 
that has fewer than 1,500 employees, a ``short line railroad'' with 
fewer than 1,500 employees, or a ``commuter rail system'' with annual 
receipts of less than $15.0 million dollars. See ``Size Eligibility 
Provisions and Standards,'' 13 CFR part 121, subpart A. Additionally, 5 
U.S.C. 601(5) defines as ``small entities'' governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts with populations less than 50,000. Federal agencies may adopt 
their own size standards for small entities, in consultation with SBA 
and in conjunction with public comment. Pursuant to that authority, FRA 
has published a final statement of agency policy that formally 
establishes ``small entities'' or ``small businesses'' as being 
railroads, contractors, and hazardous

[[Page 63108]]

materials shippers that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less 
in inflation-adjusted annual revenues, and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891 (May 9, 2003), codified at appendix C to 49 CFR part 
209. The $20-million limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. FRA is using this definition for this 
rulemaking.
    For purposes of this analysis, this final rule will apply to 30 
commuter or other short-haul passenger railroads and two intercity 
passenger railroads, the National Railroad Passenger Corporation 
(Amtrak) and the Alaska Railroad Corporation (ARC). Neither is 
considered a small entity. Amtrak serves populations well in excess of 
50,000, and the ARC is owned by the State of Alaska, which has a 
population well in excess of 50,000.
    Based on the definition of ``small entity,'' only one passenger 
railroad is considered a small entity: The Hawkeye Express (operated by 
the Iowa Northern Railway Company). As the final rule is not 
significant, this final rule will merely provide this entity with 
additional compliance time without introducing any additional burden.
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601(b), the 
FRA Administrator hereby certifies that this final rule will not have a 
significant impact on a substantial number of small entities. A 
substantial number of small entities may be impacted by this 
regulation; however, any impact will be minimal and positive.

Paperwork Reduction Act

    There are no new collection of information requirements contained 
in this final rule and, in accordance with the Paperwork Reduction Act 
of 1995, 44 U.S.C. 3501 et seq., an information collection submission 
to the Office of Management and Budget (OMB) is not required. The 
record keeping and reporting requirements already contained in the SSP 
final rule were approved by OMB on October 5, 2016. The information 
collection requirements thereby became effective when they were 
approved by OMB. The OMB approval number is OMB No. 2130-0599, and OMB 
approval expires on October 31, 2019.

Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local governments 
or the agency consults with State and local government officials early 
in the process of developing the regulation. Where a regulation has 
federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. FRA has determined 
that this rule does not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. In addition, FRA has determined that this rule 
does not impose substantial direct compliance costs on State and local 
governments. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply.

Environmental Assessment

    FRA has evaluated this rule in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999) as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and related regulatory requirements. FRA has determined that this rule 
is not a major FRA action (requiring the preparation of an 
environmental impact statement or environmental assessment) because it 
is categorically excluded from detailed environmental review pursuant 
to section 4(c)(20) of FRA's Procedures. See 64 FR 28547, May 26, 1999.
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this rule is 
not a major Federal action significantly affecting the quality of the 
human environment.

Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law). Section 202 of the Act (2 
U.S.C. 1532) further requires that before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement detailing the 
effect on State, local, and tribal governments and the private sector. 
This final rule will not result in such an expenditure, and thus 
preparation of such a statement is not required.

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). FRA has evaluated this rule in accordance with 
Executive Order 13211 and has determined that this regulatory action is 
not a ``significant energy action'' within the meaning of Executive 
Order 13211.
    Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth,'' requires Federal agencies to review regulations to determine 
whether they potentially burden the development or use of domestically 
produced energy resources, with particular attention to oil, natural 
gas, coal, and nuclear energy resources. See 82 FR 16093 (Mar. 31, 
2017). FRA determined this regulatory action will not burden the 
development or use of

[[Page 63109]]

domestically produced energy resources.

List of Subjects in 49 CFR Part 270

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

    Authority: 49 U.S.C. 20103, 20106-20107, 20118-20119, 20156, 
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

    Issued in Washington, DC.
Mathew M. Sturges,
Deputy Administrator.

The Rule

0
In consideration of the foregoing, FRA extends the stay of the SSP 
final rule published August 12, 2016 (81 FR 53850) until September 4, 
2019.

