83 FR 9219 - Monetary Threshold for Reporting Rail Equipment Accidents/Incidents for Calendar Year 2018
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration Federal Register Volume 83, Issue 43 (March 5, 2018)
Federal Railroad Administration
Federal Register Volume 83, Issue 43 (March 5, 2018)
| Page Range | 9219-9222 | |
| FR Document | 2018-04349 |
[Federal Register Volume 83, Number 43 (Monday, March 5, 2018)] [Rules and Regulations] [Pages 9219-9222] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-04349] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 225 [FRA-2008-0136, Notice No. 10] RIN 2130-ZA16 Monetary Threshold for Reporting Rail Equipment Accidents/ Incidents for Calendar Year 2018 AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: FRA's accident/incident reporting regulations require railroads to report to the agency all rail equipment accidents/ incidents above the monetary reporting threshold (reporting threshold) for that calendar year (CY). There is no change to the CY 2017 reporting threshold ($10,700) for CY 2018 as the overall increase in wages and equipment costs were not great enough to cause the threshold to change when rounded to the nearest $100. DATES: This final rule is effective March 5, 2018. This final rule is applicable January 1, 2018. FOR FURTHER INFORMATION CONTACT: Kebo Chen, Staff Director, U.S. Department of Transportation, Federal Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room W33-314, 1200 New Jersey Ave. SE, Washington, DC 20590 (telephone 202- 493-6079); or Senya Waas, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, RCC-10, West Building 3rd Floor, Room W31-223, 1200 New Jersey Ave. SE, Washington, DC 20590 (telephone 202-493-0665). SUPPLEMENTARY INFORMATION: Background A ``rail equipment accident/incident'' is a collision, derailment, fire, explosion, act of God, or other event involving the operation of railroad on-track equipment (standing or moving) that results in damages to railroad on-track equipment, signals, tracks, track structures, or roadbed, including labor costs and the costs for acquiring new equipment and material, greater than the reporting threshold for the year in which the event occurs. See 49 CFR 225.19(c). A railroad must report each rail equipment accident/incident to FRA using the Rail Equipment Accident/Incident Report (Form FRA F 6180.54). See 49 CFR 225.19(b), (c), 225.21(a). Paragraphs (c) and (e) of 49 CFR 225.19 further provide that FRA will adjust the dollar figure constituting the reporting threshold, if necessary, every year under the procedures in 49 CFR part 225 Appendix B to reflect any cost increases or decreases. Approximately one year has passed since FRA reviewed the reporting threshold. See 81 FR 94271, Dec. 23, 2016. Consequently, FRA has recalculated the reporting threshold under 49 CFR 225.19(c), using updated costs for labor and equipment. FRA has determined the current reporting threshold of $10,700, which applies to rail equipment accidents/incidents that occur during CY 2017, should remain the same for rail equipment accidents/incidents that occur during CY 2018. The specific inputs to the equation set forth in Appendix B (Tnew = Tprior * [1 + 0.4(Wnew - Wprior)/Wprior + 0.6(Enew - Eprior)/100]) are: ---------------------------------------------------------------------------------------------------------------- Tprior Wnew Wprior Enew Eprior ---------------------------------------------------------------------------------------------------------------- $10,700 $29.77918 $29.99942 203.83333 203.33333 ---------------------------------------------------------------------------------------------------------------- Where: Tnew = New threshold; Tprior = Prior threshold (with reference to the threshold, ``prior'' refers to the previous threshold rounded to the nearest $100, as reported in the Federal Register); Wnew = New average hourly wage rate, in dollars; Wprior = Prior average hourly wage rate, in dollars; Enew = New equipment average Producer Price Index (PPI) value; Eprior = Prior equipment average PPI value. See 49 CFR part 225 Appendix B. Using the above figures, the calculated new threshold, represented as Tnew, is $10,700.64, which is rounded to the nearest $100 for a final reporting threshold of $10,700 for CY 2018.\1\ --------------------------------------------------------------------------- \1\ Wage statistics are available from the Surface Transportation Board (STB), ``Quarterly Wage Form A&B,'' at https://www.stb.gov/stb/industry/econ_reports.html (visited December 5, 2017). The average hourly wage rate is determined by dividing the compensation for time worked at straight time rates by the service hours worked at straight time rates (yielding dollars per hour). FRA averages the second-quarter data reported for the Group No. 300 Maintenance of Way and Structures employees, and the Group No. 400 Maintenance of Equipment and Stores employees. The equipment PPI is available at the Bureau of Labor Statistics (BLS), U.S. Department of Labor, ``PPI Databases: Commodity Data,' at https://www.bls.gov/ppi/ (visited December 5, 2017). Select Group 14 Transportation Equipment, then Item 144 Railroad Equipment, followed by checking Not Seasonally Adjusted. The complete Series ID is WPU144, base date 1982. --------------------------------------------------------------------------- FRA intends to publish a rulemaking (RIN 2130-AC49) to reexamine its method for calculating the reporting threshold in 2018 because more accurate methodologies for calculating the threshold are available. FRA believes updating its methodology will ensure the reporting threshold reflects changes in equipment and labor costs as accurately as possible. [[Page 9220]] Notice and Comment Procedures FRA is proceeding directly to a final rule as it finds public notice and comment to be unnecessary per the ``good cause'' exemption in 5 U.S.C. 553(b)(3)(B). FRA made this finding because it: (1) Is required under current regulations to establish the monetary reporting threshold; (2) Is