Monetary Threshold for Reporting Rail Equipment Accidents/Incidents for Calendar Year 2018, 9219-9222 [2018-04349]
Download as PDF
<![CDATA[
9219
Federal Register / Vol. 83, No. 43 / Monday, March 5, 2018 / Rules and Regulations
by reference as specified in § 63.14) as
described in paragraph (a)(46)(i)(A) of
this section:
(A) The material incorporated into the
Vermont Air Pollution Regulations at
Chapter 5, Air Pollution Control, section
5–253.11, Perchloroethylene Dry
Cleaning (effective as of December 15,
2016) pertaining to area source dry
cleaning facilities in the State of
Vermont jurisdiction, and approved
under the procedures in § 63.93 to be
implemented and enforced in place of
the requirements for area source dry
cleaning facilities in the Federal
NESHAP for Perchloroethylene Dry
Cleaning Facilities (subpart M of this
part), effective as of July 11, 2008. For
purposes of this paragraph (a)(46) the
term ‘‘area source dry cleaning
facilities’’ means any source that
qualifies as an area source under
§ 63.320(h).
(1) Authorities not delegated. (i)
Vermont is not delegated the
Administrator’s authority to implement
and enforce Vermont Air Pollution
Control Regulations, Chapter 5, Air
Pollution Control, section 5–253.11, in
lieu of those provisions of subpart M of
this part which apply to major sources,
as defined in § 63.320(g).
(ii) [Reserved]
(2) [Reserved]
(B) [Reserved]
(ii) [Reserved]
*
*
*
*
*
[FR Doc. 2018–04277 Filed 3–2–18; 8:45 am]
BILLING CODE 6560–50–P
Federal Railroad Administration
Washington, DC 20590 (telephone 202–
493–0665).
SUPPLEMENTARY INFORMATION:
49 CFR Part 225
Background
[FRA–2008–0136, Notice No. 10]
A ‘‘rail equipment accident/incident’’
is a collision, derailment, fire,
explosion, act of God, or other event
involving the operation of railroad ontrack equipment (standing or moving)
that results in damages to railroad ontrack equipment, signals, tracks, track
structures, or roadbed, including labor
costs and the costs for acquiring new
equipment and material, greater than
the reporting threshold for the year in
which the event occurs. See 49 CFR
225.19(c). A railroad must report each
rail equipment accident/incident to FRA
using the Rail Equipment Accident/
Incident Report (Form FRA F 6180.54).
See 49 CFR 225.19(b), (c), 225.21(a).
Paragraphs (c) and (e) of 49 CFR 225.19
further provide that FRA will adjust the
dollar figure constituting the reporting
threshold, if necessary, every year under
the procedures in 49 CFR part 225
Appendix B to reflect any cost increases
or decreases.
Approximately one year has passed
since FRA reviewed the reporting
threshold. See 81 FR 94271, Dec. 23,
2016. Consequently, FRA has
recalculated the reporting threshold
under 49 CFR 225.19(c), using updated
costs for labor and equipment. FRA has
determined the current reporting
threshold of $10,700, which applies to
rail equipment accidents/incidents that
occur during CY 2017, should remain
the same for rail equipment accidents/
incidents that occur during CY 2018.
The specific inputs to the equation set
forth in Appendix B (Tnew = Tprior *
[1 + 0.4(Wnew ¥ Wprior)/Wprior +
0.6(Enew ¥ Eprior)/100]) are:
DEPARTMENT OF TRANSPORTATION
RIN 2130–ZA16
Monetary Threshold for Reporting Rail
Equipment Accidents/Incidents for
Calendar Year 2018
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
FRA’s accident/incident
reporting regulations require railroads to
report to the agency all rail equipment
accidents/incidents above the monetary
reporting threshold (reporting
threshold) for that calendar year (CY).
There is no change to the CY 2017
reporting threshold ($10,700) for CY
2018 as the overall increase in wages
and equipment costs were not great
enough to cause the threshold to change
when rounded to the nearest $100.
DATES: This final rule is effective March
5, 2018. This final rule is applicable
January 1, 2018.
FOR FURTHER INFORMATION CONTACT:
Kebo Chen, Staff Director, U.S.
Department of Transportation, Federal
Railroad Administration, Office of
Safety Analysis, RRS–22, Mail Stop 25,
West Building 3rd Floor, Room W33–
314, 1200 New Jersey Ave. SE,
Washington, DC 20590 (telephone 202–
493–6079); or Senya Waas, Trial
Attorney, U.S. Department of
Transportation, Federal Railroad
Administration, Office of Chief Counsel,
RCC–10, West Building 3rd Floor, Room
W31–223, 1200 New Jersey Ave. SE,
SUMMARY:
Wnew
Wprior
Enew
Eprior
$10,700
sradovich on DSK3GMQ082PROD with RULES
Tprior
$29.77918
$29.99942
203.83333
203.33333
Where:
Tnew = New threshold;
Tprior = Prior threshold (with reference to
the threshold, ‘‘prior’’ refers to the
previous threshold rounded to the
nearest $100, as reported in the Federal
Register);
Wnew = New average hourly wage rate, in
dollars;
Wprior = Prior average hourly wage rate, in
dollars;
Enew = New equipment average Producer
Price Index (PPI) value;
Eprior = Prior equipment average PPI value.