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



                                           63106             Federal Register / Vol. 83, No. 235 / Friday, December 7, 2018 / Rules and Regulations

                                           the current calendar month/year and                     compliance began and (if applicable)                  Counsel; telephone: 202–493–1342;
                                           was last offered in January 2018 or                     ended with respect to each requirement.               email: Elizabeth.Gross@dot.gov.
                                           later).                                                   (4) Format. The Wireless                            SUPPLEMENTARY INFORMATION: On August
                                              (i) Reporting and certification                      Telecommunications Bureau is                          12, 2016, FRA published a final rule
                                           requirements—(1) Reporting and                          delegated authority to approve or                     requiring commuter and intercity
                                           certification dates. Manufacturers shall                prescribe formats and methods for                     passenger railroads to develop and
                                           submit reports on efforts toward                        submission of the reports and                         implement an SSP to improve the safety
                                           compliance with the requirements of                     certifications required by this section.              of their operations. See 81 FR 53850. On
                                           this section on an annual basis on July                 Any format that the Bureau may                        February 10, 2017, FRA stayed the SSP
                                           15. Service providers shall submit                      approve or prescribe shall be made                    final rule’s requirements until March 21,
                                           certifications on their compliance with                 available on the Bureau’s website.                    2017, consistent with the new
                                           the requirements of this section by                     *     *      *     *     *                            Administration’s guidance issued
                                           January 15 of each year. Information in                   (m) Compliance date. Paragraphs (e),                January 20, 2017, intended to provide
                                           each report and certification must be                   (h), and (i) of this section contain new              the Administration an adequate
                                           up-to-date as of the last day of the                    or modified information-collection and                opportunity to review new and pending
                                           calendar month preceding the due date                   recordkeeping requirements adopted in                 regulations. See 82 FR 10443 (Feb. 13,
                                           of each report and certification.                       FCC 18–167. Compliance with these                     2017). To provide additional time for
                                           *       *     *     *    *                              information-collection and                            that review, FRA extended the stay until
                                              (3) Content of service provider                      recordkeeping requirements will not be                May 22, 2017, June 5, 2017, December
                                           certifications. Certifications filed by                 required until after approval by the                  4, 2017, and then December 4, 2018. See
                                           service providers must include:                         Office of Management and Budget. The                  82 FR 14476 (Mar. 21, 2017); 82 FR
                                              (i) The name of the signing executive                Commission will publish a document in                 23150 (May 22, 2017); 82 FR 26359
                                           and contact information;                                the Federal Register announcing that                  (June 7, 2017); and 82 FR 56744 (Nov.
                                              (ii) The company(ies) covered by the                 compliance date and revising this                     30, 2017).1 In that November 2017
                                           certification;                                          paragraph accordingly.                                document, FRA stated that the stays of
                                              (iii) The FCC Registration Number                    [FR Doc. 2018–26037 Filed 12–6–18; 8:45 am]           the rule’s requirements did not affect
                                           (FRN);                                                  BILLING CODE 6712–01–P
                                                                                                                                                         the SSP final rule’s information
                                              (iv) If the service provider is subject                                                                    protection provisions in 49 CFR
                                           to paragraph (h) of this section, the                                                                         270.105, which took effect on August
                                           website address of the page(s)                                                                                14, 2017, for information a railroad
                                                                                                   DEPARTMENT OF TRANSPORTATION
                                           containing the required information                                                                           compiles or collects after that date
                                           regarding handset models;                               Federal Railroad Administration                       solely for SSP purposes.
                                              (v) The percentage of handsets offered                                                                        FRA’s review included petitions for
                                           that are hearing aid-compatible                         49 CFR Part 270                                       reconsideration of the SSP final rule
                                           (providers will derive this percentage by                                                                     (Petitions). Various rail labor
                                           determining the number of hearing aid-                  [Docket No. FRA–2011–0060, Notice No. 9]              organizations (Labor Organizations)
                                           compatible handsets offered across all                  RIN 2130–AC79                                         filed a single joint petition.2 State and
                                           air interfaces during the year divided by                                                                     local transportation departments and
                                           the total number of handsets offered                    System Safety Program                                 authorities (States) filed the three other
                                           during the year); and                                                                                         petitions, one of which was a joint
                                              (vi) The following language:                         AGENCY:  Federal Railroad                             petition (State Joint Petition).3 The State
                                                                                                   Administration (FRA), Department of                   Joint Petition requested that FRA stay
                                              I am a knowledgeable executive [of                   Transportation (DOT).
                                           company x] regarding compliance with the                                                                      the SSP final rule, and NCDOT
                                           Federal Communications Commission’s                     ACTION: Final rule; stay of regulations.              specifically requested that FRA stay the
                                           wireless hearing aid compatibility                                                                            rule while FRA was considering the
                                           requirements at a wireless service provider             SUMMARY:    On August 12, 2016, FRA
                                           covered by those requirements.                          published a final rule requiring                        1 FRA notes it inadvertently published two