utilizing a formula developed after notice and comment in a final rule published in 2005 (70 FR 75414, Dec. 20, 2005); and (3) is not exercising any discretion in calculating and applying the monetary threshold for 2018. Regulatory Evaluation Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures FRA evaluated this final rule under existing policies and procedures, and determined it is non-significant under both Executive Orders 12866 and 13563, and DOT policies and procedures. See 44 FR 11034, Feb. 26, 1979. Furthermore, this final rule is exempt from the regulatory budgeting and two-for-one requirements of Executive Order 13771 as it has been determined to be non-significant. Regulatory Flexibility Act FRA developed this rule under Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (RFA) to ensure potential impacts of rules on small entities are properly considered. See E.O. 13272; 5 U.S.C. 601. The RFA requires an agency to review regulations to assess their impact on small entities, unless the Secretary certifies the rule will not have a significant economic impact on a substantial number of small entities. Under Section 312 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), Federal agencies may adopt their own size standards for small entities in consultation with both the Small Business Administration and public comment. Under that authority, FRA has published a final statement of agency policy formally establishing, for FRA's regulatory purposes, that ``small entities'' are railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1-1 ($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 49 CFR part 209 Appendix C. FRA used this definition for the current rulemaking. About 748 of the approximately 799 railroads in the United States are considered small entities by FRA. FRA certifies this final rule will have no significant economic impact on a substantial number of small entities. To the extent this rule has any impact on small entities, the impact will be neutral or insignificant. The frequency of rail equipment accidents/incidents, and therefore also the frequency of required reporting, is generally proportional to the size of the railroad. A railroad employing thousands of employees and operating trains millions of miles is exposed to greater risks than one with a substantially smaller operation. Small railroads may go for months at a time without having a reportable occurrence of any type, and even longer without having a rail equipment accident/incident. Class III reported rail equipment accidents/incidents for a five-year period are shown below. Rail Equipment Accident/Incidents (Train Accidents) Reported by Small Railroads ---------------------------------------------------------------------------------------------------------------- Percent Class III train Year Class III train All railroad accidents/all accidents train accidents railroad train accidents ---------------------------------------------------------------------------------------------------------------- 2012................................................... 289 1,766 16 2013................................................... 307 1,853 17 2014................................................... 272 1,887 14 2015................................................... 288 1,936 15 2016................................................... 249 1,646 15 ---------------------------------------------------------------------------------------------------------------- Source: FRA Safety Data website at http://safetydata.fra.dot.gov/OfficeofSafety/Default.aspx (visited December 8, 2017), Agency query. On average over those five calendar years, small railroads reported about 15% (ranging from 14% to 17%) of the total number of rail equipment accidents/incidents. FRA notes that these data are subject to minor changes due to additional reporting. The monetary reporting threshold, when rounded, did not increase for CY 2018. In general, however, absent this rulemaking (i.e., absent increasing the reporting threshold in future years), the number of reportable accidents/incidents in future years would likely increase, as keeping the same threshold in place would not allow it to keep pace with the likely increases in wages and rail equipment repair costs. (Note that the calculated monetary threshold (before rounding) for CY 2017 was $10,698 versus $10,701 for CY 2018.) Therefore, this rule will be neutral in effect (i.e., accidents/incidents reportable by railroads in CY 2017 will be reportable in CY 2018). Any recordkeeping burden will not be significant, and will affect the large railroads more than the small railroads due to the higher proportion of reportable rail equipment accidents/incidents experienced by large entities. Furthermore, FRA has determined the RFA does not apply to this rulemaking. As this rule updates the reporting threshold for CY 2018 using the formula developed through notice and comment rulemaking and published in Appendix B to 49 CFR part 225, FRA finds notice and public comment is unnecessary and would serve no public benefit. The Small Business Administration's A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act, p. 55 (2017) provides: If, under the APA or any rule of general applicability governing federal grants to state and local governments, the agency is required to publish a general notice of proposed rulemaking (NPRM), the RFA must be considered [citing 5 U.S.C. 604(a)] . . . . If an NPRM is not required, the RFA does not apply. As this rulemaking does not require a Notice of Proposed Rulemaking, the RFA does not apply. Paperwork Reduction Act There are no new or additional information collection requirements associated with this final rule. FRA's collection of accident/incident reporting and recordkeeping information is currently approved under OMB No. [[Page 9221]] 2130-0500. Therefore, FRA is not required to provide an estimate of a public reporting burden in this document. Federalism Implications Executive Order 13132 (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.'' See E.O. 13132. Policies that have federalism implications are defined in Executive Order 13132 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.'' See E.O. 13132. 