See 49 CFR part 225 Appendix B. Using
the above figures, the calculated new
threshold, represented as Tnew, is
VerDate Sep<11>2014
15:56 Mar 02, 2018
Jkt 244001
$10,700.64, which is rounded to the
nearest $100 for a final reporting
threshold of $10,700 for CY 2018.1
1 Wage statistics are available from the Surface
Transportation Board (STB), ‘‘Quarterly Wage Form
A&B,’’ at https://www.stb.gov/stb/industry/econ_
reports.html (visited December 5, 2017). The
average hourly wage rate is determined by dividing
the compensation for time worked at straight time
rates by the service hours worked at straight time
rates (yielding dollars per hour). FRA averages the
second-quarter data reported for the Group No. 300
Maintenance of Way and Structures employees, and
the Group No. 400 Maintenance of Equipment and
Stores employees.
The equipment PPI is available at the Bureau of
Labor Statistics (BLS), U.S. Department of Labor,
‘‘PPI Databases: Commodity Data,’ at https://
PO 00000
Frm 00085
Fmt 4700
Sfmt 4700
FRA intends to publish a rulemaking
(RIN 2130–AC49) to reexamine its
method for calculating the reporting
threshold in 2018 because more
accurate methodologies for calculating
the threshold are available. FRA
believes updating its methodology will
ensure the reporting threshold reflects
changes in equipment and labor costs as
accurately as possible.
www.bls.gov/ppi/ (visited December 5, 2017). Select
Group 14 Transportation Equipment, then Item 144
Railroad Equipment, followed by checking Not
Seasonally Adjusted. The complete Series ID is
WPU144, base date 1982.
E:\FR\FM\05MRR1.SGM
05MRR1
9220
Federal Register / Vol. 83, No. 43 / Monday, March 5, 2018 / Rules and Regulations
Notice and Comment Procedures
FRA is proceeding directly to a final
rule as it finds public notice and
comment to be unnecessary per the
‘‘good cause’’ exemption in 5 U.S.C.
553(b)(3)(B). FRA made this finding
because it: (1) Is required under current
regulations to establish the monetary
reporting threshold; (2) Is utilizing a
formula developed after notice and
comment in a final rule published in
2005 (70 FR 75414, Dec. 20, 2005); and
(3) is not exercising any discretion in
calculating and applying the monetary
threshold for 2018.
Regulatory Evaluation
Executive Orders 12866 and 13563 and
DOT Regulatory Policies and Procedures
FRA evaluated this final rule under
existing policies and procedures, and
determined it is non-significant under
both Executive Orders 12866 and 13563,
and DOT policies and procedures. See
44 FR 11034, Feb. 26, 1979.
Furthermore, this final rule is exempt
from the regulatory budgeting and twofor-one requirements of Executive Order
13771 as it has been determined to be
non-significant.
Regulatory Flexibility Act
FRA developed this rule under
Executive Order 13272, Proper
Consideration of Small Entities in
Agency Rulemaking, and DOT’s
procedures and policies to promote
compliance with the Regulatory
Flexibility Act (RFA) to ensure potential
impacts of rules on small entities are
properly considered. See E.O. 13272; 5
U.S.C. 601.
The RFA requires an agency to review
regulations to assess their impact on
small entities, unless the Secretary
certifies the rule will not have a
significant economic impact on a
substantial number of small entities.
Under Section 312 of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104–
121), Federal agencies may adopt their
own size standards for small entities in
consultation with both the Small
Business Administration and public
comment. Under that authority, FRA
has published a final statement of
agency policy formally establishing, for
FRA’s regulatory purposes, that ‘‘small
entities’’ are railroads, contractors, and
hazardous materials shippers that meet
the revenue requirements of a Class III
railroad as set forth in 49 CFR 1201.1–
1 ($20 million or less in inflationadjusted annual revenues, and
commuter railroads or small
governmental jurisdictions that serve
populations of 50,000 or less). See 49
CFR part 209 Appendix C. FRA used
this definition for the current
rulemaking.
About 748 of the approximately 799
railroads in the United States are
considered small entities by FRA. FRA
certifies this final rule will have no
significant economic impact on a
substantial number of small entities. To
the extent this rule has any impact on
small entities, the impact will be neutral
or insignificant. The frequency of rail
equipment accidents/incidents, and
therefore also the frequency of required
reporting, is generally proportional to
the size of the railroad. A railroad
employing thousands of employees and
operating trains millions of miles is
exposed to greater risks than one with
a substantially smaller operation. Small
railroads may go for months at a time
without having a reportable occurrence
of any type, and even longer without
having a rail equipment accident/
incident. Class III reported rail
equipment accidents/incidents for a
five-year period are shown below.
RAIL EQUIPMENT ACCIDENT/INCIDENTS (TRAIN ACCIDENTS) REPORTED BY SMALL RAILROADS
Class III train
accidents
Year
2012
2013
2014
2015
2016
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
...........................................................................................................................
All railroad train
accidents
289
307
272
288
249
Percent
Class III train
accidents/all
railroad train
accidents
1,766
1,853
1,887
1,936
1,646
16
17
14
15
15
sradovich on DSK3GMQ082PROD with RULES
Source: FRA Safety Data website at https://safetydata.fra.dot.gov/OfficeofSafety/Default.aspx (visited December 8, 2017), Agency query.
On average over those five calendar
years, small railroads reported about
15% (ranging from 14% to 17%) of the
total number of rail equipment
accidents/incidents. FRA notes that
these data are subject to minor changes
due to additional reporting.