                                              I certify that the provider was [(in full            commuter and intercity passenger                      notifications in the Federal Register identified as
                                           compliance/not in full compliance)] [choose             railroads to develop and implement a                  Notice No. 6 for this docket. See 82 FR 23150 (May
                                                                                                                                                         22, 2017), Docket No. FRA–2011–0060–0043; and
                                           one] at all times during the applicable time            system safety program (SSP) to improve                82 FR 26359 (June 7, 2017), Docket No. FRA–2011–
                                           period with the Commission’s wireless                   the safety of their operations. FRA has               0060–0044. Before identifying the duplication, FRA
                                           hearing aid compatibility deployment                    stayed the SSP final rule’s requirements              published a subsequent Notice No. 7. See 82 FR
                                           benchmarks and all other relevant wireless              until December 4, 2018. FRA is issuing                56744 (Nov. 30, 2017), Docket No. FRA–2011–
                                           hearing aid compatibility requirements.                                                                       0060–0047. FRA is numbering this document as
                                              The company represents and warrants, and
                                                                                                   this final rule to extend that stay until             Notice No. 9, to reflect that it is actually the ninth
                                           I certify by this declaration under penalty of          September 4, 2019.                                    notification published for this docket.
                                                                                                                                                           2 The labor organizations that filed the joint
                                           perjury pursuant to 47 CFR 1.16 that the                DATES: Effective December 4, 2018, the
                                                                                                                                                         petition are: The American Train Dispatchers
                                           above certification is consistent with 47 CFR           stay of 49 CFR part 270 is extended                   Association (ATDA), Brotherhood of Locomotive
                                           1.17, which requires truthful and accurate              until September 4, 2019.                              Engineers and Trainmen (BLET), Brotherhood of
                                           statements to the Commission. The company                                                                     Maintenance of Way Employes Division (BMWED),
                                                                                                   ADDRESSES: Docket: For access to the
                                           also acknowledges that false statements and                                                                   the Brotherhood of Railroad Signalmen (BRS),
                                           misrepresentations to the Commission are                docket to read background documents                   Brotherhood Railway Carmen Division (TCU/IAM),
                                           punishable under Title 18 of the U.S. Code              or comments received, go to http://                   and Transport Workers Union of America (TWU).
                                           and may subject it to enforcement action                www.regulations.gov and follow the                      3 The Capitol Corridor Joint Powers Authority
amozie on DSK3GDR082PROD with RULES




                                           pursuant to Sections 501 and 503 of the Act.            online instructions for accessing the                 (CCJPA), Indiana Department of Transportation
                                                                                                                                                         (INDOT), Northern New England Passenger Rail
                                             (vii) If the company selected that it                 docket.                                               Authority (NNEPRA), and San Joaquin Joint Powers
                                           was not in full compliance, an                          FOR FURTHER INFORMATION CONTACT:                      Authority (SJJPA) filed a joint petition (Joint
                                                                                                                                                         Petition). The North Carolina Department of
                                           explanation of which wireless hearing                   Elizabeth A. Gross, Attorney, U.S.                    Transportation (NCDOT) and State of Vermont
                                           aid compatibility requirements it was                   Department of Transportation, Federal                 Agency of Transportations (VTrans) each filed
                                           not in compliance with, when the non-                   Railroad Administration, Office of Chief              separate petitions.