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. See E.O. 13132. 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 analyzed this final rule under the principles and criteria in Executive Order 13132. This rule will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and the responsibilities among the various levels of government. See Executive Order 13132. In addition, FRA determined this rule does not impose substantial direct compliance costs on State and local governments. Accordingly, FRA concluded the consultation and funding requirements of Executive Order 13132 do not apply, and preparation of a federalism assessment is not required. Environmental Impact FRA evaluated this final rule under its Procedures for Considering Environmental Impacts (FRA Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined this final rule is not a major FRA action requiring the preparation of an environmental impact statement or environmental assessment because it is categorically excluded from detailed environmental review under FRA Procedures Section 4(c)(20), which addresses the promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions of air or water pollutants or noise or increased traffic congestion in any mode of transportation. See 64 FR 28547, May 26, 1999. Consistent with FRA Procedures Section 4(c)(20), FRA 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 this rule is not a major Federal action that significantly affects the quality of the human environment. Unfunded Mandates Reform Act of 1995 Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Reform Act) (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). See 2 U.S.C. 1531 Section 201. Section 202 of the Reform Act (2 U.S.C. 1532) further requires each agency to prepare a comprehensive written statement for any proposed or final rule that includes a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year . . . .\2\ --------------------------------------------------------------------------- \2\ See U.S. Department of Transportation, ``Guidance--Threshold of Significant Regulatory Actions under the Unfunded Mandates Reform Act of 1995,'' April 4, 2016, https://www.transportation.gov/office-policy/transportation-policy/threshold-significant-regulatory-actions-under-unfunded-mandat-0, as accessed December 12, 2017. --------------------------------------------------------------------------- This final rule will not result in the expenditure of more than $156,000,000 (the value equivalent of $100,000,000 in 2015 dollars) by the public sector in any one year. 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. Under Executive Order 13211, 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 a 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) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. See E.O. 13211. FRA has evaluated this rule under Executive Order 13211. FRA has determined this rule will not have a significant adverse effect on the supply, distribution, or use of energy, and, thus, is not a ``significant energy action'' under Executive Order 13211. Privacy Act In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to www.regulations.gov, as described in the system of records notice, DOT/ALL-14 FDMS, accessible through www.dot.gov/privacy. In order to facilitate comment tracking and response, FRA encourages commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered. If one wishes to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions. List of Subjects in 49 CFR Part 225 Investigations, Penalties, Railroad safety, Reporting and recordkeeping requirements. The Rule In consideration of the foregoing, FRA amends part 225 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows: PART 225-[AMENDED] 0 1. The authority citation for part 225 continues to read as follows: Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89. 0 2. In Sec. 225.19, revise the first sentence of paragraph (c), and paragraph (e) to read as follows: [[Page 9222]] Sec. 225.19 Primary groups of accidents/incidents. * * * * * (c) Group II--Rail equipment. Rail equipment accidents/incidents are collisions, derailments, fires, explosions, acts of God, and other events involving the operation of on-track equipment (standing or moving) that result in damages higher than the current reporting threshold (i.e., $6,700 for calendar years 2002 through 2005, $7,700 for calendar year 2006, $8,200 for calendar year 2007, $8,500 for calendar year 2008, $8,900 for calendar year 2009, $9,200 for calendar year 2010, $9,400 for calendar year 2011, $9,500 for calendar year 2012, $9,900 for calendar year 2013, $10,500 for calendar year 2014, $10,500 for calendar year 2015, $10,500 for calendar year 2016, and $10,700 for calendar years 2017 and beyond, until revised) to railroad on-track equipment, signals, tracks, track structures, or roadbed, including labor costs and the costs for acquiring new equipment and material. * * * * * (e) The reporting threshold is $6,700 for calendar years 2002 through 2005, $7,700 for calendar year 2006, $8,200 for calendar year 2007, $8,500 for calendar year 2008, $8,900 for calendar year 2009, $9,200 for calendar year 2010, $9,400 for calendar year 2011, $9,500 for calendar year 2012, $9,900 for calendar year 2013, $10,500 for calendar year 2014, $10,500 for calendar year 2015, $10,500 for calendar year 2016, and $10,700 for calendar years 2017 and beyond, until revised. The procedure for determining the reporting threshold for calendar years 2006 and beyond appears as paragraphs 1-8 of appendix B to part 225. * * * * * Juan D. Reyes, III, Chief Counsel. [FR Doc. 2018-04349 Filed 3-2-18; 8:45 am] BILLING CODE 4910-06-P
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by reference as specified in § 63.14) as DEPARTMENT OF TRANSPORTATION Washington, DC 20590 (telephone 202–
described in paragraph (a)(46)(i)(A) of 493–0665).
