Proposed Rule2024-24586
Federal Railroad Administration's Procedures for Waivers and Safety-Related Proceedings
Primary source
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Published
October 29, 2024
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
This proposed rule would update FRA's procedures for waivers and safety-related proceedings to define the two components of the statutory waiver and suspension standard, "in the public interest" and "consistent with railroad safety." By defining these terms, FRA intends to clarify the standard the agency will apply when evaluating petitions for regulatory relief. FRA also proposes to require petitions for relief to include evidence of meaningful consultation with appropriate stakeholders. Additionally, FRA proposes to make minor updates to agency rules of practice.
Full Text
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<title>Federal Register, Volume 89 Issue 209 (Tuesday, October 29, 2024)</title>
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[Federal Register Volume 89, Number 209 (Tuesday, October 29, 2024)]
[Proposed Rules]
[Pages 85895-85909]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24586]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 211
[Docket No. FRA-2024-0033]
RIN 2130-AC97
Federal Railroad Administration's Procedures for Waivers and
Safety-Related Proceedings
AGENCY: Federal Railroad Administration (FRA), U.S. Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This proposed rule would update FRA's procedures for waivers
and safety-related proceedings to define the two components of the
statutory waiver and suspension standard, ``in the public interest''
and ``consistent with railroad safety.'' By defining these terms, FRA
intends to clarify the standard the agency will apply when evaluating
petitions for regulatory relief. FRA also proposes to require petitions
for relief to include evidence of meaningful consultation with
appropriate stakeholders. Additionally, FRA proposes to make minor
updates to agency rules of practice.
DATES: Written comments on this proposed rule must be received on or
before December 30, 2024. Comments received after that date will be
considered to the extent possible without incurring additional expense
or delay.
ADDRESSES:
Comments: Comments related to Docket No. FRA-2024-0033 may be
submitted by going to <a href="http://www.regulations.gov">www.regulations.gov</a> and following the online
instructions for submitting comments.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Identification Number (RIN) for this
rulemaking. All comments received will be posted without change to
<a href="http://www.regulations.gov">www.regulations.gov</a>; this includes any personal information. Please see
the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of
this document for Privacy Act information related to any submitted
comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to <a href="http://www.regulations.gov">www.regulations.gov</a> and follow the online
instructions for accessing the docket.
FOR FURTHER INFORMATION CONTACT: Veronica Chittim, Senior Attorney,
Office of the Chief Counsel, at <a href="/cdn-cgi/l/email-protection#81f7e4f3eeefe8e2e0afe2e9e8f5f5e8ecc1e5eef5afe6eef7"><span class="__cf_email__" data-cfemail="ccbaa9bea3a2a5afade2afa4a5b8b8a5a18ca8a3b8e2aba3ba">[email protected]</span></a>, 202-480-3410;
or Lucinda Henriksen, Senior Advisor, Office of Railroad Safety, at
<a href="/cdn-cgi/l/email-protection#eb879e8882858f8ac5838e85998280988e85ab8f849fc58c849d"><span class="__cf_email__" data-cfemail="ddb1a8beb4b3b9bcf3b5b8b3afb4b6aeb8b39db9b2a9f3bab2ab">[email protected]</span></a>, 202-657-2842.
SUPPLEMENTARY INFORMATION:
I. Background
FRA has broad discretionary authority to waive or suspend the
requirement to comply with any rule, regulation, or order upon a
finding that doing so is ``in the public interest and consistent with
railroad safety.'' 49 U.S.C. 20103(d).\1\ Within FRA, decisional
authority for waivers rests with FRA's Railroad Safety Board
(Board).\2\ FRA's Rules of Practice, 49 CFR part 211, set forth the
general requirements for petitions to the Board and the general outline
of the Board's processes.\3\ The burden of proving the request is
justified rests with the petitioner.\4\
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\1\ The Secretary of Transportation is authorized to issue such
waivers or suspensions and the Secretary has delegated that
authority to FRA. 49 U.S.C. 20103(d)(1) and 49 CFR 1.89(a).
\2\ 49 CFR 211.41(a).
\3\ 49 CFR part 211, subpart C (Sec. Sec. 211.41 through
211.45).
\4\ See 49 CFR 211.9.
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In January 2023, FRA published guidance pertaining to waiver
procedures and process titled Guidance on Submitting Requests for
Waivers, Block Signal Applications, and Other Approval Requests to FRA
(Guidance).\5\ The Guidance outlined best practices for petitioners to
use when developing and submitting waiver, suspension, and other
approval requests, and best practices impacted stakeholders (e.g., the
public, railroad employees, and labor organizations) may use to ensure
their views, concerns, and comments are thoroughly considered
throughout the process. This proposal would provide additional detail
on portions of the guidance, and make certain recommendations therein
mandatory, such as the recommended consultation prior to filing of a
petition.
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\5\ <a href="https://railroads.dot.gov/elibrary/guidance-submitting-requests-waivers-block-signal-applications-and-other-approval-requests">https://railroads.dot.gov/elibrary/guidance-submitting-requests-waivers-block-signal-applications-and-other-approval-requests</a>; 88 FR 1448 (Jan. 10, 2023).
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In this rulemaking, FRA is proposing to update its procedures for
waivers and safety-related proceedings in 49 CFR part 211 to clarify
the standard to be applied by FRA when deciding whether to grant a
request for regulatory relief. Specifically, FRA is proposing to define
both the ``in the public interest'' and ``consistent with railroad
safety'' components of the statutory standard in 49 U.S.C. 20103(d),
for purposes of evaluating waiver or suspension requests. Additionally,
FRA is proposing to require petitions for regulatory relief to include
evidence of meaningful consultation with stakeholders.
II. Section-by-Section Analysis
Part 211
Sec. 211.1 General
FRA proposes to make minor editorial amendments to Sec. 211.1(a)
to remove outdated language regarding the Federal Railroad Safety Act
(concerning proceedings initiated after 1976). Further, FRA proposes to
replace the obsolete statutory citation (45 U.S.C. 432) for emergency
orders with the current citation, 49 U.S.C. 20104. FRA also proposes to
clarify that a proceeding will be deemed to be initiated and the time
period for its disposition will begin on the date a petition or
application that complies with the requirements of this chapter is
confirmed to be complete (not merely the date it is received) by FRA.
FRA also proposes to make technical amendments to the definitions
of ``Safety Act,'' ``Docket Clerk,'' and ``Railroad Safety Board.''
Specifically, in the definition of ``Safety Act'' in Sec. 211.1(b)(3),
FRA proposes to update the citation (45 U.S.C. 421 et seq.) to 49
U.S.C. ch. 201 et seq., as the existing citation is obsolete. FRA
proposes to add a cross-reference in Sec. 211.1(a) to the proposed
updated definition of ``Safety Act'' in Sec. 211.1(b)(3). In the
definition of ``Docket Clerk'' in Sec. 211.1(b)(4), FRA proposes to
(1) remove the reference to the ``Office of Chief Counsel Docket
Clerk,'' as this position no longer exists at FRA, and (2) replace the
physical address for the DOT Docket Clerk with the website
<a href="http://www.regulations.gov">www.regulations.gov</a>. Within the definition of ``Railroad Safety Board''
in Sec. 211.1(b)(5), FRA proposes to insert the word ``Railroad''
[[Page 85896]]
before ``Safety'' into the outdated term ``Office of Safety.''
FRA proposes to amend Sec. 211.1(b) to add specific definitions of
``in the public interest'' and ``consistent with railroad safety'' for
purposes of this part. FRA has long interpreted the standard in 49
U.S.C. 20103(d)(1) of ``in the public interest and consistent with
railroad safety'' as a standard focused on safety, including the safety
of rail operations and those directly involved in those operations, as
well as the safety and well-being of the public at large. However,
neither 49 U.S.C. 20103 nor 49 CFR part 211 defines ``in the public
interest and consistent with railroad safety.'' Thus, in Sec.
211.1(b)(6) and (b)(7), FRA proposes to add definitions of ``in the
public interest'' and ``consistent with railroad safety'' to clarify
the standard and provide transparency and consistency as to how FRA
will evaluate whether a petition meets that standard.
Overall, via the proposed definitions in Sec. 211.1(b)(6) and (7),
FRA expects requests for waivers, suspensions, and other safety-related
proceedings for regulatory relief to maintain or improve railroad
safety and to align with one or more of DOT's priorities and innovation
principles or other public interest factors.\6\ DOT's first innovation
principle, to ``Serve our policy priorities,'' includes a focus
``around creating high quality jobs, achieving racial equity and
increasing opportunity for all Americans, and tackling the climate
crisis'' to drive innovation. DOT's second innovation principle, ``Help
America win the 21st century,'' prioritizes future proofing
infrastructure and also bringing legacy systems into the digital age
and enabling adaptability and resiliency. Many FRA regulations were
established prior to the digital age, providing an opportunity for
future requests to show how certain practices can be updated and
adapted appropriately consistent with this principle. DOT's third
innovation principle, ``Support workers,'' involves empowering workers
on many levels, including expanding skills and training, as well as
ensuring workers have a seat at the table to shape innovation. DOT's
fourth innovation principle, ``Allow for experimentation and learn from
failure,'' supports open data and transparency and the ability to learn
from experimentation and failures. DOT's fifth innovation principle,
``Provide opportunities to collaborate,'' strives for an outcomes-based
approach that is technology neutral, consistent with FRA's performance-
based regulations. This principle embraces public private partnerships
that foster innovation and protect the interests of the public,
workers, and communities in a technology-neutral manner. Finally, DOT's
sixth innovation principle, ``Be flexible and adapt as technology
changes,'' also reflects performance-based regulations and
interoperability, and the need for a collaborative approach across
transportation modes.
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\6\ <a href="https://www.transportation.gov/priorities/transformation/us-dot-innovation-principles">https://www.transportation.gov/priorities/transformation/us-dot-innovation-principles</a>.
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For purposes of this part, in Sec. 211.1(b)(7), FRA proposes to
define ``consistent with railroad safety'' to mean the proposal is ``at
least as safe as or safer than the status quo (i.e., without the
proposed relief).'' If a proposal would improve railroad safety and/or
remove certain railroad operational risks, the prong ``consistent with
railroad safety'' would be satisfied as proposed here. At a minimum,
FRA proposes that a petition must document and provide associated
qualitative or quantitative analysis that demonstrates that with the
regulatory relief, railroad operations would be at least as safe as
they would have been without the relief. Under no circumstances could
this standard be met if the safety provided under the applicable
regulations is not maintained or is reduced. Additionally, consistent
with DOT's policy priorities, ``innovations should reduce deaths and
serious injuries on our Nation's transportation network, while
committing to the highest standards of safety across technologies.''
\7\ Thus, in any petition seeking regulatory relief, petitioners should
include safety analysis and any data demonstrating how the request
aligns with the proposed definition of ``consistent with railroad
safety'' in Sec. 211.1(b)(7). Generally, FRA expects that a petition
that would reduce the level of existing required human visual
inspections or that would not meet current FRA requirements would not
be consistent with railroad safety under the proposed Sec.