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                                                             Federal Register / Vol. 83, No. 235 / Friday, December 7, 2018 / Rules and Regulations                                                            63107

                                           petitions. All Petitions were available                 rulemaking docket, proposed revisions                 past the 2017 stay extension, the
                                           for public comment in the docket for the                to the draft rule text. See FRA–2011–                 implementation date total costs, and the
                                           SSP rulemaking. On November 15,                         0060–0050. FRA is reviewing and                       cost savings from the additional nine-
                                           2016, the Massachusetts Department of                   considering these suggested revisions in              month implementation date delay.
                                           Transportation submitted a comment                      formulating its response to the petitions
                                                                                                                                                                                                  Present      Present
                                           supporting the State Joint Petition, also               for reconsideration.                                                                            value        value
                                           asking FRA to stay the SSP final rule.                    Given the request for a continued stay                                                        (7%)         (3%)
                                           FRA did not receive any public                          of the rule, the comment received
                                                                                                                                                         2016 Final Rule, total
                                           comments opposing the States’ requests                  supporting a stay, the lack of opposition               cost ..............................   $2,327,223   $3,412,649
                                           for a stay.                                             to a stay in either the comments or at                Cost savings from nine-
                                             On October 30, 2017, FRA met with                     the public RSAC meeting, and FRA’s                      month delay .................           246,360      255,928
                                           the Passenger Safety Working Group                      interest in addressing the issues raised              2016 Final Rule, total
                                           and the System Safety Task Group of the                                                                         cost with cost savings
                                                                                                   in the State petitions through notice and               from nine-month delay                  2,080,863    3,156,721
                                           Railroad Safety Advisory Committee                      comment rulemaking prior to requiring
                                           (RSAC) to discuss the Petitions and                     full compliance with the SSP final rule,              Regulatory Flexibility Act and Executive
                                           comments received in response to the                    FRA finds notice and comment for this                 Order 13272
                                           Petitions.4 FRA specifically invited its                stay to be impracticable and
                                           state partners to this meeting, which                   incompatible with the forthcoming                        The Regulatory Flexibility Act of
                                           was also open to the public. This                       NPRM.                                                 1980, 5 U.S.C. 601 et seq., and Executive
                                           meeting was necessary for FRA to                                                                              Order 13272, 67 FR 53461 (Aug. 16,
                                           receive input from industry and the                     Regulatory Impact and Notices                         2002), require agency review of
                                           public, and to discuss potential paths                  Executive Orders 12866 and 13771, and                 proposed and final rules to assess their
                                           forward to respond to the Petitions prior               DOT Regulatory Policies and Procedures                impact on small entities. An agency
                                           to FRA taking final action. During the                                                                        must prepare an Initial Regulatory
                                           meeting, a representative from the                         This final rule is a non-significant               Flexibility Analysis unless it determines
                                           Oregon Department of Transportation                     deregulatory action within the meaning                and certifies that a rule, if promulgated,
                                           asked whether the SSP final rule would                  of Executive Order 12866 and DOT                      would not have a significant impact on
                                           be further stayed pending FRA’s                         policies and procedures. See 44 FR                    a substantial number of small entities.
                                           development of a response to the                        11034 (Feb. 26, 1979. The final rule is               Pursuant to the Regulatory Flexibility
                                           Petitions and public input received at                  considered an E.O. 13771 deregulatory                 Act of 1980, 5 U.S.C. 605(b), the FRA
                                           the meeting. An FRA representative                      action. Details on the estimated cost                 Administrator certifies that this final
                                           indicated that he anticipated a further                 savings are below.                                    rule will not have a significant
                                           stay of the rule to provide time to                        In August 2016, FRA issued the                     economic impact on a substantial
                                           resolve the issues raised by the                        System Safety Program final rule (2016                number of small entities.
                                           petitions. None of the meeting                          Final Rule) as part of its efforts to                    This final rule will affect passenger
                                           participants expressed opposition to a                  continuously improve rail safety and to               railroads, but will have a beneficial
                                           further stay. See generally FRA–2011–                   satisfy the statutory mandate in sections             effect, lessening the burden on any
                                           0060–0046.                                              103 and 109 of the Rail Safety                        small railroad.
                                             In response to draft rule text FRA                    Improvement Act of 2008. The 2016                        ‘‘Small entity’’ is defined in 5 U.S.C.
                                           presented for discussion during the                     Final Rule requires passenger railroads               601 as including a small business
                                           RSAC meeting, the States indicated they                 to establish a program that                           concern that is independently owned
                                           would need an extended caucus to                        systematically evaluates railroad safety              and operated, and is not dominant in its
                                           discuss. On March 16, 2018, the                         risks and manages those risks with the                field of operation. The U.S. Small
                                           Executive Committee of the States for                   goal of reducing the number and rates                 Business Administration (SBA) has
                                           Passenger Rail Coalition (SPRC) 5                       of railroad accidents, incidents, injuries,           authority to regulate issues related to
                                           provided, and FRA uploaded to the                       and fatalities. Paperwork requirements                small businesses, and stipulates in its
                                                                                                   are the largest burden of the 2016 Final              size standards that a ‘‘small entity’’ in
                                             4 Attendees at the October 30, 2017, meeting          Rule.                                                 the railroad industry is a for profit
                                           included representatives from the following                FRA believes that this final rule,                 ‘‘linehaul railroad’’ that has fewer than
                                           organizations: ADS System Safety Consulting, LLC;       which will stay the requirements of the               1,500 employees, a ‘‘short line railroad’’
                                           American Association of State Highway and
                                           Transportation Officials (AASHTO); American             2016 Final Rule until September 4,                    with fewer than 1,500 employees, or a
                                           Public Transportation Association (APTA);               2019, will reduce regulatory burden on                ‘‘commuter rail system’’ with annual
                                           American Short Line and Regional Railroad               the railroad industry. By staying the                 receipts of less than $15.0 million
                                           Association (ASLRRA); ATDA; Association of              requirements of the 2016 Final Rule,                  dollars. See ‘‘Size Eligibility Provisions
                                           American Railroads (AAR); BLET; BMWED; BRS;
                                           CCJPA; The Fertilizer Institute; Gannett Fleming        railroads will realize a cost savings as              and Standards,’’ 13 CFR part 121,
                                           Transit and Rail Systems; International Brotherhood     railroads will not sustain any costs                  subpart A. Additionally, 5 U.S.C. 601(5)
                                           of Electrical Workers; Metropolitan Transportation      during the first nine months of this                  defines as ‘‘small entities’’ governments
                                           Authority (MTA); National Railroad Passenger            analysis. In addition, because this                   of cities, counties, towns, townships,
                                           Corporation (Amtrak); National Transportation
                                           Safety Board (NTSB); NCDOT; NNEPRA; San                 analysis discounts future costs and this              villages, school districts, or special
                                           Joaquin Regional Rail Commission/Altamont               final rule will move forward all costs by             districts with populations less than
                                           Corridor Express; Sheet Metal, Air, Rail, and           nine months, the present value costs of               50,000. Federal agencies may adopt
                                           Transportation Workers (SMART); and United              this stay will lower the present value                their own size standards for small
                                           States Department of Transportation—
                                                                                                   cost of the SSP rulemaking. FRA                       entities, in consultation with SBA and
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                                           Transportation Safety Institute. During the meeting,
                                           an attorney from Kaplan Kirsch & Rockwell, LLP          estimates this cost savings to be                     in conjunction with public comment.
                                           representing AASHTO indicated he was authorized         approximately $255,928, at a 3-percent                Pursuant to that authority, FRA has
                                           to speak on behalf of all the State petitioners.        discount rate, and $246,360, at a 7-                  published a final statement of agency
                                             5 SPRC’s website indicates it is an ‘‘alliance of