this section: Federal Railroad Administration SUPPLEMENTARY INFORMATION:
(A) The material incorporated into the Background
49 CFR Part 225
Vermont Air Pollution Regulations at
Chapter 5, Air Pollution Control, section [FRA–2008–0136, Notice No. 10] A ‘‘rail equipment accident/incident’’
5–253.11, Perchloroethylene Dry is a collision, derailment, fire,
RIN 2130–ZA16 explosion, act of God, or other event
Cleaning (effective as of December 15,
2016) pertaining to area source dry Monetary Threshold for Reporting Rail involving the operation of railroad on-
Equipment Accidents/Incidents for track equipment (standing or moving)
cleaning facilities in the State of
Calendar Year 2018 that results in damages to railroad on-
Vermont jurisdiction, and approved
track equipment, signals, tracks, track
under the procedures in § 63.93 to be AGENCY: Federal Railroad structures, or roadbed, including labor
implemented and enforced in place of Administration (FRA), Department of costs and the costs for acquiring new
the requirements for area source dry Transportation (DOT). equipment and material, greater than
cleaning facilities in the Federal ACTION: Final rule. the reporting threshold for the year in
NESHAP for Perchloroethylene Dry which the event occurs. See 49 CFR
Cleaning Facilities (subpart M of this SUMMARY: FRA’s accident/incident 225.19(c). A railroad must report each
part), effective as of July 11, 2008. For reporting regulations require railroads to rail equipment accident/incident to FRA
purposes of this paragraph (a)(46) the report to the agency all rail equipment using the Rail Equipment Accident/
term ‘‘area source dry cleaning accidents/incidents above the monetary Incident Report (Form FRA F 6180.54).
facilities’’ means any source that reporting threshold (reporting See 49 CFR 225.19(b), (c), 225.21(a).
qualifies as an area source under threshold) for that calendar year (CY). Paragraphs (c) and (e) of 49 CFR 225.19
§ 63.320(h). There is no change to the CY 2017 further provide that FRA will adjust the
reporting threshold ($10,700) for CY dollar figure constituting the reporting
(1) Authorities not delegated. (i) 2018 as the overall increase in wages
Vermont is not delegated the threshold, if necessary, every year under
and equipment costs were not great the procedures in 49 CFR part 225
Administrator’s authority to implement enough to cause the threshold to change Appendix B to reflect any cost increases
and enforce Vermont Air Pollution when rounded to the nearest $100. or decreases.
Control Regulations, Chapter 5, Air DATES: This final rule is effective March Approximately one year has passed
Pollution Control, section 5–253.11, in 5, 2018. This final rule is applicable since FRA reviewed the reporting
lieu of those provisions of subpart M of January 1, 2018. threshold. See 81 FR 94271, Dec. 23,
this part which apply to major sources, FOR FURTHER INFORMATION CONTACT: 2016. Consequently, FRA has
as defined in § 63.320(g). Kebo Chen, Staff Director, U.S. recalculated the reporting threshold
(ii) [Reserved] Department of Transportation, Federal under 49 CFR 225.19(c), using updated
(2) [Reserved] Railroad Administration, Office of costs for labor and equipment. FRA has
Safety Analysis, RRS–22, Mail Stop 25, determined the current reporting
(B) [Reserved] West Building 3rd Floor, Room W33– threshold of $10,700, which applies to
(ii) [Reserved] 314, 1200 New Jersey Ave. SE, rail equipment accidents/incidents that
* * * * * Washington, DC 20590 (telephone 202– occur during CY 2017, should remain
[FR Doc. 2018–04277 Filed 3–2–18; 8:45 am] 493–6079); or Senya Waas, Trial the same for rail equipment accidents/
BILLING CODE 6560–50–P Attorney, U.S. Department of incidents that occur during CY 2018.
Transportation, Federal Railroad The specific inputs to the equation set
Administration, Office of Chief Counsel, forth in Appendix B (Tnew = Tprior *
RCC–10, West Building 3rd Floor, Room [1 + 0.4(Wnew ¥ Wprior)/Wprior +
W31–223, 1200 New Jersey Ave. SE, 0.6(Enew ¥ Eprior)/100]) are:
Tprior Wnew Wprior Enew Eprior
$10,700 $29.77918 $29.99942 203.83333 203.33333
Where: $10,700.64, which is rounded to the FRA intends to publish a rulemaking
Tnew = New threshold; nearest $100 for a final reporting (RIN 2130–AC49) to reexamine its
Tprior = Prior threshold (with reference to threshold of $10,700 for CY 2018.1 method for calculating the reporting
the threshold, ‘‘prior’’ refers to the threshold in 2018 because more
previous threshold rounded to the 1 Wage statistics are available from the Surface
nearest $100, as reported in the Federal
accurate methodologies for calculating
Transportation Board (STB), ‘‘Quarterly Wage Form
Register); A&B,’’ at https://www.stb.gov/stb/industry/econ_ the threshold are available. FRA
Wnew = New average hourly wage rate, in reports.html (visited December 5, 2017). The believes updating its methodology will
dollars; average hourly wage rate is determined by dividing ensure the reporting threshold reflects
Wprior = Prior average hourly wage rate, in the compensation for time worked at straight time
changes in equipment and labor costs as
sradovich on DSK3GMQ082PROD with RULES
rates by the service hours worked at straight time
dollars; rates (yielding dollars per hour). FRA averages the accurately as possible.
