Revision of Method for Calculating Monetary Threshold for Reporting Rail Equipment Accidents/Incidents, 79130-79135 [2020-25863]
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Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Rules and Regulations
institute a second comment period on
the subsequent final rule.
List of Subjects in 40 CFR Part 52
Environmental protection,
Administrative practice and procedure,
Air pollution control, Designations and
classifications, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Andrew Wheeler,
Administrator.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Accordingly, the rule amending 40
CFR 52.282, 52.350, 52.1683, and
52.2585 published in the Federal
Register on October 9, 2020 (85 FR
64046) is withdrawn effective December
9, 2020.
■
[FR Doc. 2020–26960 Filed 12–8–20; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[Docket No. FRA–2014–0099, Notice No. 2]
RIN 2130–AC49
Revision of Method for Calculating
Monetary Threshold for Reporting Rail
Equipment Accidents/Incidents
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
FRA’s accident/incident
reporting regulation requires railroads to
report to FRA all rail equipment
accidents/incidents above the monetary
reporting threshold (reporting
threshold) applicable to that calendar
year. In this final rule, FRA amends this
regulation to modify the way it
calculates periodic adjustments to the
reporting threshold and the way it
communicates each calendar year’s
threshold to railroads. This final rule
will improve the accuracy of accident/
incident data gathered from the
railroads.
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SUMMARY:
This final rule is effective
January 8, 2021.
ADDRESSES: Docket: For access to the
docket to read background documents
or comments received, go to https://
www.regulations.gov at any time or visit
DATES:
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U.S. Department of Transportation,
Docket Operations, West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE, Washington, DC
20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT:
Prabhdeep S. Chawla, Industry
Economist, U.S. Department of
Transportation, Federal Railroad
Administration, Office of Safety
Analysis, RRS–21, W33–321, 1200 New
Jersey Ave. SE, Washington, DC 20590
(telephone 202–493–6298); or Senya
Waas, Attorney Adviser, U.S.
Department of Transportation, Federal
Railroad Administration, Office of Chief
Counsel, RCC–10, W31–223, 1200 New
Jersey Ave. SE, Washington, DC 20590
(telephone 202–493–0665).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary
Information
I. Executive Summary
II. Background
III. Discussion of Specific Comments and
Conclusions
IV. Regulatory Review and Notices
A. Executive Orders 12866, 13771, and
DOT Regulatory Policies and Procedures
B. Regulatory Flexibility Act and Executive
Order 13272: Certification of No
Significant Economic Impact on a
Substantial Number of Small Entities
C. Other Specialized Analyses (Paperwork
Reduction Act, Federalism,
Environmental Impact, Unfunded
Mandates Reform Act of 1995, Energy
Impact)
D. Privacy Act
E. Regulation Identifier Number (RIN)
I. Executive Summary
On May 17, 2019, FRA published a
notice of proposed rulemaking (NPRM)
proposing two technical revisions to the
formula for calculating its accident/
incident reporting threshold and an
administrative change to the way FRA
communicates the reporting threshold
applicable to the upcoming year. See 84
FR 22410. This final rule substantially
adopts all of the proposals in the NPRM.
First, FRA revises the percentage term
used to determine a change in
equipment costs, so it is consistent with
the percentage term used to determine
a change in labor costs. Second, to
reflect overall economic data trends
better, this final rule revises the formula
to use full-year data instead of only
second-quarter data to calculate the
reporting threshold. Third, FRA is
revising 49 CFR 225.19(e) to indicate
that it will publish an annual notice on
its website stating the reporting
threshold for the upcoming calendar
year (CY). FRA will publish this annual
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notice on its website no later than
November 30th of each year, providing
at least one month advance notice to
stakeholders of the new threshold before
it becomes effective. Issuing a notice
each year, as opposed to a final rule,
will simplify and expedite the
communication of the reporting
threshold, and will be more practical
and efficient than FRA annually
publishing a final rule incorporating the
reporting threshold amount in the rule
text in 49 CFR 225.19(c) and (e).