The monetary reporting threshold,
when rounded, did not increase for CY
2018. In general, however, absent this
rulemaking (i.e., absent increasing the
reporting threshold in future years), the
number of reportable accidents/
incidents in future years would likely
increase, as keeping the same threshold
in place would not allow it to keep pace
with the likely increases in wages and
rail equipment repair costs. (Note that
the calculated monetary threshold
(before rounding) for CY 2017 was
$10,698 versus $10,701 for CY 2018.)
VerDate Sep<11>2014
15:56 Mar 02, 2018
Jkt 244001
Therefore, this rule will be neutral in
effect (i.e., accidents/incidents
reportable by railroads in CY 2017 will
be reportable in CY 2018). Any
recordkeeping burden will not be
significant, and will affect the large
railroads more than the small railroads
due to the higher proportion of
reportable rail equipment accidents/
incidents experienced by large entities.
Furthermore, FRA has determined the
RFA does not apply to this rulemaking.
As this rule updates the reporting
threshold for CY 2018 using the formula
developed through notice and comment
rulemaking and published in Appendix
B to 49 CFR part 225, FRA finds notice
and public comment is unnecessary and
would serve no public benefit. The
Small Business Administration’s A
Guide for Government Agencies: How to
PO 00000
Frm 00086
Fmt 4700
Sfmt 4700
Comply with the Regulatory Flexibility
Act, p. 55 (2017) provides:
If, under the APA or any rule of general
applicability governing federal grants to state
and local governments, the agency is
required to publish a general notice of
proposed rulemaking (NPRM), the RFA must
be considered [citing 5 U.S.C. 604(a)] . . . .
If an NPRM is not required, the RFA does not
apply.
As this rulemaking does not require a
Notice of Proposed Rulemaking, the
RFA does not apply.
Paperwork Reduction Act
There are no new or additional
information collection requirements
associated with this final rule. FRA’s
collection of accident/incident reporting
and recordkeeping information is
currently approved under OMB No.
E:\FR\FM\05MRR1.SGM
05MRR1
Federal Register / Vol. 83, No. 43 / Monday, March 5, 2018 / Rules and Regulations
2130–0500. Therefore, FRA is not
required to provide an estimate of a
public reporting burden in this
document.
sradovich on DSK3GMQ082PROD with RULES
Federalism Implications
Executive Order 13132 (64 FR 43255,
Aug. 10, 1999) requires FRA to develop
an accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ See E.O. 13132. Policies
that have federalism implications are
defined in Executive Order 13132 to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ See E.O. 13132.
Under Executive Order 13132, the
agency may not issue a regulation with
federalism implications that imposes
substantial direct compliance costs, and
that is not required by statute, unless
the Federal government provides the
funds necessary to pay the direct
compliance costs incurred by State and
local governments, or the agency
consults with State and local
government officials early in the process
of developing the regulation. See E.O.
13132. Where a regulation has
federalism implications and preempts
State law, the agency seeks to consult
with State and local officials in the
process of developing the regulation.
FRA analyzed this final rule under the
principles and criteria in Executive
Order 13132. This rule will not have a
substantial direct effect on States, on the
relationship between the national
government and the States, or on the
distribution of power and the
responsibilities among the various
levels of government. See Executive
Order 13132. In addition, FRA
determined this rule does not impose
substantial direct compliance costs on
State and local governments.
Accordingly, FRA concluded the
consultation and funding requirements
of Executive Order 13132 do not apply,
and preparation of a federalism
assessment is not required.
Environmental Impact
FRA evaluated this final rule under its
Procedures for Considering
Environmental Impacts (FRA
Procedures) (64 FR 28545, May 26,
1999) as required by the National
Environmental Policy Act (42 U.S.C.
4321 et seq.), other environmental
statutes, Executive Orders, and related
regulatory requirements. FRA has
determined this final rule is not a major
VerDate Sep<11>2014
15:56 Mar 02, 2018
Jkt 244001
9221
FRA action requiring the preparation of
an environmental impact statement or
environmental assessment because it is
categorically excluded from detailed
environmental review under FRA
Procedures Section 4(c)(20), which
addresses the promulgation of railroad
safety rules and policy statements that
do not result in significantly increased
emissions of air or water pollutants or
noise or increased traffic congestion in
any mode of transportation. See 64 FR
28547, May 26, 1999.
Consistent with FRA Procedures
Section 4(c)(20), FRA concluded that no
extraordinary circumstances exist with
respect to this regulation that might
trigger the need for a more detailed
environmental review. As a result, FRA
finds this rule is not a major Federal
action that significantly affects the
quality of the human environment.
published in the Federal Register) that
promulgates, or is expected to lead to
the promulgation of, a final rule or
regulation (including a notice of
inquiry, advance notice of proposed
rulemaking, and notice of proposed
rulemaking) that: (1)(i) Is a significant
regulatory action under Executive Order
12866 or any successor order, and (ii) is
likely to have a significant adverse effect
on the supply, distribution, or use of
energy; or (2) is designated by the
Administrator of the Office of
Information and Regulatory Affairs as a
significant energy action. See E.O.
13211. FRA has evaluated this rule
under Executive Order 13211. FRA has
determined this rule will not have a
significant adverse effect on the supply,
distribution, or use of energy, and, thus,
is not a ‘‘significant energy action’’
under Executive Order 13211.
Unfunded Mandates Reform Act of 1995
Privacy Act
Under Section 201 of the Unfunded
Mandates Reform Act of 1995 (Reform
Act) (Pub. L. 104–4, 2 U.S.C. 1531), each
Federal agency shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law). See 2 U.S.C. 1531 Section 201.