Enew = New equipment average Producer second-quarter data reported for the Group No. 300
Price Index (PPI) value; Maintenance of Way and Structures employees, and
Eprior = Prior equipment average PPI value. the Group No. 400 Maintenance of Equipment and www.bls.gov/ppi/ (visited December 5, 2017). Select
Stores employees. Group 14 Transportation Equipment, then Item 144
See 49 CFR part 225 Appendix B. Using The equipment PPI is available at the Bureau of Railroad Equipment, followed by checking Not
the above figures, the calculated new Labor Statistics (BLS), U.S. Department of Labor, Seasonally Adjusted. The complete Series ID is
threshold, represented as Tnew, is ‘‘PPI Databases: Commodity Data,’ at https:// WPU144, base date 1982.
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Notice and Comment Procedures Regulatory Flexibility Act 1 ($20 million or less in inflation-
FRA developed this rule under adjusted annual revenues, and
FRA is proceeding directly to a final commuter railroads or small
rule as it finds public notice and Executive Order 13272, Proper
Consideration of Small Entities in governmental jurisdictions that serve
comment to be unnecessary per the populations of 50,000 or less). See 49
Agency Rulemaking, and DOT’s
‘‘good cause’’ exemption in 5 U.S.C. CFR part 209 Appendix C. FRA used
procedures and policies to promote
553(b)(3)(B). FRA made this finding this definition for the current
compliance with the Regulatory
because it: (1) Is required under current Flexibility Act (RFA) to ensure potential rulemaking.
regulations to establish the monetary impacts of rules on small entities are About 748 of the approximately 799
reporting threshold; (2) Is utilizing a properly considered. See E.O. 13272; 5 railroads in the United States are
formula developed after notice and U.S.C. 601. considered small entities by FRA. FRA
comment in a final rule published in The RFA requires an agency to review certifies this final rule will have no
2005 (70 FR 75414, Dec. 20, 2005); and regulations to assess their impact on significant economic impact on a
(3) is not exercising any discretion in small entities, unless the Secretary substantial number of small entities. To
calculating and applying the monetary certifies the rule will not have a the extent this rule has any impact on
threshold for 2018. significant economic impact on a small entities, the impact will be neutral
substantial number of small entities. or insignificant. The frequency of rail
Regulatory Evaluation
Under Section 312 of the Small equipment accidents/incidents, and
Executive Orders 12866 and 13563 and Business Regulatory Enforcement therefore also the frequency of required
DOT Regulatory Policies and Procedures Fairness Act of 1996 (Public Law 104– reporting, is generally proportional to
121), Federal agencies may adopt their the size of the railroad. A railroad
FRA evaluated this final rule under own size standards for small entities in employing thousands of employees and
existing policies and procedures, and consultation with both the Small operating trains millions of miles is
determined it is non-significant under Business Administration and public exposed to greater risks than one with
both Executive Orders 12866 and 13563, comment. Under that authority, FRA a substantially smaller operation. Small
and DOT policies and procedures. See has published a final statement of railroads may go for months at a time
44 FR 11034, Feb. 26, 1979. agency policy formally establishing, for without having a reportable occurrence
Furthermore, this final rule is exempt FRA’s regulatory purposes, that ‘‘small of any type, and even longer without
from the regulatory budgeting and two- entities’’ are railroads, contractors, and having a rail equipment accident/
for-one requirements of Executive Order hazardous materials shippers that meet incident. Class III reported rail
13771 as it has been determined to be the revenue requirements of a Class III equipment accidents/incidents for a
non-significant. railroad as set forth in 49 CFR 1201.1– five-year period are shown below.
RAIL EQUIPMENT ACCIDENT/INCIDENTS (TRAIN ACCIDENTS) REPORTED BY SMALL RAILROADS
Percent
Class III train
Class III train All railroad train
Year accidents/all
accidents accidents railroad train
accidents
2012 ........................................................................................................................... 289 1,766 16
2013 ........................................................................................................................... 307 1,853 17
2014 ........................................................................................................................... 272 1,887 14
2015 ........................................................................................................................... 288 1,936 15
2016 ........................................................................................................................... 249 1,646 15
Source: FRA Safety Data website at http://safetydata.fra.dot.gov/OfficeofSafety/Default.aspx (visited December 8, 2017), Agency query.
On average over those five calendar Therefore, this rule will be neutral in Comply with the Regulatory Flexibility
years, small railroads reported about effect (i.e., accidents/incidents Act, p. 55 (2017) provides:
15% (ranging from 14% to 17%) of the reportable by railroads in CY 2017 will If, under the APA or any rule of general
total number of rail equipment be reportable in CY 2018). Any applicability governing federal grants to state
accidents/incidents. FRA notes that recordkeeping burden will not be and local governments, the agency is
these data are subject to minor changes significant, and will affect the large required to publish a general notice of
due to additional reporting. railroads more than the small railroads proposed rulemaking (NPRM), the RFA must
The monetary reporting threshold, due to the higher proportion of be considered [citing 5 U.S.C. 604(a)] . . . .
when rounded, did not increase for CY reportable rail equipment accidents/ If an NPRM is not required, the RFA does not
2018. In general, however, absent this incidents experienced by large entities. apply.
rulemaking (i.e., absent increasing the Furthermore, FRA has determined the As this rulemaking does not require a
reporting threshold in future years), the RFA does not apply to this rulemaking. Notice of Proposed Rulemaking, the
number of reportable accidents/ As this rule updates the reporting RFA does not apply.