211.1(b)(7). Thus, to demonstrate that a petition is consistent with
railroad safety, the petition must show that the proposed process or
technology will overcome that expected reduction in safety by being as
safe or safer than the existing regulation would require.
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\7\ <a href="https://www.transportation.gov/priorities/transformation/us-dot-innovation-principles">https://www.transportation.gov/priorities/transformation/us-dot-innovation-principles</a>.
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For purposes of this part and for understanding the statutory
standard, in Sec. 211.1(b)(6), FRA proposes to define ``in the public
interest'' to mean ``the proposed request demonstrates positive factors
including, but not limited to, empowering workers, ensuring equity,
protecting the environment, creating robust infrastructure, enabling
adaptability and resiliency, bringing legacy systems up to current
standards, allowing for experimentation consistent with railroad
safety, providing opportunities to collaborate, ensuring
interoperability integration across transportation modes, and the well-
being of the public at large.'' FRA proposes that ``in the public
interest'' signifies not only how a proposal for regulatory relief may
improve railroad operations, but also how the request may positively
affect relevant stakeholders, including workers and communities. FRA
notes that a request demonstrating any of these factors in the proposed
definition may be seen to be ``in the public interest,'' because the
proposal would align with one or more of DOT's priorities and
innovation principles.
To reflect whether the request is ``in the public interest'' as
proposed in Sec. 211.1(b)(6), FRA notes that petitioners should
address these principles directly in their petitions. For example, the
petition could explain how the proposal would reduce waste, re-use or
recycle certain inputs, or reduce emissions, demonstrating that the
proposal is ``in the public interest.'' Similarly, consistent with the
principle to ``Help America win the 21st century,'' a petitioner could
demonstrate how a request may create robust infrastructure, enable
adaptability and resiliency, and bring legacy systems up to current
standards. Likewise, the petitioner could show how the request would
allow for experimentation to enable learning from both successes and
failures (while still being consistent with railroad safety). The
request could demonstrate how the petitioner has provided (and will
continue to provide) opportunities to collaborate with workers and
local communities. Moreover, such requests could show how the proposal
would empower workers, such as through expanding access to skills,
training, and/or the choice of a union. In line with these principles,
FRA expects to continue its successful practice of encouraging
stakeholder engagement through establishing test committees \8\ as a
condition to granting regulatory relief, when appropriate.
Historically, FRA has, in certain instances, required the establishment
of a test committee as a
[[Page 85897]]
condition of regulatory relief related to the use of technology or a
new operational process in the railroad industry. As noted in footnote
8, a test committee typically involves a small group of diverse
stakeholders that meet periodically to review safety data and consider
related challenges and benefits of the relief. To show that a proposal
is ``in the public interest,'' FRA proposes that a petitioner could
provide evidence that the regulatory relief requested would not
eliminate jobs or eliminate required visual inspections, but would add
additional positions, or improve the existing positions. The petitioner
could identify opportunities for interoperability among innovations and
foster cross-modal integration, if possible. Accordingly, in any
petition seeking regulatory relief, petitioners should demonstrate how
the request aligns with the proposed definition of ``in the public
interest'' in Sec. 211.1(b)(6).
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\8\ FRA has traditionally specified the membership of test
committees in the conditions to the waiver, if applicable, ensuring
that all relevant stakeholders are represented. Test committee
membership may include, for example, representatives from equipment
manufacturers, affected labor representatives, FRA personnel,
railroad representatives, and Association of American Railroads
committee members, etc.
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By incorporating definitions for ``in the public interest'' and
``consistent with railroad safety'' into FRA's Rules of Practice, FRA
intends to ensure consistency in how requests are evaluated going
forward. For example, when reviewing whether a waiver request is ``in
the public interest and consistent with railroad safety,'' the Board
would assess the request's commitment to both safety and the public
interest. A petition showing only that a proposal may improve the
efficiency of railroad operations or reduce costs will likely not meet
the standard in the proposed definition of ``in the public interest''
without a separate showing that the request meets additional public
interest factors as proposed in Sec. 211.1(b)(6). The petitioner
should be able to show there is a benefit to stakeholders, and, as
described below, that the stakeholders had been consulted with before
filing to ensure any potential concerns are addressed.
Further, if the request for regulatory relief would reduce the
number of inspections being performed, the petition may not meet the
``in the public interest'' definition proposed here. In many cases,
technology can be layered on top of the existing regulatory framework
without necessitating a reduction in human inspections currently being
performed or relief from Federal regulations.\9\ Thus, if a petitioner
proposes to incorporate a new technology or approach, but also requests
relief to permit a reduction in the number of inspections, to
demonstrate the request is ``in the public interest,'' the request
would need to show both that the relief is necessary and that other
factors outweigh the impacts of reduced inspections in the context of
potential negative impacts to the ``public interest.''
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\9\ <a href="https://railroads.dot.gov/about-fra/communications/newsroom/press-releases/usdot-secretary-buttigieg-calls-rail-industry-0">https://railroads.dot.gov/about-fra/communications/newsroom/press-releases/usdot-secretary-buttigieg-calls-rail-industry-0</a> (In a
February 21, 2023, press release, Secretary Buttigieg called on the
railroad industry to ``[d]eploy new inspection technologies without
seeking permission to abandon human inspections. . . . We need both
[technology and human oversight] to keep our nation's railroads
safe.'').
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FRA also notes that the same statutory standard applies for initial
requests for relief and renewal or modification requests. Generally,
waivers or other approvals for regulatory relief are time limited and
may be geographically limited, and renewals are discretionary, which
means renewals and expansions of a waiver's geographic scope are never
automatic or guaranteed. Further, consistent with 49 U.S.C.
20103(d)(4), FRA reviews waivers or suspensions that have been in
continuous effect for a six-year period and determines whether the
waiver or suspension should be terminated, renewed, or incorporated
into the regulations. Petitioners seeking to renew or expand an
existing grant of relief should include in the application evidence of
Petitioners' compliance with the existing conditions of the relief (if
any), and how the waiver, suspension, or other approval for relief has
satisfied, and will continue to satisfy, the proposed standard of ``in
the public interest and consistent with railroad safety.''
Additionally, FRA proposes (in Sec. 211.9) to require petitions for
renewal to contain specific data on the overall effectiveness of the
waiver, suspension, or other grant of relief.
Upon review of a petition for regulatory relief, FRA would
determine whether the factors in proposed Sec. 211.1(b)(6) and (b)(7)
have been addressed and meet the standard of ``in the public interest
and consistent with railroad safety.'' If the factors have not been
addressed, FRA may dismiss the petition, primarily because FRA would be
unable to evaluate whether the request meets the standard of ``in the
public interest and consistent with railroad safety.'' If the petition
addresses the factors proposed in Sec. 211.1(b)(6) and (b)(7), FRA
would then consider whether the requested regulatory relief satisfies
the ``in the public interest'' and ``consistent with railroad safety''
standards as defined and would address these requirements in any
decision letter issued.
Given this proposal, which would define and clarify the ``public
interest'' component of the statutory standard, FRA seeks public
comment on whether additional changes to the existing procedures for
waivers, suspensions, and other safety-related proceedings for
regulatory relief are necessary.
FRA intends the new definitions proposed in Sec. 211.1(b) to be
applicable for the evaluation of all waiver and suspension petitions
filed pursuant to 49 U.S.C. 20103(d). Historically, FRA has applied the
standard of ``consistent with railroad safety'' to FRA's review of
block signal applications (49 U.S.C. 20502; 49 CFR part 235). FRA does
not intend to revise this historical practice, but intends to apply the
definition of ``consistent with railroad safety,'' as proposed in Sec.
211.1(b)(7).
Sec. 211.7 Filing Requirements
In paragraph (b)(1), FRA proposes to remove the reference to the
``FRA Docket Clerk,'' and replace with ``FRA via email to
<a href="/cdn-cgi/l/email-protection#e1a7b3a0b6808897849392a1858e95cf868e97"><span class="__cf_email__" data-cfemail="2e687c6f794f47584b5c5d6e4a415a00494158">[email protected]</span></a>.'' The position of ``FRA Docket Clerk'' no longer
exists. FRA proposes to remove the reference in that section to
``grandfathering,'' and simply refer to ``petitions for approval''
under 49 CFR 238.203. Finally, FRA proposes modifying the phrase that
the acknowledgment shall state ``the date the petition or application
was received'' to be ``the date FRA determined the petition or
application was complete.''
Sec. 211.9 Content of Waiver and Other Safety-Related Proceeding
Petitions
First, FRA proposes to make minor editorial amendments to Sec.
211.9(a), (b), and (c) to remove the semi-colons at the end of each
paragraph and account for the new proposed paragraphs (d) and (e). FRA
also proposes to rename Sec. 211.9 and revise the introductory
language to reflect a broader application to waivers, and other safety-
related proceedings seeking regulatory relief, such as block signal
applications and requests for test programs under Sec. 211.51 and
remove the application to rulemakings. Specifically, FRA proposes to
apply the new language to ``each petition for waiver or other safety-
related proceeding for regulatory relief.'' FRA proposes to remove
rulemaking petitions from the applicability of Sec. 211.9 and add a
new Sec. 211.10 dedicated to the content requirements of rulemaking
petitions. Additionally, in Sec. 211.9(c), FRA proposes removing the
language ``each evaluation must include an estimate of resulting costs
to the private sector, to consumers, and to Federal, State, and local
governments as well as an evaluation of resulting benefits, quantified
to the extent practicable.'' While petitions for relief must evaluate
the impacts of a proposed waiver, the existing language for a
[[Page 85898]]
detailed cost benefit analysis is more applicable to petitions for
rulemaking, and thus FRA proposes moving this language into Sec.
211.10(c) pertaining to rulemakings.
Second, FRA proposes to amend Sec. 211.9 to add a new paragraph
(d) to require that petitioners must provide evidence that they have
consulted with applicable stakeholders prior to submission of the
application to FRA for consideration. In this proposal, any petition
must contain documentation, such as a certification statement by the
petitioner, with accompanying documentation demonstrating that the
petitioner engaged in meaningful consultation with stakeholders.
Specifically, FRA proposes Sec. 211.9(d) to state that petitions must
demonstrate: ``meaningful good faith consultation with potentially
affected stakeholders, including applicable rail labor stakeholders, on
the proposed request for relief, prior to submission to FRA for
evaluation and processing.'' Should FRA finalize this proposed
language, a petition that fails to document meaningful consultation
will likely be denied as incomplete. While meaningful consultation will
generally entail consultation with rail labor stakeholders, affected
stakeholders for a more localized request would likely include
communities along the railroad's right-of-way. If a particular
community would be affected, FRA expects the railroad to reach out to
the community proactively before filing the request with FRA. If there
are no specific localities affected, FRA otherwise expects the public
to be informed through FRA's publication of the notice of the request
in the Federal Register. The public at-large would then have the
opportunity to comment on that notice and collaborate on the request.