                                           State and Regional Transportation Officials,’’ and
                                                                                                   percent discount rate. The following                  policy that formally establishes ‘‘small
                                           each state petitioner appears to be an SPRC             table shows the 2016 Final Rule’s total               entities’’ or ‘‘small businesses’’ as being
                                           member. See https://www.s4prc.org/state-programs.       cost, delayed an additional nine months               railroads, contractors, and hazardous


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                                           63108             Federal Register / Vol. 83, No. 235 / Friday, December 7, 2018 / Rules and Regulations

                                           materials shippers that meet the revenue                Federalism Implications                               section 4(c)(20) of FRA’s Procedures.
                                           requirements of a Class III railroad as set                                                                   See 64 FR 28547, May 26, 1999.
                                           forth in 49 CFR 1201.1–1, which is $20                     Executive Order 13132, ‘‘Federalism’’                 In accordance with section 4(c) and
                                           million or less in inflation-adjusted                   (64 FR 43255, Aug. 10, 1999), requires                (e) of FRA’s Procedures, the agency has
                                           annual revenues, and commuter                           FRA to develop an accountable process                 further concluded that no extraordinary
                                           railroads or small governmental                         to ensure ‘‘meaningful and timely input               circumstances exist with respect to this
                                           jurisdictions that serve populations of                 by State and local officials in the                   regulation that might trigger the need for
                                                                                                   development of regulatory policies that               a more detailed environmental review.
                                           50,000 or less. See 68 FR 24891 (May 9,
                                                                                                   have federalism implications.’’ ‘‘Policies            As a result, FRA finds that this rule is
                                           2003), codified at appendix C to 49 CFR
                                                                                                   that have federalism implications’’ are               not a major Federal action significantly
                                           part 209. The $20-million limit is based
                                                                                                   defined in the Executive Order to                     affecting the quality of the human
                                           on the Surface Transportation Board’s
                                                                                                   include regulations that have                         environment.
                                           revenue threshold for a Class III
                                                                                                   ‘‘substantial direct effects on the States,
                                           railroad. Railroad revenue is adjusted                  on the relationship between the national              Unfunded Mandates Reform Act of 1995
                                           for inflation by applying a revenue                     government and the States, or on the                     Pursuant to section 201 of the
                                           deflator formula in accordance with 49                  distribution of power and                             Unfunded Mandates Reform Act of 1995
                                           CFR 1201.1–1. FRA is using this                         responsibilities among the various                    (Pub. L. 104–4, 2 U.S.C. 1531), each
                                           definition for this rulemaking.                         levels of government.’’ Under Executive               Federal agency shall, unless otherwise
                                              For purposes of this analysis, this                  Order 13132, the agency may not issue                 prohibited by law, assess the effects of
                                           final rule will apply to 30 commuter or                 a regulation with federalism                          Federal regulatory actions on State,
                                           other short-haul passenger railroads and                implications that imposes substantial                 local, and tribal governments, and the
                                           two intercity passenger railroads, the                  direct compliance costs and that is not               private sector (other than to the extent
                                           National Railroad Passenger Corporation                 required by statute, unless the Federal               that such regulations incorporate
                                           (Amtrak) and the Alaska Railroad                        government provides the funds                         requirements specifically set forth in
                                           Corporation (ARC). Neither is                           necessary to pay the direct compliance                law). Section 202 of the Act (2 U.S.C.
                                           considered a small entity. Amtrak serves                costs incurred by State and local                     1532) further requires that before
                                           populations well in excess of 50,000,                   governments or the agency consults                    promulgating any general notice of
                                           and the ARC is owned by the State of                    with State and local government                       proposed rulemaking that is likely to
                                           Alaska, which has a population well in                  officials early in the process of                     result in the promulgation of any rule
                                           excess of 50,000.                                       developing the regulation. Where a                    that includes any Federal mandate that
                                                                                                   regulation has federalism implications                may result in expenditure by State,
                                              Based on the definition of ‘‘small                                                                         local, and tribal governments, in the
                                                                                                   and preempts State law, the agency
                                           entity,’’ only one passenger railroad is                                                                      aggregate, or by the private sector, of
                                                                                                   seeks to consult with State and local
                                           considered a small entity: The Hawkeye                                                                        $100,000,000 or more (adjusted
                                                                                                   officials in the process of developing the