Section 202 of the Reform Act (2 U.S.C.
1532) further requires each agency to
prepare a comprehensive written
statement for any proposed or final rule
that includes a Federal mandate that
may result in the expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$100,000,000 or more (adjusted
annually for inflation) in any 1
year . . . .2
This final rule will not result in the
expenditure of more than $156,000,000
(the value equivalent of $100,000,000 in
2015 dollars) by the public sector in any
one year. Thus, preparation of such a
statement is not required.
Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ 66 FR 28355, May 22,
2001. Under Executive Order 13211, a
‘‘significant energy action’’ is defined as
any action by an agency (normally
2 See U.S. Department of Transportation,
‘‘Guidance—Threshold of Significant Regulatory
Actions under the Unfunded Mandates Reform Act
of 1995,’’ April 4, 2016, https://
www.transportation.gov/office-policy/
transportation-policy/threshold-significantregulatory-actions-under-unfunded-mandat-0, as
accessed December 12, 2017.
PO 00000
Frm 00087
Fmt 4700
Sfmt 4700
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform its rulemaking process.
DOT posts these comments, without
edit, to www.regulations.gov, as
described in the system of records
notice, DOT/ALL–14 FDMS, accessible
through www.dot.gov/privacy. In order
to facilitate comment tracking and
response, FRA encourages commenters
to provide their name, or the name of
their organization; however, submission
of names is completely optional.
Whether or not commenters identify
themselves, all timely comments will be
fully considered. If one wishes to
provide comments containing
proprietary or confidential information,
please contact the agency for alternate
submission instructions.
List of Subjects in 49 CFR Part 225
Investigations, Penalties, Railroad
safety, Reporting and recordkeeping
requirements.
The Rule
In consideration of the foregoing, FRA
amends part 225 of chapter II, subtitle
B of title 49, Code of Federal
Regulations, as follows:
PART 225–[AMENDED]
1. The authority citation for part 225
continues to read as follows:
■
Authority: 49 U.S.C. 103, 322(a), 20103,
20107, 20901–02, 21301, 21302, 21311; 28
U.S.C. 2461, note; and 49 CFR 1.89.
2. In § 225.19, revise the first sentence
of paragraph (c), and paragraph (e) to
read as follows:
■
E:\FR\FM\05MRR1.SGM
05MRR1
9222
Federal Register / Vol. 83, No. 43 / Monday, March 5, 2018 / Rules and Regulations
§ 225.19 Primary groups of accidents/
incidents.
*
*
*
*
*
(c) Group II—Rail equipment. Rail
equipment accidents/incidents are
collisions, derailments, fires,
explosions, acts of God, and other
events involving the operation of ontrack equipment (standing or moving)
that result in damages higher than the
current reporting threshold (i.e., $6,700
for calendar years 2002 through 2005,
$7,700 for calendar year 2006, $8,200
for calendar year 2007, $8,500 for
calendar year 2008, $8,900 for calendar
year 2009, $9,200 for calendar year
2010, $9,400 for calendar year 2011,
$9,500 for calendar year 2012, $9,900
for calendar year 2013, $10,500 for
calendar year 2014, $10,500 for calendar
year 2015, $10,500 for calendar year
2016, and $10,700 for calendar years
2017 and beyond, until revised) to
railroad on-track equipment, signals,
tracks, track structures, or roadbed,
including labor costs and the costs for
acquiring new equipment and
material.
*
*
*
*
*
(e) The reporting threshold is $6,700
for calendar years 2002 through 2005,
$7,700 for calendar year 2006, $8,200
for calendar year 2007, $8,500 for
calendar year 2008, $8,900 for calendar
year 2009, $9,200 for calendar year
2010, $9,400 for calendar year 2011,
$9,500 for calendar year 2012, $9,900
for calendar year 2013, $10,500 for
calendar year 2014, $10,500 for calendar
year 2015, $10,500 for calendar year
2016, and $10,700 for calendar years
2017 and beyond, until revised. The
procedure for determining the reporting
threshold for calendar years 2006 and
beyond appears as paragraphs 1–8 of
appendix B to part 225.
*
*
*
*
*
Juan D. Reyes, III,
Chief Counsel.
[FR Doc. 2018–04349 Filed 3–2–18; 8:45 am]
BILLING CODE 4910–06–P
SURFACE TRANSPORTATION BOARD
49 CFR Part 1102
sradovich on DSK3GMQ082PROD with RULES
[Docket No. EP 739]
Ex Parte Communications in Informal
Rulemaking Proceedings
Surface Transportation Board.
Final rule.
AGENCY:
ACTION:
In this decision, the Surface
Transportation Board (the Board)
modifies its regulations to permit,
subject to disclosure requirements, ex
SUMMARY:
VerDate Sep<11>2014
15:56 Mar 02, 2018
Jkt 244001
parte communications in informal
rulemaking proceedings. The Board also
adopts other changes to its ex parte
rules that would clarify and update
when and how interested persons may
communicate informally with the Board
regarding pending proceedings other
than rulemakings. The intent of the
modified regulations is to enhance the
Board’s ability to make informed
decisions through increased stakeholder
communications while ensuring that the
Board’s record-building process in
rulemaking proceedings remains
transparent and fair.
DATES: This rule is effective on April 4,
2018.