FRA has found that incoming petitions frequently do not address the
potential impacts of the request on stakeholders other than the
petitioner. This too often leads to extensive efforts on the part of
both FRA and individual petitioners to work with these stakeholders to
understand and address their concerns. FRA discussed this issue in its
January 2023 Guidance, recommending that petitioners consult and
coordinate with stakeholders prior to filing.\10\ This proposed rule
would streamline the process by requiring petitioners to consult and
coordinate with potentially affected stakeholders prior to filing a
petition with FRA, and then documenting these efforts in their
petition. For example, virtually every request from a railroad for a
waiver from a safety regulation will impact at least some of that
railroad's employees. Accordingly, prior to filing a petition with FRA,
this proposal would require a railroad to meaningfully consult with
potentially impacted employees, and the local and general chairmen as
well as the State and national legislative levels of any labor
organizations that represent them, and document the extent and outcome
of its consultation in any petition.
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\10\ <a href="https://railroads.dot.gov/elibrary/guidance-submitting-requests-waivers-block-signal-applications-and-other-approval-requests">https://railroads.dot.gov/elibrary/guidance-submitting-requests-waivers-block-signal-applications-and-other-approval-requests</a>.
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Meaningful consultation prior to submission would serve to educate
stakeholders of the proposal and reduce the likelihood of any
misunderstandings as to the requested relief. FRA expects petitioners
to engage stakeholders in discussions about the relief proposed and
genuinely seek stakeholders' input. FRA expects that consultation will
be substantive, and not simply serve to check a box that stakeholders
were informed of a proposal, as that would not constitute meaningful
consultation. Meaningful consultation involves good faith and the best
efforts of railroads to engage stakeholders in discussions about the
proposed request for relief, the relief sought, and seek substantive
input.\11\ The intent of consultation is to engage with affected
stakeholders at all stages of the proposal's development and then
implementation of the relief, if granted. Ideally, railroads would
consider their employees, and organization(s) representing those
employees, as partners throughout the process rather than as reviewers
of a finished product. Meaningful consultation should involve
coordinating, gathering, and discussing employee and railroad input and
considering feedback on the development of the proposed request.
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\11\ Guidance on Railroad/Employee Consultation Requirements in
49 CFR parts 270 and 271, <a href="https://railroads.dot.gov/elibrary/guidance-railroademployee-consultation-requirements-49-cfr-parts-270-and-271">https://railroads.dot.gov/elibrary/guidance-railroademployee-consultation-requirements-49-cfr-parts-270-and-271</a>.
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To show that a railroad sought feedback from applicable
stakeholders, a petition could include a statement with a detailed
description of the process the petitioner used to consult with
stakeholders as well as written correspondence, identify areas of
agreement or non-agreement with the proposal, and include a service
list to show which parties were consulted. Additionally, FRA expects
that stakeholders would provide factual, well-supported feedback that
demonstrates such meaningful collaboration.
Petitions that demonstrate consensus has been achieved with
potentially affected stakeholders, including applicable rail labor
organizations, would likely provide evidence of one factor that the
application is ``in the public interest.''
Third, as discussed above, FRA proposes to add a new paragraph (e)
to require that renewal and expansion petitions contain data on the
overall effectiveness of the existing relief. While Sec. 211.9(c)
requires petitions to contain sufficient information to support the
action sought, including an evaluation of anticipated impacts of the
action sought, FRA notes that a renewal or expansion petition should
also be able to demonstrate how effective the waiver or other grant of
relief has been prior to the request for renewal or expansion. To
assist petitioners in providing data on the effectiveness of a waiver
or other relief, FRA proposes revising the last sentence in Sec.
211.9(c) to require each petition pertaining to safety regulations to
``contain relevant safety data and analysis to demonstrate the petition
is in the public interest and consistent with railroad safety, and
outline the metrics to be used to determine effectiveness of the waiver
or other relief, if granted.'' Given the petitioner's experience
implementing and using the waiver or other relief, a petitioner should
have specific data to support the renewal or expansion request. This
may include how railroad safety has improved because of the waiver or
other grant of relief (e.g., the number of defects decreased, or a
reduction in the risk of an infrequent, but catastrophic event), and
how the public interest has been served. In Sec. 211.9(e)(1), FRA
proposes to make this expectation to provide data of the relief's
effectiveness a requirement for all renewal and expansion petitions.
Moreover, in Sec. 211.9(e)(2), FRA proposes to require that a renewal
or expansion petition must also demonstrate compliance with any
conditions that were included in the previous grant of relief. Finally,
in Sec. 211.9(e)(3), FRA proposes to require renewal and expansion
requests for relief to ``demonstrate how the waiver, suspension, or
other approval for relief is, and will continue to be, in the public
interest and consistent with railroad safety.''
Sec. 211.10 Content of Rulemaking Petitions
FRA proposes to establish a new provision, Sec. 211.10, to outline
content requirements for rulemaking petitions. As discussed above, FRA
proposes to remove rulemaking petitions from Sec. 211.9, and create a
standalone Sec. 211.10
[[Page 85899]]
to address rulemaking content requirements. The requirements proposed
in Sec. 211.10 are substantively similar to the existing Sec. 211.9.
Specifically, FRA proposes to require each petition for rulemaking to
(a) ``set forth the text or substance of the rule, regulation,
standard, or amendment proposed, or specify the rule, regulation, or
standard that the petitioner seeks to have repealed'' and (b) ``explain
the interest of the petitioner, and the need for the action
requested.'' In proposed (c), each petition for rulemaking must
``contain sufficient information to support the action sought including
an evaluation of anticipated impacts of the action sought; each
evaluation must include an estimate of resulting costs to the private
sector, to consumers, and to Federal, State, and local governments as
well as an evaluation of resulting benefits, quantified to the extent
practicable.'' In this manner, petitions for rulemaking would be
required to evaluate the costs and benefits of the proposal.
Sec. 211.11 Processing of Petitions for Rulemaking
FRA proposes updating the references in this provision from Sec.
211.9 to Sec. 211.10, to reflect the proposed bifurcation of petitions
for waivers and petitions for rulemaking content requirements. In Sec.
211.11(b) and (c), FRA proposes replacing references to the pronoun
``he'' with ``the Administrator.'' In Sec. 211.11(d), FRA proposes to
change the word ``mailed'' to ``sent'' to reflect the possibility of
electronic transmittal of the notice of grant or denial.
Sec. 211.13 Initiation and Completion of Rulemaking Proceedings
FRA proposes updating the reference in this provision from Sec.
211.9 to Sec. 211.10, to reflect the proposed bifurcation of petitions
for waivers and petitions for rulemaking content requirements. FRA
proposes replacing references to the pronouns ``his'' and ``he'' with
``the Administrator's'' and ``the Administrator.''
Sec. 211.41 Processing of Petitions for Waiver of Safety Rules
FRA proposes to update the language in Sec. 211.41(b) to include
an explicit standard comment period for notice of a waiver in the
Federal Register to be 60 days. Moreover, FRA suggests removing the
introductory language, ``[i]f required by statute or the Administrator
or the Railroad Safety Board deems it desirable.'' Because publication
of a notice is required for all such waiver petitions (see 49 U.S.C.
20103(d)(2)(C)), FRA finds this introductory language is unnecessary.
The existing provision is silent on the length of an appropriate period
of public comment; however, FRA has customarily used 60 days as a
matter of practice. FRA also proposes to specify that any deviation
from the proposed standard 60-day comment period will be subject to the
Administrator's approval.
Sec. 211.43 Processing of Other Waiver Petitions
FRA proposes to update the language in Sec. 211.43(b) to mirror
the changes as discussed for Sec. 211.41(b).
III. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by Executive Order 14094 and DOT
Regulatory Policies and Procedures
This proposed rule is a non-significant regulatory action within
the meaning of Executive Order (E.O.) 12866 as amended by E.O. 14094,
Modernizing Regulatory Review \12\ and DOT's Order, ``Rulemaking and
Guidance Procedures,'' DOT 2100.6A (June 7, 2021). FRA concluded that
this proposed rule would impart an annualized burden of approximately
$78,000 per year, for an estimated 70 waiver petitions annually, or
about $547,000 present value at 7 percent over 10 years. This estimate
assumes an equal number of waiver consultations that take 1 hour and
those that may take 4 hours, including administrative time of about 25
percent.
---------------------------------------------------------------------------
\12\ 88 FR 21879 (Apr. 6, 2023) located at <a href="https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review">https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review</a>.
Table III-1--Summary of Costs and Benefits Over the 10-Year Period
[2023 Dollars]
----------------------------------------------------------------------------------------------------------------
** Annualized
Impact Undiscounted * PV 7% PV 3% PV 2% 7%, 3%, 2%
----------------------------------------------------------------------------------------------------------------
Data Analysis and Metrics....... $62,392 $43,821 $53,221 $56,044 $6,239
Consultation and Documentation.. 676,529 475,166 577,093 607,698 67,653
Waiver Renewal Effectiveness and 40,109 28,171 34,214 36,028 4,011
Conditions Compliance..........
-------------------------------------------------------------------------------
Total Costs................. 779,030 547,158 664,528 699,770 77,903
----------------------------------------------------------------------------------------------------------------
FRA Cost.................... Minimal overall change from baseline. Potentially more time to review
additional waiver information may be offset by expected better-organized
information explicitly addressing NPRM requirements.
----------------------------------------------------------------------------------------------------------------
Qualitative Benefit......... In general, addressing incomplete information and facilitating affected
stakeholder input expected to better meet statutory standards of ``in the
public interest'' and ``consistent with railroad safety.''
----------------------------------------------------------------------------------------------------------------
* PV = Present Value.
** Because the schedule of costs by year are the same, the annualized values are the same.
Figures in tables may not sum due to rounding.
[[Page 85900]]
Overall, FRA expects this rule will lead to higher-quality waiver
applications that meet the positive objectives of DOT's innovation
principles. Because this rule would apply to a variety of relief
applications, it is difficult to quantify the potential benefits from
consultation on any particular request for relief.
1. Need for Regulatory Action
a. Inadequate or Asymmetric Information
For convenience, this analysis uses the term ``waiver'' request to
encompass petitions for waiver, or other safety-related proceedings for
regulatory relief, including block signal applications (BSAPs), and
waiver renewal requests subject to this rulemaking.
As stated in the Section-by-Section analysis for Sec. 211.9 and
FRA's Guidance,\13\ FRA has found that some submitted waiver requests
on the surface seem to contain the information necessary under part 211
(and are therefore considered ``received'' by FRA), but in fact do not
contain sufficient information for FRA to evaluate if a submitted
waiver request meets the applicable legal standards and are therefore
incomplete. For these waiver requests containing inadequate
information, FRA expends resources to work with the petitioner and
affected stakeholders to gather the necessary information. Although
waiver requests, including requests for renewal and modification, are
published in the Federal Register for comment, addressing these
information needs early in the waiver development process would
potentially result in a more streamlined and efficient waiver request
``workflow,'' i.e., waiver disposition procedure.