                                           Express (operated by the Iowa Northern                                                                        annually for inflation) in any 1 year, and
                                                                                                   regulation.
                                           Railway Company). As the final rule is                                                                        before promulgating any final rule for
                                           not significant, this final rule will                      This final rule has been analyzed in
                                                                                                                                                         which a general notice of proposed
                                           merely provide this entity with                         accordance with the principles and
                                                                                                                                                         rulemaking was published, the agency
                                           additional compliance time without                      criteria contained in Executive Order
                                                                                                                                                         shall prepare a written statement
                                           introducing any additional burden.                      13132. FRA has determined that this
                                                                                                                                                         detailing the effect on State, local, and
                                                                                                   rule does not have substantial direct
                                              Pursuant to the Regulatory Flexibility                                                                     tribal governments and the private
                                                                                                   effects on the States, on the relationship
                                           Act, 5 U.S.C. 601(b), the FRA                                                                                 sector. This final rule will not result in
                                                                                                   between the national government and
                                           Administrator hereby certifies that this                                                                      such an expenditure, and thus
                                                                                                   the States, or on the distribution of
                                           final rule will not have a significant                                                                        preparation of such a statement is not
                                                                                                   power and responsibilities among the
                                           impact on a substantial number of small                                                                       required.
                                                                                                   various levels of government. In
                                           entities. A substantial number of small                 addition, FRA has determined that this                Energy Impact
                                           entities may be impacted by this                        rule does not impose substantial direct                 Executive Order 13211 requires
                                           regulation; however, any impact will be                 compliance costs on State and local                   Federal agencies to prepare a Statement
                                           minimal and positive.                                   governments. Therefore, the                           of Energy Effects for any ‘‘significant
                                           Paperwork Reduction Act                                 consultation and funding requirements                 energy action.’’ 66 FR 28355 (May 22,
                                                                                                   of Executive Order 13132 do not apply.                2001). FRA has evaluated this rule in
                                             There are no new collection of                                                                              accordance with Executive Order 13211
                                                                                                   Environmental Assessment
                                           information requirements contained in                                                                         and has determined that this regulatory
                                           this final rule and, in accordance with                   FRA has evaluated this rule in                      action is not a ‘‘significant energy
                                           the Paperwork Reduction Act of 1995,                    accordance with its ‘‘Procedures for                  action’’ within the meaning of Executive
                                           44 U.S.C. 3501 et seq., an information                  Considering Environmental Impacts’’                   Order 13211.
                                           collection submission to the Office of                  (FRA’s Procedures) (64 FR 28545, May                    Executive Order 13783, ‘‘Promoting
                                           Management and Budget (OMB) is not                      26, 1999) as required by the National                 Energy Independence and Economic
                                           required. The record keeping and                        Environmental Policy Act (42 U.S.C.                   Growth,’’ requires Federal agencies to
                                           reporting requirements already                          4321 et seq.), other environmental                    review regulations to determine whether
                                           contained in the SSP final rule were                    statutes, Executive Orders, and related               they potentially burden the
                                           approved by OMB on October 5, 2016.                     regulatory requirements. FRA has                      development or use of domestically
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                                           The information collection requirements                 determined that this rule is not a major              produced energy resources, with
                                           thereby became effective when they                      FRA action (requiring the preparation of              particular attention to oil, natural gas,
                                           were approved by OMB. The OMB                           an environmental impact statement or                  coal, and nuclear energy resources. See
                                           approval number is OMB No. 2130–                        environmental assessment) because it is               82 FR 16093 (Mar. 31, 2017). FRA
                                           0599, and OMB approval expires on                       categorically excluded from detailed                  determined this regulatory action will
                                           October 31, 2019.                                       environmental review pursuant to                      not burden the development or use of