ADDRESSES: Requests for information or
questions regarding this final rule
should reference Docket No. EP 739 and
be in writing addressed to: Chief,
Section of Administration, Office of
Proceedings, Surface Transportation
Board, 395 E Street SW, Washington, DC
20423–0001.
FOR FURTHER INFORMATION CONTACT:
Jonathon Binet at (202) 245–0368.
Assistance for the hearing impaired is
available through the Federal
Information Relay Service (FIRS) at
(800) 877–8339.
SUPPLEMENTARY INFORMATION: The
Board’s current regulations at 49 CFR
1102.2 generally prohibit most informal
communications between the Board and
interested persons concerning the merits
of pending Board proceedings. These
regulations require that communications
with the Board or Board staff regarding
the merits of an ‘‘on-the-record’’ Board
proceeding not be made on an ex parte
basis (i.e., without the knowledge or
consent of the parties to the
proceeding).1 See 49 CFR 1102.2(a)(3),
(c). The current regulations detail the
procedures required in the event an
impermissible communication occurs
and the potential sanctions for
violations. See 49 CFR 1102.2(e), (f).
In 1977, the Board’s predecessor
agency, the Interstate Commerce
Commission (ICC), determined that the
general prohibition on ex parte
communications in proceedings should
include the informal rulemaking
proceedings the Board uses to
promulgate regulations.2 See Revised
1 ‘‘On-the-record proceeding’’ means ‘‘any matter
described in Sections 556–557 of the
Administrative Procedure Act [(APA)] (5 U.S.C.
556–557) or any matter required by the
Constitution, statute, Board rule, or by decision in
the particular case, that is decided solely on the
record made in a Board proceeding.’’ 49 CFR
1102.2(a)(1).
2 The APA, 5 U.S.C. 551–559, governs two
categories of agency rulemaking: Formal and
informal. Formal rulemaking is subject to specific
procedural requirements, including hearings,
PO 00000
Frm 00088
Fmt 4700
Sfmt 4700
Rules of Practice, 358 I.C.C. 323, 345
(1977).3 At that time, several court
decisions expressed the view that ex
parte communications in informal
rulemaking proceedings were inherently
suspect.4 Accordingly, it has long been
the agency’s practice to prohibit
meetings with individual stakeholders
on issues that are the topic of pending
informal rulemaking proceedings.
At the same time, however, other
court decisions were more tolerant of ex
parte communications in informal
rulemaking proceedings, so long as the
proceedings were not quasi-adjudicative
in nature and the process remained
fair.5 In 1981, in Sierra Club v. Costle,
657 F.2d 298 (D.C. Cir. 1981), the U.S.
Court of Appeals for the District of
Columbia Circuit significantly clarified
and liberalized treatment of this issue.
In that case, the court considered the
‘‘timing, source, mode, content, and the
extent of . . . disclosure’’ of numerous
written and oral ex parte
communications received after the close
of the comment period to determine
whether those communications violated
the governing statute or due process. Id.
at 391. The court held that, because the
agency docketed most of the ex parte
communications and none of the
comments were docketed ‘‘so late as to
presiding officers, and a strict ex parte prohibition.
See 5 U.S.C. 556–57. But most federal agency
rulemakings, including the Board’s, are informal
rulemaking proceedings subject instead to the less
restrictive ‘‘notice-and-comment’’ requirements of 5
U.S.C. 553.
3 In Revised Rules of Practice, the ICC stated ‘‘ex
parte communication during a rulemaking is just as
improper as it is during any other proceeding. The
Commission’s decisions should be influenced only
by statements that are a matter of public record.’’
358 I.C.C. at 345.
4 See, e.g., Home Box Office v. Fed. Commc’ns
Comm’n, 567 F.2d 9, 51–59 (D.C. Cir. 1977) (finding
that ex parte communications that occurred after
the notice of proposed rulemaking (NPRM) violated
the due process rights of the parties who were not
privy to the communications because the written
administrative record would not reflect the possible
‘‘undue influence’’ exerted by those stakeholders
who had engaged in ex parte communications);
Nat’l Small Shipments Traffic Conference v. ICC,
590 F.2d 345, 351 (D.C. Cir. 1978) (finding ex parte
communications ‘‘violate[d] the basic fairness of a
hearing which ostensibly assures the public a right
to participate in agency decision making,’’
foreclosing effective judicial review); Sangamon
Valley Television Corp. v. United States, 269 F.2d
221, 224 (D.C. Cir. 1959) (finding that undisclosed
ex parte communications between agency
commissioners and a stakeholder were unlawful
because the informal rulemaking involved
‘‘resolution of conflicting private claims to a
valuable privilege, and that basic fairness requires
such a proceeding to be carried on in the open’’).
5 See, e.g., Action for Children’s Television v. Fed.
Commc’ns Comm’n, 564 F.2d 458 (D.C. Cir. 1977)
(upholding the agency’s decision not to issue
proposed rules and finding no APA violation for ex
parte discussions where the agency provided a
meaningful opportunity for public participation and
the proceeding did not involve competing claims
for a valuable privilege).
E:\FR\FM\05MRR1.SGM
05MRR1
]]>Agencies
[Federal Register Volume 83, Number 43 (Monday, March 5, 2018)]
[Rules and Regulations]
[Pages 9219-9222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04349]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[FRA-2008-0136, Notice No. 10]
RIN 2130-ZA16
Monetary Threshold for Reporting Rail Equipment Accidents/
Incidents for Calendar Year 2018
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FRA's accident/incident reporting regulations require
railroads to report to the agency all rail equipment accidents/
incidents above the monetary reporting threshold (reporting threshold)
for that calendar year (CY). There is no change to the CY 2017
reporting threshold ($10,700) for CY 2018 as the overall increase in
wages and equipment costs were not great enough to cause the threshold
to change when rounded to the nearest $100.