---------------------------------------------------------------------------
\13\ 88 FR 1448 (Jan. 10, 2023).
---------------------------------------------------------------------------
By requiring petitioners and affected stakeholders to consult on a
waiver request prior to submission to FRA, this NPRM would provide
information to both parties that they may be lacking under the current
waiver process. For example, a railroad petitioner may lack information
on the full effects of the proposed waiver, and employees may
misunderstand how a proposed waiver may be implemented or simply lack
awareness of the waiver request. Meaningful consultation could avoid
unexpected and unintended effects of the proposed waiver that another
party may not have considered. Furthermore, if the waiver would involve
several parties, for example, several railroad disciplines (e.g.,
operating practices, motive power and equipment), or more than one
geographic district, consultation would enhance the distribution of
information about the proposed waiver among these parties. Parties that
may be potential petitioners, such as railroads and suppliers, and
those that may be affected stakeholders, such as labor union
representatives and community rail associations, have shown a
willingness and ability to provide information through their
participation in the Railroad Safety Advisory Committee (RSAC) \14\ and
submitting comments in notice-and-comment rulemakings. The burden to
share information and consult on a proposed waiver rests primarily on
the petitioner.
---------------------------------------------------------------------------
\14\ <a href="https://rsac.fra.dot.gov/">https://rsac.fra.dot.gov/</a>.
---------------------------------------------------------------------------
Through this NPRM, FRA is also proposing to define the terms ``in
the public interest'' and ``consistent with railroad safety'' that are
used in the statute, 49 U.S.C. 20103(d), but not previously defined.
Defining these terms will help clarify for petitioners and affected
stakeholders how FRA will decide whether waiver requests meet the
statutory standard. By defining these terms, FRA expects that
petitioners will be more likely to submit waiver requests providing the
necessary and sufficient information for FRA to evaluate the waiver
proposal. That may reduce the chances of a waiver being dismissed
because a submitted waiver request did not meet these criteria.
b. Statutory Directive
The NPRM would also facilitate FRA's implementation of 49 U.S.C.
20103(d)(4), requiring review and analysis of a waiver that has been in
continuous effect for six years. Specifically, the analysis and metrics
required under proposed Sec. 211.9(c), and the data about how
effective a waiver has been (when a waiver renewal is requested) under
proposed Sec. 211.9(e) will help FRA evaluate whether codifying the
waiver is in the public interest and consistent with railroad safety.
That is, whether the waiver continues to meet the statutory
requirements.
2. Baseline
As background, FRA considers several types of waiver requests under
FRA's Rules of Practice and decides whether to grant, conditionally
grant, or deny a submitted waiver request. If FRA's preliminary review
of a submitted petition for waiver shows it to lack sufficient
information for further evaluation, the petition may be denied or
returned to the petitioner, who may choose to resubmit it.
This analysis uses the environment without the NPRM as the baseline
scenario. Without the NPRM's proposed requirements, FRA would continue
to receive some waiver requests that are incomplete because they fail
to address the statutory criteria of ``in the public interest'' and
``consistent with railroad safety.'' FRA would continue to expend
resources to gather the missing information from petitioners and
affected stakeholders rather than the petitioner providing the
necessary information. Petitioners may face uncertainty about the
standards FRA is applying in FRA's waiver petition evaluation, and
spend unnecessary resources supplementing a waiver petition the
petitioner thought to be complete when initially submitted. When
implementing the statutory directive to review waivers in operation for
six years, FRA may lack some information to fully evaluate the
effectiveness of the waiver.
Some categories of waivers already involve consultation with
affected stakeholders and the procedure to evaluate these waivers will
remain substantially the same under the baseline and the NPRM. These
are waivers involving test committees, hours of service (HS) laws, and
train horns.
3. Methodology
The proposed data analysis and consultation requirements apply to
individual petitions for waivers. Therefore, this analysis used the
additional labor time per waiver request to meet these requirements and
the number of waiver requests as the basis to estimate the average per-
waiver request cost and the overall costs of the NPRM.
The benefits estimate of potential time savings from
``streamlining'' the waiver process is qualitative because the benefits
will depend on the nature of each waiver. Additionally, FRA does not
have history to estimate the impact of the NPRM on FRA's waiver Rules
of Practice to date. Although FRA's Guidance described much of the
NPRM's provisions as best practices, it was issued recently (2023). FRA
notes petitioner and stakeholder experiences with waivers that already
involve much consultation, such as those for which test committees were
established, have been generally positive. These waiver requests that
already involve much consultation are relatively few, numbering about 8
waiver requests from the years 2019 through 2022.
[[Page 85901]]
Data and Assumptions
To estimate the number of waivers that may be affected, FRA counted
the number of Federal Register notices published pertaining to its
Railroad Safety Board proceedings. From the years 2020 to 2024, a
period of 4 years, there were 280 Federal Register notices or an
average of 70 notices annually. Furthermore, by applying the percentage
of waiver petitions filed by Class 1 railroads,\15\ FRA estimated that
of these 70 total waiver petitions, 21 were Class I railroad waiver
petitions, 28 were small railroad waiver petitions, 17.5 were commuter
and passenger service railroad waiver petitions, and 3.5 were blanket
waiver petitions (covering more than 1 entity) and other waiver
petitions. Based on the waiver petitions that have been submitted to
FRA in the past, most petitioners will be railroads and most affected
stakeholders will be employees, who may be represented by labor unions.
For a small number of waiver petitions, a community adjacent to a rail
line segment or rail yard may be an affected stakeholder.
---------------------------------------------------------------------------
\15\ Separately, FRA reviewed its waiver management systems and
found the number of incoming waiver petitions from Class I railroads
has remained fairly consistent from the years 2019 through 2023,
with a slight decrease only in 2023 (about 24 waiver petitions per
year on average).
---------------------------------------------------------------------------
To estimate the additional labor hours per waiver petition, FRA
estimated 1 hour per waiver request for petitioners to add the data
analysis and metrics required under proposed Sec. 211.9(c), which will
support that the waiver would be aligned with the proposed definition
of ``consistent with railroad safety'' in Sec. 211.1(b). For
documenting meaningful consultation and the prerequisite consultation
with affected stakeholders, FRA estimated an equal number of
consultations would take 1 hour and those that would take 4 hours, for
simple and more complex waiver requests respectively. FRA also
estimated an administrative time of about 25 percent to schedule
meetings and other logistics. The 50/50 split between simple and more
complex waiver requests reflects the uncertainty around this estimate
given that waiver requests vary and that this requirement would be new.
The average consultation time is 2.5 hours per waiver request, and the
average administrative time is 0.625 hours per waiver request, for a
combined average time of 3.125 hours per waiver request. Furthermore,
FRA estimated 2 employees from the petitioner and 2 employees from an
affected stakeholder would each incur the opportunity cost to engage in
the consultation, for a total of 12.5 hours per waiver request.
To monetize these additional labor hours, FRA used wage rates
reported to the Surface Transportation Board (STB) by the Class I
railroads, burdened by 75 percent. For this analysis FRA used the STB
wage rates for the relevant employee groups. For data analysis and
describing metrics costs, FRA used the wage rate of $89.13,
representing the Professional and Administrative employee group. For
consultation costs, FRA used the wage rate of $77.32, representing the
total for all groups, because a waiver request can include several
different types of employees or railroad disciplines.\16\
---------------------------------------------------------------------------
\16\ STB Quarterly Wage A&B Data (2023). Annual composite for
All Railroads. Available: <a href="https://www.stb.gov/reports-data/economic-data/quarterly-wage-ab-data/">https://www.stb.gov/reports-data/economic-data/quarterly-wage-ab-data/</a>. Calculations: Group 200 Professional &
Administrative employees, $50.93 per hour STB average straight time
rate x 1.75 fringe benefit multiplier = $89.13 per hour burdened
wage rate. Similarly, for Group 700 Total All Groups employees,
$44.18 x 1.75 = $77.32 per hour burdened wage rate.
---------------------------------------------------------------------------
FRA used a 10-year period for this analysis, allowing for 1
original waiver petition and 1 waiver renewal request after a period of
5 years. FRA has found that some railroads may not seek renewals beyond
10 years, possibly because equipment may be over-age, the waiver
codified, or other changes in operations or equipment covered under the
waiver. FRA also used 2023 real dollars (i.e., a 2023 base year).
4. Costs
The substantive changes from the baseline are found in following
proposed sections:
<bullet> Sec. 211.1(b) to add definitions of ``in the public
interest'' and ``consistent with railroad safety.''
<bullet> Sec. 211.9(c) to require analysis and describe
effectiveness metrics.
<bullet> Sec. 211.9(d) to include documentation of meaningful
consultation.
<bullet> Sec. 211.9(e) to require waiver renewal requests to show
waiver effectiveness and demonstrate compliance with conditions under
which the waiver was granted.
Proposing to clarify the definitions of ``in the public interest''
and ``consistent with railroad safety'' in Sec. 211.1(b) have no
direct costs except the data analysis and metrics required under
proposed Sec. 211.9(c) support demonstrating the waiver request meets
these criteria; the sections may be seen to work together. It may take
some additional effort to explicitly show how the proposed waiver would
meet these criteria, which is reflected in the data analysis, metrics,
and consultation cost sections.
The title of Sec. 211.9 is proposed to be revised to include
``other safety-related proceedings petitions.'' The revision would add
proceedings such as those for BSAPs and test programs to this section.
FRA has historically held BSAPs to the same safety standards as other
waiver petitions. Also, as mentioned, waivers for which test committees
are established include much consultation under the baseline.
Therefore, this change would be administrative in nature and has no
costs.
More significantly, proposed changes to Sec. 211.9(c) would add
requirements for (data) analysis and metrics. Although ensuring that a
proposed waiver meets safety criteria has always been a part of FRA's
evaluation, the changes in this section emphasize that requirement.
Waiver requests would need to include analysis and clearly identify
safety impacts. In addition, the specified metrics can be used to
determine if the waiver is achieving the intended goals, and meeting
the ``in the public interest'' and ``consistent with railroad safety''
standards. The metrics need not be complex, for example, accident/
incident measures appropriate to the type of waiver proposed (i.e.,
discipline or railroad operation covered by the waiver), or relevant
casualties. FRA estimated this cost as: Cost of analysis and metrics =
time to perform analysis and metrics x wage rate x no. of waivers.
Using 1 hour for the time, and the Professional and Administrative wage
rate of $89.13 per hour, yields an estimated cost of $89.13 per waiver
request, or $6,239 for the estimated 70 waiver requests per year. The
schedule of these costs is shown in the summary table below.
The documentation requirement proposed in Sec. 211.9(d) requires
meaningful consultation between the petitioner and affected
stakeholders. FRA estimated this cost as: Cost of consultation and
documentation = (hours per waiver x wage rate x no. of employees) x no.
of waivers. The cost is incurred by both the petitioner and affected
stakeholders. FRA assumes the cost is equal for both parties. Using an
average time (including administrative time) of 3.125 hours per waiver
request, a wage rate representing all employee types of $77.32 per
hour, 2 employees each for the petitioner and affected stakeholder(s),
and 70 total waiver requests results in a cost of $33,826 annually for
each party. The cost per waiver request is $483, again for each party.