incidents in future years would likely threshold for CY 2018 using the formula
sradovich on DSK3GMQ082PROD with RULES
increase, as keeping the same threshold developed through notice and comment Paperwork Reduction Act
in place would not allow it to keep pace rulemaking and published in Appendix There are no new or additional
with the likely increases in wages and B to 49 CFR part 225, FRA finds notice information collection requirements
rail equipment repair costs. (Note that and public comment is unnecessary and associated with this final rule. FRA’s
the calculated monetary threshold would serve no public benefit. The collection of accident/incident reporting
(before rounding) for CY 2017 was Small Business Administration’s A and recordkeeping information is
$10,698 versus $10,701 for CY 2018.) Guide for Government Agencies: How to currently approved under OMB No.
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2130–0500. Therefore, FRA is not FRA action requiring the preparation of published in the Federal Register) that
required to provide an estimate of a an environmental impact statement or promulgates, or is expected to lead to
public reporting burden in this environmental assessment because it is the promulgation of, a final rule or
document. categorically excluded from detailed regulation (including a notice of
environmental review under FRA inquiry, advance notice of proposed
Federalism Implications
Procedures Section 4(c)(20), which rulemaking, and notice of proposed
Executive Order 13132 (64 FR 43255, addresses the promulgation of railroad rulemaking) that: (1)(i) Is a significant
Aug. 10, 1999) requires FRA to develop safety rules and policy statements that regulatory action under Executive Order
an accountable process to ensure do not result in significantly increased 12866 or any successor order, and (ii) is
‘‘meaningful and timely input by State emissions of air or water pollutants or likely to have a significant adverse effect
and local officials in the development of noise or increased traffic congestion in on the supply, distribution, or use of
regulatory policies that have federalism any mode of transportation. See 64 FR energy; or (2) is designated by the
implications.’’ See E.O. 13132. Policies 28547, May 26, 1999. Administrator of the Office of
that have federalism implications are Consistent with FRA Procedures Information and Regulatory Affairs as a
defined in Executive Order 13132 to Section 4(c)(20), FRA concluded that no significant energy action. See E.O.
include regulations that have extraordinary circumstances exist with 13211. FRA has evaluated this rule
‘‘substantial direct effects on the States, respect to this regulation that might under Executive Order 13211. FRA has
on the relationship between the national trigger the need for a more detailed determined this rule will not have a
government and the States, or on the environmental review. As a result, FRA significant adverse effect on the supply,
distribution of power and finds this rule is not a major Federal
responsibilities among the various distribution, or use of energy, and, thus,
action that significantly affects the is not a ‘‘significant energy action’’
levels of government.’’ See E.O. 13132. quality of the human environment.
Under Executive Order 13132, the under Executive Order 13211.
agency may not issue a regulation with Unfunded Mandates Reform Act of 1995 Privacy Act
federalism implications that imposes Under Section 201 of the Unfunded
substantial direct compliance costs, and Mandates Reform Act of 1995 (Reform In accordance with 5 U.S.C. 553(c),
that is not required by statute, unless Act) (Pub. L. 104–4, 2 U.S.C. 1531), each DOT solicits comments from the public
the Federal government provides the Federal agency shall, unless otherwise to better inform its rulemaking process.
funds necessary to pay the direct prohibited by law, assess the effects of DOT posts these comments, without
compliance costs incurred by State and Federal regulatory actions on State, edit, to www.regulations.gov, as
local governments, or the agency local, and tribal governments, and the described in the system of records
consults with State and local private sector (other than to the extent notice, DOT/ALL–14 FDMS, accessible
government officials early in the process that such regulations incorporate through www.dot.gov/privacy. In order
of developing the regulation. See E.O. requirements specifically set forth in to facilitate comment tracking and
13132. Where a regulation has law). See 2 U.S.C. 1531 Section 201. response, FRA encourages commenters
federalism implications and preempts Section 202 of the Reform Act (2 U.S.C. to provide their name, or the name of
State law, the agency seeks to consult 1532) further requires each agency to their organization; however, submission
with State and local officials in the prepare a comprehensive written of names is completely optional.
process of developing the regulation. statement for any proposed or final rule Whether or not commenters identify
FRA analyzed this final rule under the that includes a Federal mandate that themselves, all timely comments will be
principles and criteria in Executive may result in the expenditure by State, fully considered. If one wishes to
Order 13132. This rule will not have a local, and tribal governments, in the provide comments containing
substantial direct effect on States, on the aggregate, or by the private sector, of proprietary or confidential information,
relationship between the national $100,000,000 or more (adjusted please contact the agency for alternate
government and the States, or on the annually for inflation) in any 1 submission instructions.
distribution of power and the year . . . .2
responsibilities among the various List of Subjects in 49 CFR Part 225
This final rule will not result in the
levels of government. See Executive expenditure of more than $156,000,000 Investigations, Penalties, Railroad
Order 13132. In addition, FRA (the value equivalent of $100,000,000 in safety, Reporting and recordkeeping
determined this rule does not impose 2015 dollars) by the public sector in any requirements.