DATES: This final rule is effective March 5, 2018. This final rule is
applicable January 1, 2018.
FOR FURTHER INFORMATION CONTACT: Kebo Chen, Staff Director, U.S.
Department of Transportation, Federal Railroad Administration, Office
of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room
W33-314, 1200 New Jersey Ave. SE, Washington, DC 20590 (telephone 202-
493-6079); or Senya Waas, Trial Attorney, U.S. Department of
Transportation, Federal Railroad Administration, Office of Chief
Counsel, RCC-10, West Building 3rd Floor, Room W31-223, 1200 New Jersey
Ave. SE, Washington, DC 20590 (telephone 202-493-0665).
SUPPLEMENTARY INFORMATION:
Background
A ``rail equipment accident/incident'' is a collision, derailment,
fire, explosion, act of God, or other event involving the operation of
railroad on-track equipment (standing or moving) that results in
damages to railroad on-track equipment, signals, tracks, track
structures, or roadbed, including labor costs and the costs for
acquiring new equipment and material, greater than the reporting
threshold for the year in which the event occurs. See 49 CFR 225.19(c).
A railroad must report each rail equipment accident/incident to FRA
using the Rail Equipment Accident/Incident Report (Form FRA F 6180.54).
See 49 CFR 225.19(b), (c), 225.21(a). Paragraphs (c) and (e) of 49 CFR
225.19 further provide that FRA will adjust the dollar figure
constituting the reporting threshold, if necessary, every year under
the procedures in 49 CFR part 225 Appendix B to reflect any cost
increases or decreases.
Approximately one year has passed since FRA reviewed the reporting
threshold. See 81 FR 94271, Dec. 23, 2016. Consequently, FRA has
recalculated the reporting threshold under 49 CFR 225.19(c), using
updated costs for labor and equipment. FRA has determined the current
reporting threshold of $10,700, which applies to rail equipment
accidents/incidents that occur during CY 2017, should remain the same
for rail equipment accidents/incidents that occur during CY 2018. The
specific inputs to the equation set forth in Appendix B (Tnew = Tprior
* [1 + 0.4(Wnew - Wprior)/Wprior + 0.6(Enew - Eprior)/100]) are:
----------------------------------------------------------------------------------------------------------------
Tprior Wnew Wprior Enew Eprior
----------------------------------------------------------------------------------------------------------------
$10,700 $29.77918 $29.99942 203.83333 203.33333
----------------------------------------------------------------------------------------------------------------
Where:
Tnew = New threshold;
Tprior = Prior threshold (with reference to the threshold, ``prior''
refers to the previous threshold rounded to the nearest $100, as
reported in the Federal Register);
Wnew = New average hourly wage rate, in dollars;
Wprior = Prior average hourly wage rate, in dollars;
Enew = New equipment average Producer Price Index (PPI) value;
Eprior = Prior equipment average PPI value.
See 49 CFR part 225 Appendix B. Using the above figures, the calculated
new threshold, represented as Tnew, is $10,700.64, which is rounded to
the nearest $100 for a final reporting threshold of $10,700 for CY
2018.\1\
---------------------------------------------------------------------------
\1\ Wage statistics are available from the Surface
Transportation Board (STB), ``Quarterly Wage Form A&B,'' at https://www.stb.gov/stb/industry/econ_reports.html (visited December 5,
2017). The average hourly wage rate is determined by dividing the
compensation for time worked at straight time rates by the service
hours worked at straight time rates (yielding dollars per hour). FRA
averages the second-quarter data reported for the Group No. 300
Maintenance of Way and Structures employees, and the Group No. 400
Maintenance of Equipment and Stores employees.
The equipment PPI is available at the Bureau of Labor Statistics
(BLS), U.S. Department of Labor, ``PPI Databases: Commodity Data,'
at https://www.bls.gov/ppi/ (visited December 5, 2017). Select Group
14 Transportation Equipment, then Item 144 Railroad Equipment,
followed by checking Not Seasonally Adjusted. The complete Series ID
is WPU144, base date 1982.
---------------------------------------------------------------------------
FRA intends to publish a rulemaking (RIN 2130-AC49) to reexamine
its method for calculating the reporting threshold in 2018 because more
accurate methodologies for calculating the threshold are available. FRA
believes updating its methodology will ensure the reporting threshold
reflects changes in equipment and labor costs as accurately as
possible.
[[Page 9220]]
Notice and Comment Procedures
FRA is proceeding directly to a final rule as it finds public
notice and comment to be unnecessary per the ``good cause'' exemption
in 5 U.S.C. 553(b)(3)(B). FRA made this finding because it: (1) Is
required under current regulations to establish the monetary reporting
threshold; (2) Is utilizing a formula developed after notice and
comment in a final rule published in 2005 (70 FR 75414, Dec. 20, 2005);
and (3) is not exercising any discretion in calculating and applying
the monetary threshold for 2018.
Regulatory Evaluation
Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures
FRA evaluated this final rule under existing policies and
procedures, and determined it is non-significant under both Executive
Orders 12866 and 13563, and DOT policies and procedures. See 44 FR
11034, Feb. 26, 1979. Furthermore, this final rule is exempt from the
regulatory budgeting and two-for-one requirements of Executive Order
13771 as it has been determined to be non-significant.