The total costs are shown in the summary table below.
Under the baseline, FRA expends resources to gather missing data
from
[[Page 85902]]
the waiver request that the proposed consultation should provide. Thus,
some of FRA's burden and associated cost may be transferred to the
petitioner under the proposed requirements in the NPRM. However, FRA
assumes that the time spent by FRA post-waiver request submittal is
more than the time that would be spent by the petitioner pre-waiver
request submittal. FRA reasons that the petitioner has direct knowledge
of the subject proposed waiver and ready access to affected
stakeholders who may be employees or employee representatives on the
petitioner's worksite or property.
Also under the baseline, petitioners wishing to renew a waiver are
expected to provide enough information about its impacts (and under
certain conditions, if so specified) to support its renewal. Proposed
Sec. 211.9(e) would require petitioners to show a waiver's
effectiveness over time and compliance with the specified waiver
conditions explicitly. FRA expects there will be additional data
available by the time a waiver is eligible for extension or renewal to
demonstrate its effectiveness; the metrics developed in proposed Sec.
211.9(c) would assist with that effort. FRA notes not all waivers are
submitted to FRA for renewal because of the age of the equipment,
changes in technology, codification of waivers, or other operational
reasons. Based on the Reflectorization of Rail Freight Rolling Stock:
Codifying Existing Waivers NPRM,\17\ about 64 percent of waivers are
eligible for renewal. Applying that percentage to the 70 waiver
requests used in this analysis yields about 45 waivers eligible for
renewal annually. The cost is therefore accounted by: Cost to show
renewal effectiveness and compliance = time to provide data x wage rate
x no. of renewals. Using 1 hour for the time, similar to Sec. 211.9(c)
for the marginal data analysis and metrics development, $89.13 to
represent Professional and Administrative employees who may perform the
data analysis, and 45 renewal requests, produces a cost of $4,011
annually, or $89.13 per waiver.
---------------------------------------------------------------------------
\17\ 87 FR 43467 (July 21, 2022).
---------------------------------------------------------------------------
The schedule of NPRM costs is summarized in the table below.
Table III-2--Schedule of NPRM Costs
[2023 Dollars]
----------------------------------------------------------------------------------------------------------------
Sec. 211.9(e)
Sec. Sec. 211.9(d) Waiver renewal
Year 211.9(c) Consultation and effectiveness and Total
Analysis and documentation compliance
----------------------------------------------metrics-----------------------------------------------------------
1....................................... $6,239 $67,653 $4,011 $77,903
2....................................... 6,239 67,653 4,011 77,903
3....................................... 6,239 67,653 4,011 77,903
10...................................... 6,239 67,653 4,011 77,903
-----------------------------------------------------------------------
Total............................... 62,392 676,529 40,109 779,030
PV 7%................................... 43,821 475,166 28,171 547,158
PV 3%................................... 53,221 577,093 34,214 664,528
PV 2%................................... 56,044 607,698 36,028 699,770
Annualized 7%, 3%, 2%................... 6,239 67,653 4,011 77,903
----------------------------------------------------------------------------------------------------------------
The figures for analysis of years 4 through 9 repeat and are not shown for brevity.
Similarly, the annualized costs using discount rates of 7%, 3%, and 2% are the same.
Government Costs
FRA does not anticipate any additional significant costs under the
NPRM. FRA may receive more data and analysis to evaluate, but expects
it will be better organized to highlight the information needs
addressed by the NPRM. Overall, FRA estimates minimal changes to the
time needed for FRA's evaluation of waiver requests, which are a part
of FRA's customary duties.
FRA invites comment on the inputs used to estimate the costs for
the NPRM.
5. Benefits
Because FRA receives a variety of waiver requests covering
different areas of the railroading environment, it is difficult to
quantify the benefits of the NPRM. The benefits will depend on the
increase in the quality of information FRA receives in submitted waiver
requests. Generally, FRA expects more and better information that
supports a waiver meets the overall statutory standard of safety vis-
[agrave]-vis the criteria of ``in the public interest'' and
``consistent with railroad safety.''
6. Other Effects
Distributional Effects
The NPRM may have positive distributional effects. Through
consultation and involvement of affected stakeholders, their concerns
can be accounted for in evaluating a waiver request and setting
conditions for its potential use. That may avoid concentrating the
benefits of a waiver in a relatively small number of petitioners, while
the costs may be spread among many affected stakeholders.
7. Alternatives
FRA considered two alternatives to the NPRM. First, FRA considered
extending the time provided to stakeholders to comment on waiver
requests. Second, FRA considered a process in which FRA would
facilitate a discussion between a petitioner for waiver and affected
stakeholders, in lieu of the consultation proposed in the NPRM.
For the first alternative, FRA would continue to publish Federal
Register notices concerning waiver requests as it currently does under
FRA's Rules of Practice. However, FRA could extend the time provided
for affected stakeholders to comment on such Federal Register notices.
The goal would be to expand the opportunity for affected stakeholders
to provide information and share their concerns. This option would be a
straightforward, low-cost alternative. However, simply extending the
comment period time would not achieve FRA's regulatory objective
because FRA would still likely receive waiver requests that lack the
in-depth data needed for a thorough evaluation of a waiver request in
light of the statutory standard.
FRA also considered an alternative modeled after the RSAC. RSAC
membership consists of railroads, suppliers, labor union
representatives,
[[Page 85903]]
public interest groups, other governmental agencies, and other
interested parties--essentially potential waiver petitioners and
affected stakeholders. In the same way that RSAC members discuss
assigned regulatory tasks, FRA could host a similar ``roundtable''
meeting for a petitioner and affected stakeholders to discuss a
petitioner's proposed waiver. FRA would serve as host and facilitator,
acting in the same role as it currently does for RSAC meetings.
However, this alternative may suggest a perception that FRA is bringing
all parties together to eventually approve the waiver petition, rather
than FRA serving as the arbiter of the petition. Simultaneously, in
this alternative, FRA could also clarify the criteria of ``in the
public interest'' and ``consistent with railroad safety'' that FRA uses
to evaluate waiver requests. Similar to the NPRM, this alternative
process could provide clarity, transparency, and input from
stakeholders.
To account for the cost of the RSAC-like alternative, FRA reasoned
that simple and routine proposed waivers could be discussed through
virtual meetings, while more complex waiver requests would benefit from
in-person meetings with an option to attend virtually, i.e., hybrid
meetings. FRA conducts similar types of virtual and hybrid meetings for
the RSAC. The costs for these meetings consist of administrative costs
to plan meetings, and opportunity costs for the participants' time to
attend meetings. FRA calculated the average cost of a meeting to
discuss a proposed petition and multiplied it by the estimated 70
waiver requests a year for an overall cost for this alternative, as
enumerated below.
The administrative costs would vary by whether a meeting is virtual
or hybrid. Based on a discussion with FRA's RSAC program manager, the
tasks for virtual meetings consist of scheduling the meeting, forming
an agenda, and posting the meeting details on FRA's website. In
addition, FRA prepares meeting minutes after the meeting. For the
scheduling, agenda, and website posting tasks, FRA estimated 1 hour of
labor time; for the post-meeting minutes preparation, FRA estimated 3
hours of labor time; for a total of 4 hours. For the hybrid meetings,
FRA would need to arrange for meeting space, and audio/visual (A/V)
equipment and personnel to operate it. FRA generally pays a fixed price
for these services. FRA estimated the cost to rent meeting space,
including conference room set-up, to be $5,000, and the cost for A/V
equipment and the operator to be $5,000 per day, for a total of $10,000
per meeting (i.e., per complex waiver request). For monetizing FRA time
for planning the virtual meeting and for the opportunity cost to attend
meetings (see below), this analysis used the General Schedule (GS) pay
rate for grade GS-14, step 5 Federal employees in the Washington, DC
area. This Federal employee pay rate of $71.88 was burdened by 75
percent for fringe to yield a pay rate of $125.79 per hour.\18\ The
resulting administrative cost for a simple waiver request was estimated
at $503 per waiver request, and $10,000 for a complex waiver request.
For both virtual and hybrid meetings, FRA would bear all the
administrative costs.
---------------------------------------------------------------------------
\18\ Office of Personnel Management (OPM), Salary Table 2023-DCB
(Jan. 2023). Available: <a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB_h.pdf">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB_h.pdf</a>.
Calculation: $71.88 per hour x 1.75 fringe benefit multiplier =
$125.79 per hour burdened rate.
---------------------------------------------------------------------------
All parties would incur an opportunity cost to attend the meetings.
FRA assumed two representatives from each party to a proposed petition
would attend the consultation meeting, specifically two employees each
from FRA, the petitioner, and affected stakeholders. For the
petitioners and affected stakeholders, most of whom will be railroad
employees, FRA used the same STB wage rates as used in the primary NPRM
analysis. In general, the cost for attending a virtual or hybrid
meeting is: Cost to attend meeting = meeting hours x no. of employees x
wage rate, where the meeting hours will vary by type of meeting
(virtual or hybrid) and the wage rate varies by type of employee
(government or railroad). Using the inputs above, the FRA cost to
attend a meeting for a simple waiver request would be $1,006, and would
be $619 each for petitioners and stakeholders.\19\ The cost to attend a
hybrid meeting for a complex waiver request is double the cost for
virtual meetings because the time is doubled. Therefore, the FRA cost
for a complex waiver request would be $2,013, and the petitioner and
stakeholder cost would be $1,237 each.
---------------------------------------------------------------------------
\19\ Calculation: Cost to attend virtual meeting (FRA) = 4 hours
x 2 employees x $125.79 per hour = $1,006.32. The petitioner cost
equals the stakeholder cost = 4 hours x 2 employees x $77.32 per
hour = $618.54.
---------------------------------------------------------------------------
Adding in the administrative cost to FRA's attendance cost resulted
in an FRA cost per simple waiver request of $1,509, and $12,013 for a
complex waiver request (with the majority of complex waiver request
costs resulting from conference room rental and A/V equipment and
operator fees). The average cost would be $6,761. For a petitioner and
stakeholder that incur only the attendance cost, the average cost would
be $928 per waiver request.\20\ Next, the respective average cost was
multiplied by the estimated 70 waiver requests a year for estimated
total costs for FRA, petitioner, and stakeholders. These costs would
remain constant over the 10-year period of analysis. The table below
shows the present values of these cost schedules. The expected benefit
would be the same qualitative benefit as for the preferred NPRM option.
---------------------------------------------------------------------------
\20\ Sample calculation: Cost of simple waiver request
(petitioner) = attendance cost only = $618.54. Cost of complex
waiver request = $1,237.08. Average cost of waiver request =
($618.54 + $1,237.08)/2 = $927.81 per waiver request. The
stakeholder cost is the same as the petitioner cost.