substantial direct compliance costs on one year. Thus, preparation of such a
State and local governments. statement is not required. The Rule
Accordingly, FRA concluded the
consultation and funding requirements Energy Impact In consideration of the foregoing, FRA
of Executive Order 13132 do not apply, amends part 225 of chapter II, subtitle
Executive Order 13211 requires
and preparation of a federalism B of title 49, Code of Federal
Federal agencies to prepare a Statement
assessment is not required. Regulations, as follows:
of Energy Effects for any ‘‘significant
Environmental Impact energy action.’’ 66 FR 28355, May 22, PART 225–[AMENDED]
2001. Under Executive Order 13211, a
FRA evaluated this final rule under its
‘‘significant energy action’’ is defined as
Procedures for Considering ■ 1. The authority citation for part 225
any action by an agency (normally
Environmental Impacts (FRA continues to read as follows:
sradovich on DSK3GMQ082PROD with RULES
Procedures) (64 FR 28545, May 26, 2 See U.S. Department of Transportation, Authority: 49 U.S.C. 103, 322(a), 20103,
1999) as required by the National ‘‘Guidance—Threshold of Significant Regulatory 20107, 20901–02, 21301, 21302, 21311; 28
Environmental Policy Act (42 U.S.C. Actions under the Unfunded Mandates Reform Act U.S.C. 2461, note; and 49 CFR 1.89.
4321 et seq.), other environmental of 1995,’’ April 4, 2016, https://
www.transportation.gov/office-policy/
statutes, Executive Orders, and related transportation-policy/threshold-significant-
■ 2. In § 225.19, revise the first sentence
regulatory requirements. FRA has regulatory-actions-under-unfunded-mandat-0, as of paragraph (c), and paragraph (e) to
determined this final rule is not a major accessed December 12, 2017. read as follows:
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![9222 Federal Register / Vol. 83, No. 43 / Monday, March 5, 2018 / Rules and Regulations
§ 225.19 Primary groups of accidents/ parte communications in informal Rules of Practice, 358 I.C.C. 323, 345
incidents. rulemaking proceedings. The Board also (1977).3 At that time, several court
* * * * * adopts other changes to its ex parte decisions expressed the view that ex
(c) Group II—Rail equipment. Rail rules that would clarify and update parte communications in informal
equipment accidents/incidents are when and how interested persons may rulemaking proceedings were inherently
collisions, derailments, fires, communicate informally with the Board suspect.4 Accordingly, it has long been
explosions, acts of God, and other regarding pending proceedings other the agency’s practice to prohibit
events involving the operation of on- than rulemakings. The intent of the meetings with individual stakeholders
track equipment (standing or moving) modified regulations is to enhance the on issues that are the topic of pending
that result in damages higher than the Board’s ability to make informed informal rulemaking proceedings.
current reporting threshold (i.e., $6,700 decisions through increased stakeholder At the same time, however, other
for calendar years 2002 through 2005, communications while ensuring that the court decisions were more tolerant of ex
$7,700 for calendar year 2006, $8,200 Board’s record-building process in parte communications in informal
for calendar year 2007, $8,500 for rulemaking proceedings remains rulemaking proceedings, so long as the
calendar year 2008, $8,900 for calendar transparent and fair. proceedings were not quasi-adjudicative
year 2009, $9,200 for calendar year DATES: This rule is effective on April 4, in nature and the process remained
2010, $9,400 for calendar year 2011, 2018. fair.5 In 1981, in Sierra Club v. Costle,
$9,500 for calendar year 2012, $9,900 657 F.2d 298 (D.C. Cir. 1981), the U.S.
ADDRESSES: Requests for information or
for calendar year 2013, $10,500 for Court of Appeals for the District of
questions regarding this final rule
calendar year 2014, $10,500 for calendar Columbia Circuit significantly clarified
should reference Docket No. EP 739 and
year 2015, $10,500 for calendar year and liberalized treatment of this issue.
be in writing addressed to: Chief,
2016, and $10,700 for calendar years In that case, the court considered the
Section of Administration, Office of
2017 and beyond, until revised) to ‘‘timing, source, mode, content, and the
Proceedings, Surface Transportation
railroad on-track equipment, signals, extent of . . . disclosure’’ of numerous
Board, 395 E Street SW, Washington, DC
tracks, track structures, or roadbed, written and oral ex parte
20423–0001. communications received after the close
including labor costs and the costs for
FOR FURTHER INFORMATION CONTACT: of the comment period to determine
acquiring new equipment and
Jonathon Binet at (202) 245–0368. whether those communications violated
material.
Assistance for the hearing impaired is the governing statute or due process. Id.
* * * * * available through the Federal
(e) The reporting threshold is $6,700 at 391. The court held that, because the
Information Relay Service (FIRS) at agency docketed most of the ex parte
for calendar years 2002 through 2005, (800) 877–8339.