Regulatory Flexibility Act
FRA developed this rule under Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking, and DOT's
procedures and policies to promote compliance with the Regulatory
Flexibility Act (RFA) to ensure potential impacts of rules on small
entities are properly considered. See E.O. 13272; 5 U.S.C. 601.
The RFA requires an agency to review regulations to assess their
impact on small entities, unless the Secretary certifies the rule will
not have a significant economic impact on a substantial number of small
entities. Under Section 312 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Public Law 104-121), Federal agencies
may adopt their own size standards for small entities in consultation
with both the Small Business Administration and public comment. Under
that authority, FRA has published a final statement of agency policy
formally establishing, for FRA's regulatory purposes, that ``small
entities'' are railroads, contractors, and hazardous materials shippers
that meet the revenue requirements of a Class III railroad as set forth
in 49 CFR 1201.1-1 ($20 million or less in inflation-adjusted annual
revenues, and commuter railroads or small governmental jurisdictions
that serve populations of 50,000 or less). See 49 CFR part 209 Appendix
C. FRA used this definition for the current rulemaking.
About 748 of the approximately 799 railroads in the United States
are considered small entities by FRA. FRA certifies this final rule
will have no significant economic impact on a substantial number of
small entities. To the extent this rule has any impact on small
entities, the impact will be neutral or insignificant. The frequency of
rail equipment accidents/incidents, and therefore also the frequency of
required reporting, is generally proportional to the size of the
railroad. A railroad employing thousands of employees and operating
trains millions of miles is exposed to greater risks than one with a
substantially smaller operation. Small railroads may go for months at a
time without having a reportable occurrence of any type, and even
longer without having a rail equipment accident/incident. Class III
reported rail equipment accidents/incidents for a five-year period are
shown below.
Rail Equipment Accident/Incidents (Train Accidents) Reported by Small Railroads
----------------------------------------------------------------------------------------------------------------
Percent Class
III train
Year Class III train All railroad accidents/all
accidents train accidents railroad train
accidents
----------------------------------------------------------------------------------------------------------------
2012................................................... 289 1,766 16
2013................................................... 307 1,853 17
2014................................................... 272 1,887 14
2015................................................... 288 1,936 15
2016................................................... 249 1,646 15
----------------------------------------------------------------------------------------------------------------
Source: FRA Safety Data website at https://safetydata.fra.dot.gov/OfficeofSafety/Default.aspx (visited December
8, 2017), Agency query.
On average over those five calendar years, small railroads reported
about 15% (ranging from 14% to 17%) of the total number of rail
equipment accidents/incidents. FRA notes that these data are subject to
minor changes due to additional reporting.
The monetary reporting threshold, when rounded, did not increase
for CY 2018. In general, however, absent this rulemaking (i.e., absent
increasing the reporting threshold in future years), the number of
reportable accidents/incidents in future years would likely increase,
as keeping the same threshold in place would not allow it to keep pace
with the likely increases in wages and rail equipment repair costs.
(Note that the calculated monetary threshold (before rounding) for CY
2017 was $10,698 versus $10,701 for CY 2018.) Therefore, this rule will
be neutral in effect (i.e., accidents/incidents reportable by railroads
in CY 2017 will be reportable in CY 2018). Any recordkeeping burden
will not be significant, and will affect the large railroads more than
the small railroads due to the higher proportion of reportable rail
equipment accidents/incidents experienced by large entities.
Furthermore, FRA has determined the RFA does not apply to this
rulemaking. As this rule updates the reporting threshold for CY 2018
using the formula developed through notice and comment rulemaking and
published in Appendix B to 49 CFR part 225, FRA finds notice and public
comment is unnecessary and would serve no public benefit. The Small
Business Administration's A Guide for Government Agencies: How to
Comply with the Regulatory Flexibility Act, p. 55 (2017) provides:
If, under the APA or any rule of general applicability governing
federal grants to state and local governments, the agency is
required to publish a general notice of proposed rulemaking (NPRM),
the RFA must be considered [citing 5 U.S.C. 604(a)] . . . . If an
NPRM is not required, the RFA does not apply.
As this rulemaking does not require a Notice of Proposed
Rulemaking, the RFA does not apply.
Paperwork Reduction Act
There are no new or additional information collection requirements
associated with this final rule. FRA's collection of accident/incident
reporting and recordkeeping information is currently approved under OMB
No.
[[Page 9221]]
2130-0500. Therefore, FRA is not required to provide an estimate of a
public reporting burden in this document.
Federalism Implications
Executive Order 13132 (64 FR 43255, Aug. 10, 1999) requires FRA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' See E.O. 13132. Policies that have
federalism implications are defined in Executive Order 13132 to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' See E.O. 13132. Under Executive Order 13132, the
agency may not issue a regulation with federalism implications that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. See E.O.
13132. Where a regulation has federalism implications and preempts
State law, the agency seeks to consult with State and local officials
in the process of developing the regulation.
FRA analyzed this final rule under the principles and criteria in
Executive Order 13132. This rule will not have a substantial direct
effect on States, on the relationship between the national government
and the States, or on the distribution of power and the
responsibilities among the various levels of government. See Executive
Order 13132. In addition, FRA determined this rule does not impose
substantial direct compliance costs on State and local governments.