Table III-3--Alternative Option: Summary of Costs Over the 10-Year Period
[2023 Dollars]
----------------------------------------------------------------------------------------------------------------
**Annualized
Proposed waiver party Undiscounted *PV 7% PV 3% PV 2% 7%, 3%, 2%
----------------------------------------------------------------------------------------------------------------
FRA (Gov't)..................... $4,737,742 $3,324,080 $4,037,125 $4,251,226 $473,274
Petitioner...................... 649,468 456,159 554,009 583,390 64,947
Stakeholder..................... 649,468 456,159 554,009 583,390 64,947
-------------------------------------------------------------------------------
Total Cost.................. 6,031,678 4,236,398 5,145,144 5,418,006 603,168
-------------------------------------------------------------------------------
Total Cost without FRA...... 1,298,936 912,318 1,108,019 1,166,781 129,894
----------------------------------------------------------------------------------------------------------------
* PV = Present Value.
[[Page 85904]]
** Because the schedule of costs by year are the same, the annualized values are the same.
To compare the RSAC-like alternative to the preferred NPRM option,
the estimated annualized cost is highlighted. The annualized cost
(without FRA) for this alternative of $129,804 exceeds the cost of the
NPRM option cost of $77,903. The cost of the alternative including FRA
costs is much greater than the preferred NPRM option cost. Thus, the
alternative would not reduce costs in comparison to the NPRM option.
7. Sensitivity Analysis
The costs are dependent on the number of waiver requests per year
and the estimate of time to address the proposed requirements. The
largest category of costs presented in Table III-2 is for the
consultation and documentation provision in proposed Sec. 211.9(d).
FRA assumed an equal number of simple and complex waiver requests and
therefore used a straight average to estimate the time required. If the
stakeholders submit and therefore consult on simple or routine waiver
requests more than complex waiver requests, then that cost might be
overstated; the converse is true if petitioners and stakeholders
consider relatively more complex waiver requests.
FRA's count of 70 waiver petitions a year may underestimate the
amount of consultation because when petitioners are added to existing
umbrella or blanket waivers, there may not be additional discrete
Federal Register notices (upon which the estimate of 70 waiver
petitions was based). On the other hand, such additional consultations
for an existing waiver would be familiar and similar to previous
consultations on the same blanket waiver, i.e., they would impose only
a small burden. The number of blanket waiver requests is also small (3
waiver requests). Additionally, existing blanket waiver requests
include an HS waiver,\21\ for which FRA expects consultation already
occurs, mitigating the potential overestimate of costs.
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\21\ Docket Number FRA-2009-0078 (see, e.g., <a href="https://www.regulations.gov/document/FRA-2009-0078-0216">https://www.regulations.gov/document/FRA-2009-0078-0216</a>).
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8. Conclusion
In this NPRM, FRA is clarifying terms and proposing changes to
provide more complete information for FRA's waiver proceedings. The
NPRM addresses proposed waiver petitions received by FRA that lack
description of the full range of impacts.
FRA estimated the NPRM would result in costs with a present value
of about $547,000 using a 7 percent discount rate and $665,000 using a
3 percent discount rate, over a 10-year period of analysis in 2023
dollars. The benefits are described qualitatively because the specific
benefits would depend on the waiver under consideration. In general,
FRA expects the proposed waivers it receives would include more and
better information reflecting the impacts to affected stakeholders. The
NPRM would establish a way to gather this information potentially more
efficiently before a waiver proposal is submitted to FRA instead of
FRA, petitioner, and stakeholders working to gather this information
post-waiver request submittal to FRA. The additional information would
facilitate FRA determining whether that waiver request meets the
statutory standard in 49 U.S.C. 20103(d). FRA would also be better able
to balance the interests of a petitioner and stakeholders in the
overarching interest of public safety.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 ((RFA), 5 U.S.C. 601 et
seq.) and E.O. 13272 (67 FR 53461, Aug. 16, 2002) require agency review
of proposed and final rules to assess their impacts on small entities.
When an agency issues a rulemaking proposal, the RFA requires the
agency to ``prepare and make available for public comment an initial
regulatory flexibility analysis'' which will ``describe the impact of
the proposed rule on small entities.'' 5 U.S.C. 603(a).
1. Reasons for Considering Agency Action
In this NPRM, FRA is proposing changes to its waiver procedures so
waiver petitions submitted to FRA contain more complete information and
FRA is informed by sufficient coordination with potential affected
stakeholders. As discussed above, this NPRM would apply to waiver
requests and other safety-related proceedings for regulatory relief,
including BSAPs, and waiver renewal requests. FRA has found that some
petitions incompletely describe the impacts of a proposed waiver
because they do not address its potential impacts on affected
stakeholders. The lack of sufficient information often requires
extensive efforts by FRA, the petitioner, and affected stakeholders to
gather this information after a waiver petition has been submitted to
FRA or may result in dismissal of a petition due to lack of sufficient
information. FRA is therefore proposing that petitioners requesting a
waiver consult with affected stakeholders before submitting a waiver
request to FRA. Petitioners would also need to provide documentation of
consultation with affected stakeholders in their waiver request. See
proposed Sec. 211.9(d).
To aid petitioners requesting a waiver in providing the type of
information sought by FRA, FRA is proposing to define the terms ``in
the public interest'' and ``consistent with railroad safety.'' See
proposed Sec. 211.1(b)(6) and (7). The statute authorizing FRA to
waive or suspend regulatory requirements uses these terms in setting
the standard that FRA must use in its decision whether to grant a
waiver request. However, these terms are not defined in the statute. 49
U.S.C. 20103(d).
Under the NPRM, a waiver request must contain analysis
demonstrating how the proposed waiver would impact the overarching
standard of safety. A waiver request also would need to describe the
metrics used to measure its effectiveness. See proposed Sec. 211.9(c).
A waiver renewal request would be held to same standard, and the
petitioner would be required to use data and metrics to show a waiver
was effective from approval to request for renewal. See proposed Sec.
211.9(e).
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The proposed rule seeks to provide clarity for petitioners
requesting a waiver, and result in waiver requests submitted to FRA
that provide more in-depth information upon which to base its
evaluation. The proposed definitions of ``in the public interest'' and
``consistent with railroad safety'' would clarify for the regulated
community and the public the criteria FRA uses in deciding whether to
grant a waiver request. Furthermore, the proposed requirement to
include analysis and metrics in addition to the existing requirement to
include relevant safety data would help show how a proposed waiver
meets these two criteria. The safety data, analysis, and metrics would
ultimately aid FRA in evaluating that a proposed waiver is in the
public interest and consistent with railroad safety. Also, the proposed
section requiring petitioners to consult with affected stakeholders
prior to submitting a waiver request will help ensure the
[[Page 85905]]
petition captures more complete information about a proposed waiver's
impacts. FRA intends such a consultation would be a ``two-way street,''
serving to gather information from, but also inform, affected
stakeholders who otherwise may have minimal knowledge about the
proposed waiver. Finally, the proposed requirements for waiver renewal
requests would align with the proposed greater information needs for
waiver requests, to show the original waivers were effective.
Regarding the legal basis, this NPRM would define the terms ``in
the public interest'' and ``consistent with railroad safety'' to help
gather information from petitioners facilitating FRA to implement the
statutory standard (when determining whether to waive or suspend
compliance with rules or regulations). 49 U.S.C. 20103(d). Furthermore,
the statute requires FRA to consider issuing rules codifying waivers
that have been in effect for 6 years. For codification, these 6-year-
old waivers must also meet the criteria of being ``in the public
interest'' and ``consistent with railroad safety;'' the data and
metrics proposed in the NPRM will help FRA determine if these waivers
meet the statutory standard. 49 U.S.C. 20103(d)(4).
3. A Description of and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Applies
The RFA requires a review of proposed and final rules to assess
their impact on small entities, unless the Secretary certifies that the
rule would not have a significant economic impact on a substantial
number of small entities. ``Small entity'' is defined in 5 U.S.C. 601
as a small business concern that is independently owned and operated
and is not dominant in its field of operation. The U.S. Small Business
Administration (SBA) has authority to regulate issues related to small
businesses, and stipulates in its size standards that a ``small
entity'' in the railroad industry includes a for-profit ``line-haul
railroad'' that has fewer than 1,500 employees and a ``short line
railroad'' with fewer than 1,500 employees.\22\
---------------------------------------------------------------------------
\22\ ``Size Eligibility Provisions and Standards,'' 13 CFR part
121, subpart A.
---------------------------------------------------------------------------
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Under that authority, FRA has published a final statement of
agency policy that formally establishes ``small entities'' or ``small
businesses'' as railroads, contractors, and hazardous materials
shippers that meet the revenue requirements of a Class III railroad as
set forth in 49 CFR part 1201, General Instruction 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.\23\ The $20 million limit is based on the STB's revenue
threshold for a Class III railroad carrier. Railroad revenue is
adjusted for inflation by applying a revenue deflator formula in
accordance with 49 CFR part 1201, General Instruction 1-1. The current
threshold is $46.4 million.\24\ FRA is using this definition for the
proposed rule.
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\23\ 68 FR 24891 (May 9, 2003) (codified at 49 CFR part 209,
appendix C).
\24\ The Class III railroad revenue threshold is $46,352,455 or
less for 2022, the most recent year available. See STB, Economic
Data. Available: <a href="https://www.stb.gov/reports-data/economic-data/">https://www.stb.gov/reports-data/economic-data/</a>.
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Based on railroads that report to FRA under 49 CFR part 225
(Railroad Accidents/Incidents), FRA estimated the universe of small
railroads consists of 812 Class III railroads. Because any railroad may
request a waiver, all 812 Class III railroads may be affected by this
proposed rule. Considering waiver requests actually submitted to FRA in
the year 2023, about 40 percent of petitioners were small railroads, or
on average about 28 out of the estimated 70 annual waiver petitions. As
mentioned in the regulatory analysis for the NPRM, there are several
categories of waiver requests that already require consultation and
will mitigate the number of affected railroads. For example, about 215
Class III railroads participate in a waiver granting relief from
provisions of 49 U.S.C. 21103(a)(4), regarding the required number of
hours off-duty before initiating an on-duty period for train employees.
When the association representing Class III railroads, the American
Short Line and Regional Railroad Association (ASLRRA), petitioned to
add more of its members to this waiver, ASLRRA noted the railroads had
sought input from employees.\25\ In addition, other rulemakings may
codify waivers so that a small railroad would not need to submit a
waiver request for the regulatory part covered by that rulemaking,
making consultation unnecessary. For example, the Reflectorization of
Rail Freight Rolling Stock (Reflectorization) NPRM would provide relief
to railroads operating equipment used in Tourist, Historic, Excursion,
Educational, Recreational, or Private (THEERP) operations. These are
primarily small tourist railroads. As of 2022, FRA had received waiver
requests from 12 railroads operating THEERP equipment; these railroads
would not need to file waiver renewals under the Reflectorization rule.