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                                                             Federal Register / Vol. 83, No. 235 / Friday, December 7, 2018 / Rules and Regulations                                              63109

                                           domestically produced energy                              Issued in Washington, DC.                           published August 12, 2016 (81 FR
                                           resources.                                              Mathew M. Sturges,                                    53850) until September 4, 2019.
                                           List of Subjects in 49 CFR Part 270                     Deputy Administrator.                                 [FR Doc. 2018–26447 Filed 12–4–18; 8:45 am]
                                                                                                                                                         BILLING CODE 4910–06–P
                                             Penalties, Railroad safety, Reporting                 The Rule
                                           and recordkeeping requirements,
                                           System safety.                                          ■ In consideration of the foregoing, FRA
                                             Authority: 49 U.S.C. 20103, 20106–20107,              extends the stay of the SSP final rule
                                           20118–20119, 20156, 21301, 21304, 21311;
                                           28 U.S.C. 2461, note; and 49 CFR 1.89.
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Document Created: 2018-12-07 01:52:36
Document Modified: 2018-12-07 01:52:36
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule; stay of regulations.
DatesEffective December 4, 2018, the stay of 49 CFR part 270 is extended until September 4, 2019.
ContactElizabeth A. Gross, Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel; telephone: 202-493-1342; email: [email protected]
FR Citation83 FR 63106 
RIN Number2130-AC79
CFR AssociatedPenalties; Railroad Safety; Reporting and Recordkeeping Requirements and System Safety

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