Accordingly, FRA concluded the consultation and funding requirements of
Executive Order 13132 do not apply, and preparation of a federalism
assessment is not required.
Environmental Impact
FRA evaluated this final rule under its Procedures for Considering
Environmental Impacts (FRA Procedures) (64 FR 28545, May 26, 1999) as
required by the National Environmental Policy Act (42 U.S.C. 4321 et
seq.), other environmental statutes, Executive Orders, and related
regulatory requirements. FRA has determined this final rule is not a
major FRA action requiring the preparation of an environmental impact
statement or environmental assessment because it is categorically
excluded from detailed environmental review under FRA Procedures
Section 4(c)(20), which addresses the promulgation of railroad safety
rules and policy statements that do not result in significantly
increased emissions of air or water pollutants or noise or increased
traffic congestion in any mode of transportation. See 64 FR 28547, May
26, 1999.
Consistent with FRA Procedures Section 4(c)(20), FRA concluded that
no extraordinary circumstances exist with respect to this regulation
that might trigger the need for a more detailed environmental review.
As a result, FRA finds this rule is not a major Federal action that
significantly affects the quality of the human environment.
Unfunded Mandates Reform Act of 1995
Under Section 201 of the Unfunded Mandates Reform Act of 1995
(Reform Act) (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall,
unless otherwise prohibited by law, assess the effects of Federal
regulatory actions on State, local, and tribal governments, and the
private sector (other than to the extent that such regulations
incorporate requirements specifically set forth in law). See 2 U.S.C.
1531 Section 201. Section 202 of the Reform Act (2 U.S.C. 1532) further
requires each agency to prepare a comprehensive written statement for
any proposed or final rule that includes a Federal mandate that may
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100,000,000 or more
(adjusted annually for inflation) in any 1 year . . . .\2\
---------------------------------------------------------------------------
\2\ See U.S. Department of Transportation, ``Guidance--Threshold
of Significant Regulatory Actions under the Unfunded Mandates Reform
Act of 1995,'' April 4, 2016, https://www.transportation.gov/office-policy/transportation-policy/threshold-significant-regulatory-actions-under-unfunded-mandat-0, as accessed December 12, 2017.
---------------------------------------------------------------------------
This final rule will not result in the expenditure of more than
$156,000,000 (the value equivalent of $100,000,000 in 2015 dollars) by
the public sector in any one year. Thus, preparation of such a
statement is not required.
Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355, May 22, 2001. Under Executive Order 13211, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates, or is expected to
lead to the promulgation of, a final rule or regulation (including a
notice of inquiry, advance notice of proposed rulemaking, and notice of
proposed rulemaking) that: (1)(i) Is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) is designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
See E.O. 13211. FRA has evaluated this rule under Executive Order
13211. FRA has determined this rule will not have a significant adverse
effect on the supply, distribution, or use of energy, and, thus, is not
a ``significant energy action'' under Executive Order 13211.
Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to www.regulations.gov, as described in the
system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. In order to facilitate comment tracking and
response, FRA encourages commenters to provide their name, or the name
of their organization; however, submission of names is completely
optional. Whether or not commenters identify themselves, all timely
comments will be fully considered. If one wishes to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.
List of Subjects in 49 CFR Part 225
Investigations, Penalties, Railroad safety, Reporting and
recordkeeping requirements.
The Rule
In consideration of the foregoing, FRA amends part 225 of chapter
II, subtitle B of title 49, Code of Federal Regulations, as follows:
PART 225-[AMENDED]
0
1. The authority citation for part 225 continues to read as follows:
Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-02,
21301, 21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
0
2. In Sec. 225.19, revise the first sentence of paragraph (c), and
paragraph (e) to read as follows:
[[Page 9222]]
Sec. 225.19 Primary groups of accidents/incidents.
* * * * *
(c) Group II--Rail equipment. Rail equipment accidents/incidents
are collisions, derailments, fires, explosions, acts of God, and other
events involving the operation of on-track equipment (standing or
moving) that result in damages higher than the current reporting
threshold (i.e., $6,700 for calendar years 2002 through 2005, $7,700
for calendar year 2006, $8,200 for calendar year 2007, $8,500 for
calendar year 2008, $8,900 for calendar year 2009, $9,200 for calendar
year 2010, $9,400 for calendar year 2011, $9,500 for calendar year
2012, $9,900 for calendar year 2013, $10,500 for calendar year 2014,
$10,500 for calendar year 2015, $10,500 for calendar year 2016, and
$10,700 for calendar years 2017 and beyond, until revised) to railroad
on-track equipment, signals, tracks, track structures, or roadbed,
including labor costs and the costs for acquiring new equipment and
material.
* * * * *
(e) The reporting threshold is $6,700 for calendar years 2002
through 2005, $7,700 for calendar year 2006, $8,200 for calendar year
2007, $8,500 for calendar year 2008, $8,900 for calendar year 2009,
$9,200 for calendar year 2010, $9,400 for calendar year 2011, $9,500
for calendar year 2012, $9,900 for calendar year 2013, $10,500 for
calendar year 2014, $10,500 for calendar year 2015, $10,500 for
calendar year 2016, and $10,700 for calendar years 2017 and beyond,
until revised. The procedure for determining the reporting threshold
for calendar years 2006 and beyond appears as paragraphs 1-8 of
appendix B to part 225.
* * * * *
Juan D. Reyes, III,
Chief Counsel.
[FR Doc. 2018-04349 Filed 3-2-18; 8:45 am]
BILLING CODE 4910-06-P