FRA also estimated the Reflectorization rulemaking could positively
affect 123 tourist railroads.\26\
---------------------------------------------------------------------------
\25\ See Docket No. FRA-2009-0078. Available: <a href="https://www.regulations.gov/document/FRA-2009-0078-0217">https://www.regulations.gov/document/FRA-2009-0078-0217</a>.
\26\ 87 FR 43367 (July 21, 2022).
---------------------------------------------------------------------------
FRA is also not aware of any commuter railroads that serve cities
of less than 50,000 people and would thus qualify as small entities. As
noted in the regulatory analysis for the proposed rule, waiver requests
to establish a quiet zone under 49 CFR part 222 already would involve
extensive discussions between the local public authority and railroad.
Therefore, FRA expects few affected communities under the proposed
rule. However, there may be situations where small communities adjacent
to railroad property for which a railroad requests a waiver, may need
to be consulted; FRA expects these situations to be minimal.
Another class of affected small entities may be small railroad
suppliers that request a waiver. FRA estimated the North American
Industry Classification System (NAICS) code 336510 Railroad Rolling
Stock Manufacturing would best represent these suppliers because that
classification includes firms engaged in manufacturing rail cars and
equipment for both freight and passenger service.\27\ The SBA size
standard for NAICS code 336510 is 1,500 employees.\28\ Combined with
U.S. Census data, in this industry there are 119 out of 137 firms that
would qualify as small entities.\29\ Based on FRA's experience, FRA
expects most suppliers that request waivers would be either large
manufacturers or associated with large manufacturers that would exceed
the employment threshold to qualify as a small entity. For example,
suppliers such as Wabtec Corp. and New York Air Brake are a part of the
larger firms GE Transportation and Knorr-Bremse, respectively. However,
suppliers may include small entities
[[Page 85906]]
such as small electronics equipment manufacturers.
---------------------------------------------------------------------------
\27\ U.S. Census Bureau, NAICS (2022). Available at: <a href="https://www.census.gov/naics/?input=336510&year=2022&details=336510">https://www.census.gov/naics/?input=336510&year=2022&details=336510</a>.
\28\ U.S. SBA, Table of Small Business Size Standards Matched to
North American Industry Classification Codes (Mar. 2023). Available
at: <a href="https://www.sba.gov/document/support-table-size-standards">https://www.sba.gov/document/support-table-size-standards</a>.
\29\ U.S. Census Bureau, 2021 SUSB Annual Data Tables by
Establishment Industry, Data by Enterprise Employment Size, U.S. &
states, 6-digit NAICS (Dec. 2023). Available at: <a href="https://www.census.gov/data/tables/2021/econ/susb/2021-susb-annual.html">https://www.census.gov/data/tables/2021/econ/susb/2021-susb-annual.html</a>.
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Overall, a substantial number of small railroads may be affected by
this NPRM, although that number is reduced by existing consultation
requirements and codification of waivers under rulemakings. FRA invites
comment on the number of small entities affected.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Will Be Subject to the Requirements and the Type
of Professional Skill Necessary for Preparation of the Report or Record
For this NPRM, the compliance costs for affected small entities
mirror the costs for all affected entities. The cost categories remain
the same as in the regulatory analysis and the cost is represented by:
Cost per waiver = cost of analysis and metrics + cost of consultation
and documentation + cost to show waiver renewal effectiveness and
compliance. Using the same assumptions and inputs for time, number of
employees, and wage rates as used in the regulatory analysis, the cost
per waiver request is calculated by: Cost per waiver = $89.13 + $483.24
+ 483.24 + $89.13 = $1,145 per waiver request. Given that almost all
Class III railroads that submit a waiver request submit 1 waiver
request per year, the cost per waiver equals the cost per small
railroad per year. FRA expects the cost per small railroad supplier
will be similar. The cost is the same $1,145 per waiver request in
annualized terms at 7 percent, 3 percent, and 2 percent if the same
cost is used over a 10-year period of analysis.
ASLRRA reports that the average Class III railroad has an annual
average revenue of $4.75 million.\30\ Thus, the estimated cost of the
proposed rule per small entity is less than 0.05 percent of revenues.
FRA determined that the cost would not represent a significant economic
impact. FRA realizes the average revenues likely represent a wide
variety of Class III railroads in terms of employment and annual
revenues. Given these are private firms, it is difficult to further
classify or ``break down'' these railroads by employment and revenue
categories to assess the impact of the NPRM in more detail. FRA
requests comment on how many Class III railroads may be classified by
finer ranges of employees or revenues or both.
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\30\ ASLRRA, Short Line and Regional Railroad Facts and Figures
(2019 reprint of 2017 edition), p. 12. Available at: <a href="https://www.aslrra.org/about-us/industry-facts/facts-and-figures-book/">https://www.aslrra.org/about-us/industry-facts/facts-and-figures-book/</a>.
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5. Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
Although waiver request notifications are currently published in
the Federal Register and open for comment, addressing these information
needs early in the waiver development process would potentially result
in a more streamlined and efficient waiver request ``workflow,'' i.e.,
waiver disposition procedure. It would also assist FRA in adhering to
the waiver review timeframe as stated in part 211.
FRA has issued guidance to characterize consultation in reference
to the regulations for the Risk Reduction Program (RRP), System Safety
Program (SSP), and Fatigue Risk Management Program (FRMP).\31\ That
guidance refers to the terms ``in good faith'' and ``best efforts''
that are specifically noted in the statute requiring those regulations.
49 U.S.C. 20156. The terms referenced for this NPRM, ``in the public
interest'' and ``consistent with railroad safety'' are different. Also,
while the overall intent is for substantive ``good'' consultations, the
information to be discussed in the consultation for this NPRM is
different than the information for consultation for RRP, SSP, and FRMP.
Therefore, the consultations that would be required in this NPRM would
not be duplicative of the consultations described in the guidance.
---------------------------------------------------------------------------
\31\ FRA, Guidance on Railroad/Employee Consultation
Requirements in 49 CFR parts 270 and 271 (Oct. 2022). Available at:
<a href="https://railroads.dot.gov/elibrary/guidance-railroademployee-consultation-requirements-49-cfr-parts-270-and-271">https://railroads.dot.gov/elibrary/guidance-railroademployee-consultation-requirements-49-cfr-parts-270-and-271</a>.
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6. A Description of Significant Alternatives to the Proposed Rule
In the regulatory evaluation, FRA considered an alternative modeled
after its Railroad Safety Advisory Committee. In this scenario, FRA
would serve as host and facilitator for potential petitioners and
affected stakeholders to discuss a waiver request. FRA could clarify
the terms ``in the public interest'' and ``consistent with railroad
safety'' and engage parties to the waiver request for meaningful
consultation. However, because FRA would be involved, rather than the
petitioner and affected stakeholder communicating directly with each
other, the alternative would have higher costs. In addition, for more
complex waivers, the rental costs for meeting space and audio/visual
equipment to enable a hybrid meeting would increase costs. Thus, the
alternative would have higher total costs than the proposed rule.
C. Paperwork Reduction Act
The changes in this proposed rule, if adopted, would result in a
burden increase for petitions for regulatory relief under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). FRA reports burden
hours for waivers processed in accordance with part 211 of the CFR in
each of the relevant individual information collection submissions. The
current number of burden hours reported for waiver submissions over 17
information collections is 674 hours. The additional hours estimated
from this NPRM are 164 hours (838-674 = 164). The Office of Management
and Budget (OMB) control numbers that would have revised requirements,
as proposed in this NPRM, are listed in the table below and reflect the
revised estimated burden hours. The revised burden requirements for
each OMB number listed in the table will be updated in each of the
relevant individual information collections, after issuance of the
final rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual Total cost
OMB control No. Title waiver Average time Total annual Wage rate equivalent in
requests per waiver burden hours U.S. dollars
(A) (B) (C = A * B) (D = C * wage
rates)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2130-0010................................. Track Safety Standards...... 10 4.25 42.50 89.13 $3,788.03
2130-0526................................. Control of Alcohol and Drug 3 4.25 12.75 89.13 1,136.41
Use in Railroad Operations.
2130-0524................................. Railroad Communications..... 2 3.25 6.50 89.13 579.35
2130-0560................................. Use of Locomotive Horns at 2 6.25 12.50 89.13 1,114.13
Highway Rail Grade
Crossings.
2130-0566................................. Reflectorization of Freight 10 10.25 102.50 89.13 9,135.83
Rolling Stock.
[[Page 85907]]
2130-0571................................. Occupational Noise Exposure 0.3 3.25 0.98 89.13 86.90
for Railroad Operating
Employees.
2130-0005................................. Hours of Service............ 2 26.25 52.50 89.13 4,679.33
2130-0505................................. Inspection and Maintenance 1 3.25 3.25 89.13 289.67
of Steam Locomotives.
2130-0594................................. Railroad Safety Appliance 3 18.25 54.75 89.13 4,879.87
Standards.
2130-0008................................. Brakes Safety Standards..... 2 166 332.00 89.13 29,591.16
2130-0586................................. Bridge Safety Standards..... 0.3 6.25 1.88 89.13 167.12
2130-0544................................. Passenger Equipment Safety 12 8.25 99.00 89.13 8,823.87
Standards.
2130-0545................................. Passenger Train Emergency 1 12.25 12.25 89.13 1,091.84
Preparedness.
2130-0533................................. Certification of Locomotive 10 3.25 32.50 89.13 2,896.73
Engineers.
2130-0525................................. Certification of Glazing 1 6.25 6.25 89.13 557.06
Materials.
2130-0596................................. Conductor Certification..... 9 5.25 47.25 89.13 4,211.39
2130-0610................................. Risk Reduction Program...... 1 18.25 18.25 89.13 1,626.62
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Total................................. ............................ 70 .............. 838 .............. 74,655.29
--------------------------------------------------------------------------------------------------------------------------------------------------------
D. Environmental Impact
FRA has evaluated this proposed rule in accordance with the
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.),
FRA's regulations implementing NEPA, and other environmental statutes,
E.O.s, and related regulatory requirements. FRA has determined that the
proposed rule is categorically excluded from detailed environmental
review under 23 CFR 711.116(c)(5). FRA has also evaluated this NPRM
under 23 CFR 771.116(b) to determine whether the rule would involve
unusual circumstances including significant environmental impacts;
substantial controversy on environmental grounds; significant impact on
certain Federally protected properties; or inconsistencies with any
Federal, State, or local law, requirement, or administrative
determination related to the environmental aspects of the action. FRA
has determined that no unusual circumstances exist with respect to this
rule that might trigger the need for a more detailed environmental
review. As a result, FRA finds that the proposed rule is not a major
Federal action significantly affecting the quality of the human
environment.
E. Environmental Justice
E.O. 12898, ``Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations,'' requires DOT
agencies to achieve environmental justice as part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects, including interrelated
social and economic effects, of their programs, policies, and
activities on minority populations and low-income populations. DOT
Order 5610.2C (``U.S. Department of Transportation Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'') instructs DOT agencies to address compliance with E.O.