$7,700 for calendar year 2006, $8,200 communications and none of the
SUPPLEMENTARY INFORMATION: The comments were docketed ‘‘so late as to
for calendar year 2007, $8,500 for
Board’s current regulations at 49 CFR
calendar year 2008, $8,900 for calendar
1102.2 generally prohibit most informal presiding officers, and a strict ex parte prohibition.
year 2009, $9,200 for calendar year
communications between the Board and See 5 U.S.C. 556–57. But most federal agency
2010, $9,400 for calendar year 2011, rulemakings, including the Board’s, are informal
interested persons concerning the merits
$9,500 for calendar year 2012, $9,900 rulemaking proceedings subject instead to the less
of pending Board proceedings. These restrictive ‘‘notice-and-comment’’ requirements of 5
for calendar year 2013, $10,500 for
regulations require that communications U.S.C. 553.
calendar year 2014, $10,500 for calendar
with the Board or Board staff regarding 3 In Revised Rules of Practice, the ICC stated ‘‘ex
year 2015, $10,500 for calendar year parte communication during a rulemaking is just as
the merits of an ‘‘on-the-record’’ Board
2016, and $10,700 for calendar years improper as it is during any other proceeding. The
proceeding not be made on an ex parte Commission’s decisions should be influenced only
2017 and beyond, until revised. The
basis (i.e., without the knowledge or by statements that are a matter of public record.’’
procedure for determining the reporting
consent of the parties to the 358 I.C.C. at 345.
threshold for calendar years 2006 and 4 See, e.g., Home Box Office v. Fed. Commc’ns
proceeding).1 See 49 CFR 1102.2(a)(3),
beyond appears as paragraphs 1–8 of Comm’n, 567 F.2d 9, 51–59 (D.C. Cir. 1977) (finding
(c). The current regulations detail the
appendix B to part 225. that ex parte communications that occurred after
procedures required in the event an the notice of proposed rulemaking (NPRM) violated
* * * * * impermissible communication occurs the due process rights of the parties who were not
and the potential sanctions for privy to the communications because the written
Juan D. Reyes, III, administrative record would not reflect the possible
Chief Counsel. violations. See 49 CFR 1102.2(e), (f). ‘‘undue influence’’ exerted by those stakeholders
[FR Doc. 2018–04349 Filed 3–2–18; 8:45 am]
In 1977, the Board’s predecessor who had engaged in ex parte communications);
agency, the Interstate Commerce Nat’l Small Shipments Traffic Conference v. ICC,
BILLING CODE 4910–06–P 590 F.2d 345, 351 (D.C. Cir. 1978) (finding ex parte
Commission (ICC), determined that the
communications ‘‘violate[d] the basic fairness of a
general prohibition on ex parte hearing which ostensibly assures the public a right
communications in proceedings should to participate in agency decision making,’’
SURFACE TRANSPORTATION BOARD
include the informal rulemaking foreclosing effective judicial review); Sangamon
proceedings the Board uses to Valley Television Corp. v. United States, 269 F.2d
49 CFR Part 1102 221, 224 (D.C. Cir. 1959) (finding that undisclosed
promulgate regulations.2 See Revised ex parte communications between agency
[Docket No. EP 739] commissioners and a stakeholder were unlawful
1 ‘‘On-the-record proceeding’’ means ‘‘any matter because the informal rulemaking involved
Ex Parte Communications in Informal described in Sections 556–557 of the ‘‘resolution of conflicting private claims to a
Rulemaking Proceedings Administrative Procedure Act [(APA)] (5 U.S.C. valuable privilege, and that basic fairness requires
sradovich on DSK3GMQ082PROD with RULES
556–557) or any matter required by the such a proceeding to be carried on in the open’’).
AGENCY: Surface Transportation Board. Constitution, statute, Board rule, or by decision in 5 See, e.g., Action for Children’s Television v. Fed.
ACTION: Final rule. the particular case, that is decided solely on the Commc’ns Comm’n, 564 F.2d 458 (D.C. Cir. 1977)
record made in a Board proceeding.’’ 49 CFR (upholding the agency’s decision not to issue
SUMMARY: In this decision, the Surface 1102.2(a)(1). proposed rules and finding no APA violation for ex
2 The APA, 5 U.S.C. 551–559, governs two parte discussions where the agency provided a
Transportation Board (the Board) categories of agency rulemaking: Formal and meaningful opportunity for public participation and
modifies its regulations to permit, informal. Formal rulemaking is subject to specific the proceeding did not involve competing claims
subject to disclosure requirements, ex procedural requirements, including hearings, for a valuable privilege).
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Document Created: 2018-03-03 02:45:34
Document Modified: 2018-03-03 02:45:34
| 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 March 5, 2018. This final rule is applicable January 1, 2018. | |
| Contact | Kebo Chen, Staff Director, U.S. Department of Transportation, Federal Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room W33-314, 1200 New Jersey Ave. SE, Washington, DC 20590 (telephone 202- 493-6079); or Senya Waas, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, RCC-10, West Building 3rd Floor, Room W31-223, 1200 New Jersey Ave. SE, Washington, DC 20590 (telephone 202-493-0665). | |
| FR Citation | 83 FR 9219 | |
| RIN Number | 2130-ZA16 | |
| CFR Associated | Investigations; Penalties; Railroad Safety and Reporting and Recordkeeping Requirements |
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