12898 and requirements within the DOT Order 5610.2C in rulemaking
activities, as appropriate, and also requires consideration of the
benefits of transportation programs, policies, and other activities
where minority populations and low-income populations benefit, at a
minimum, to the same level as the general population as a whole when
determining impacts on minority and low-income populations.\32\ FRA has
evaluated this NPRM under E.O.s 12898, 14096, and DOT Order 5610.2C,
and has determined it will not cause disproportionate and adverse human
health and environmental effects on communities with environmental
justice concerns.
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\32\ E.O. 14096 ``Revitalizing Our Nation's Commitment to
Environmental Justice,'' issued on April 26, 2023, supplements E.O.
12898, but is not currently referenced in DOT Order 5610.2C.
---------------------------------------------------------------------------
F. Federalism Implications
This NPRM will not have a substantial effect 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. Thus, in accordance with E.O. 13132, Federalism (64 FR
43255, Aug. 10, 1999), preparation of a Federalism Assessment is not
warranted.
G. Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure, in the
aggregate, of $100,000,000 or more, adjusted for inflation, in any one
year by State, local, or Indian Tribal governments, or the private
sector. Thus, consistent with section 202 of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1532), FRA is not required
to prepare a written statement detailing the effect of such an
expenditure.
H. Energy Impact
E.O. 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 proposed rule in accordance with E.O.
13211 and determined that this rule is not a ``significant energy
action'' within the meaning of E.O. 13211.
I. Executive Order 13175 (Tribal Consultation)
FRA has evaluated this proposed rule in accordance with the
principles and criteria contained in E.O. 13175, Consultation and
Coordination with Indian Tribal Governments, dated November 6, 2000.
The proposed rule would not have a substantial direct effect on one or
more Indian tribes, would not impose substantial direct compliance
costs on Indian tribal governments, and would not preempt tribal laws.
Therefore, the funding and consultation requirements of E.O. 13175 do
not apply, and a tribal summary impact statement is not required.
[[Page 85908]]
J. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. This rulemaking is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.
K. Privacy Act Statement
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 <a href="http://www.regulations.gov">www.regulations.gov</a>, as described in the
system of records notice, DOT/ALL-14 FDMS, accessible through
<a href="http://www.dot.gov/privacy">www.dot.gov/privacy</a>. To facilitate comment tracking and response, we
encourage 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 you wish to provide comments containing
proprietary or confidential information, please contact the agency for
alternate submission instructions.
L. Rulemaking Summary, 5 U.S.C. 553(b)(4)
As required by 5 U.S.C. 553(b)(4), a summary of this rulemaking can
be found in the Abstract section of the Department's Unified Agenda
entry for this rulemaking at <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202404&RIN=2130-AC97">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202404&RIN=2130-AC97</a>.
List of Subjects in 49 CFR Part 211
Administrative practice and procedure, Rules of practice.
The Proposed Rule
For the reasons discussed in the preamble, FRA proposes to amend
part 211 of chapter II, subtitle B of title 49, Code of Federal
Regulations, as follows:
PART 211--RULES OF PRACTICE
0
1. The authority citation for part 211 continues to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504,
and 49 CFR 1.89.
0
2. Revise Sec. 211.1 to read as follows:
Sec. 211.1 General.
(a) This part prescribes rules of practice that apply to rulemaking
and waiver proceedings, review of emergency orders issued under 49
U.S.C. 20104, and miscellaneous safety-related proceedings and informal
safety inquiries. Each proceeding under the Safety Act, as defined at
paragraph (b)(3) of this section, shall be disposed of within 12 months
after the date it is initiated. A proceeding shall be deemed to be
initiated and the time period for its disposition shall begin on the
date a petition or application that complies with the requirements of
this chapter is confirmed to be complete by FRA.
(b) As used in this part--
(1) Administrator means the Federal Railroad Administrator or the
Deputy Administrator or the delegate of either of them.
(2) Waiver includes exemption.
(3) Safety Act means the Federal Railroad Safety Act of 1970, as
amended (49 U.S.C. ch. 201 et seq.).
(4) Docket Clerk means the Docket Clerk, U.S. Department of
Transportation, Docket Operations, <a href="http://www.regulations.gov">www.regulations.gov</a>.
(5) Railroad Safety Board means the Railroad Safety Board, Office
of Railroad Safety, Federal Railroad Administration, Washington, DC
20590.
(6) In the Public Interest means the proposed request demonstrates
positive factors including, but not limited to, empowering workers,
ensuring equity, protecting the environment, creating robust
infrastructure, enabling adaptability and resiliency, bringing legacy
systems up to current standards, allowing for experimentation
consistent with railroad safety, providing opportunities to
collaborate, ensuring interoperability, integrating across
transportation modes, and the well-being of the public at large.
(7) Consistent with railroad safety means the proposal is at least
as safe as or safer than the status quo (i.e., without the proposed
relief).
(c) Records relating to proceedings and inquiries subject to this
part are available for inspection as provided in part 7 of this title.
0
3. Amend Sec. 211.7 by revising paragraph (b)(1) to read as follows:
Sec. 211.7 Filing requirements.
* * * * *
(b) * * *
(1) All petitions and applications subject to this part, including
applications for special approval under Sec. Sec. 211.55 and 238.21 of
this chapter, petitions for approval under Sec. 238.203 of this
chapter, and signal applications under parts 235 and 236 of this
chapter, shall be submitted to FRA via email to <a href="/cdn-cgi/l/email-protection#2a6c786b7d4b435c4f58596a4e455e044d455c"><span class="__cf_email__" data-cfemail="cd8b9f8c9aaca4bba8bfbe8da9a2b9e3aaa2bb">[email protected]</span></a>.
Each petition and application received shall be acknowledged in
writing. The acknowledgment shall contain the docket number assigned to
the petition or application and state the date FRA determined the
petition or application was complete. Within 60 days following receipt,
FRA will advise the petitioner or applicant of any deficiencies in its
petition or application.
* * * * *
0
4. Revise Sec. 211.9 to read as follows:
Sec. 211.9 Content of waiver and other safety-related proceeding
petitions.
Each petition for waiver or other safety-related proceeding for
regulatory relief must:
(a) Specify the rule, regulation, or standard that the petitioner
seeks to have waived.
(b) Explain the interest of the petitioner, and the need for the
action requested; explain the nature and extent of the relief sought,
and identify and describe the persons, equipment, installations, and
locations to be covered by the waiver.
(c) Contain sufficient information to support the action sought
including an evaluation of anticipated impacts of the action sought.
Each petition pertaining to safety regulations must also contain
relevant safety data and analysis to demonstrate the petition is in the
public interest and consistent with railroad safety, and outline the
metrics to be used to determine effectiveness of the waiver or other
relief, if granted.
(d) Include documentation demonstrating meaningful good faith
consultation with potentially affected stakeholders, including
applicable rail labor stakeholders, on the proposed request for relief,
prior to submission to FRA for evaluation and processing.
(e) In any request for renewal or expansion:
(1) provide data on the overall effectiveness of the waiver or
other relief;
(2) demonstrate compliance with any conditions that were included
in the previous grant of relief; and
(3) demonstrate how the waiver, suspension, or other approval for
relief is, and will continue to be, in the public interest and
consistent with railroad safety.
0
5. Add Sec. 211.10 to read as follows:
Sec. 211.10 Content of rulemaking petitions.
Each petition for rulemaking must:
(a) Set forth the text or substance of the rule, regulation,
standard, or
[[Page 85909]]
amendment proposed, or specify the rule, regulation, or standard that
the petitioner seeks to have repealed.
(b) Explain the interest of the petitioner, and the need for the
action requested.
(c) Contain sufficient information to support the action sought
including an evaluation of anticipated impacts of the action sought;
each evaluation must include an estimate of resulting costs to the
private sector, to consumers, and to Federal, State, and local
governments as well as an evaluation of resulting benefits, quantified
to the extent practicable.
0
6. Revise Sec. 211.11 to read as follows:
Sec. 211.11 Processing of petitions for rulemaking.
(a) General. Each petition for rulemaking filed as prescribed in
Sec. Sec. 211.7 and 211.10 is referred to the head of the office
responsible for the subject matter of the petition to review and
recommend appropriate action to the Administrator. No public hearing or
oral argument is held before the Administrator decides whether the
petition should be granted. However, a notice may be published in the
Federal Register inviting written comments concerning the petition.
Each petition shall be granted or denied not later than six months
after its receipt by the Docket Clerk.
(b) Grants. If the Administrator determines that a rulemaking
petition complies with the requirements of Sec. 211.10 and that
rulemaking is justified, the Administrator initiates a rulemaking
proceeding by publishing an advance notice or notice of proposed
rulemaking in the Federal Register.
(c) Denials. If the Administrator determines that a rulemaking
petition does not comply with the requirements of Sec. 211.10 or that
rulemaking is not justified, the Administrator denies the petition. If
the petition pertains to railroad safety, the Administrator may also
initiate an informal safety inquiry under Sec. 211.61.
(d) Notification; closing of docket. Whenever the Administrator
grants or denies a rulemaking petition, a notice of the grant or denial
is sent to the petitioner. If the petition is denied, the proceeding is
terminated and the docket for that petition is closed.
0
7. Revise Sec. 211.13 to read as follows:
Sec. 211.13 Initiation and completion of rulemaking proceedings.
The Administrator initiates all rulemaking proceedings on the
Administrator's own motion by publishing an advance notice of proposed
rulemaking or a notice of proposed rulemaking in the Federal Register.
However, the Administrator may consider the recommendations of
interested persons or other agencies of the United States. A separate
docket is established and maintained for each rulemaking proceeding.
Each rulemaking proceeding shall be completed not later than 12 months
after the initial notice in that proceeding is published in the Federal
Register. However, if it was initiated as the result of the granting of
a rulemaking petition, the rulemaking proceeding shall be completed not
later than 12 months after the petition was filed as prescribed in
Sec. Sec. 211.7 and 211.10.
0
8. Amend Sec. 211.41 by revising paragraph (b) to read as follows:
Sec. 211.41 Processing of petitions for waiver of safety rules.
* * * * *
(b) Notice and hearing. A notice is published in the Federal
Register, an opportunity for public comment is provided (with a
standard comment period of 60 days), and a hearing is held in
accordance with Sec. 211.25, before the petition is granted or denied.
Any comment period shorter than 60 days must be authorized by the
Administrator.
* * * * *
0
9. Amend Sec. 211.43 by revising paragraph (b) to read as follows:
Sec. 211.43 Processing of other waiver petitions.
* * * * *
(b) Notice and hearing. A notice is published in the Federal
Register, an opportunity for public comment is provided (with a
standard comment period of 60 days), and a hearing is held in
accordance with Sec. 211.25, before the petition is granted or denied.
Any comment period shorter than 60 days must be authorized by the
Administrator.
* * * * *
Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2024-24586 Filed 10-28-24; 8:45 am]
BILLING CODE 4910-06-P
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