In the NPRM, FRA proposed no
revisions to 49 CFR 225.19(c) regarding
rail equipment accidents. However,
because that section currently lists the
reporting threshold for each calendar
year since 2002, FRA is revising that
section to remove those specific
references consistent with the revisions
to § 225.19(e) discussed above.
Specifically, FRA will no longer publish
each year’s reporting threshold in the
rule text of part 225. Instead, each year,
FRA will issue a notice announcing the
reporting threshold for the upcoming
year.
FRA analyzed the economic impacts
of this final rule against a ‘‘no action’’
baseline reflecting what would happen
in the absence of this final rule. That is,
what would happen if the reporting
threshold continued to be calculated
according to the current, technicallyflawed formula. FRA estimated that,
going forward, the technical revisions to
the reporting threshold formula adopted
in this final rule will yield slightly
lower reporting thresholds than the
existing formula would produce. This
lower threshold will likely result in
railroads being required to report more
rail equipment accidents/incidents
under this final rule. As noted in the
NPRM, FRA estimated this rule would
cause the railroads to report an average
of 140 more rail equipment accidents/
incidents annually over the 10-year
period from 2019 to 2028.1 The present
value of the costs to report these
accidents/incidents to FRA totals
$138,913 using a 7 percent discount
rate, and $170,744 using a 3 percent
discount rate. The annualized costs are
$19,778 using a 7 percent discount rate,
and $20,016 using a 3 percent discount
rate. To place the estimated marginal
increase in reported rail equipment
accidents/incidents in perspective, the
expected increase represents about 7.5
percent of the 1,850 total reported rail
equipment accidents/incidents every
year (an average over the years 2014 to
2018)—and an even smaller percentage
of the approximately 12,000 total
1 This estimate was based on projections using
data from 2006–2018, as described in the NPRM.
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accidents/incidents reported annually
on average (including highway-rail
incidents and other incidents).
FRA also quantified the cost-savings
from not publishing the reporting
threshold in the Federal Register. Over
10 years, the expected present value of
cost savings totals $8,927 discounted at
7 percent, and $10,842 discounted at 3
percent. The corresponding annualized
cost savings are $1,271 using a 7 percent
discount rate, and also $1,271 using a 3
percent discount rate.
Although this final rule may require
railroads to report slightly more
accidents and incidents in any given
year, FRA expects it will result in more
accurate and consistent train accident
data for analyzing railroad safety trends.
The improved data is expected to help
inform future regulatory and other
actions that better address safety risks
and reduce the occurrence of rail
equipment accidents/incidents.
Additionally, users of FRA’s data
(including states, researchers, and other
stakeholders), will benefit from access
to more accurate and consistent data.
Overall, the revisions will benefit a
broad range of analyses.
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II. Background
The NPRM contained a detailed
background discussion of the existing
formula FRA used to calculate the
annual reporting threshold, the
proposed revisions to that formula, and
the agency’s proposal to issue a notice
on its website each year announcing the
reporting threshold for the upcoming
calendar year.
Given that FRA received limited
comments to the NPRM, FRA is not
reproducing the NPRM analysis here.
Please refer to the NPRM for the full
background discussion. 84 FR at 22411–
22417.
III. Discussion of Specific Comments
and Conclusions
In the NPRM, FRA requested
comments on the assumptions and
methodology used in its analysis. In
response, FRA received two comments.
One comment was filed jointly by the
Association of American Railroads and
the American Short Line and Regional
Railroad Association (Railroads), and a
second comment was submitted
anonymously. The comments received
are in the public docket for this
rulemaking at www.regulations.gov.
In their comment, the Railroads
expressed concern over how FRA will
communicate the threshold for the
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upcoming year to railroads and the
public at-large. The Railroads
recommended three changes to the
NPRM. First, they suggested FRA
provide a dedicated website address
where the reporting threshold could be
reliably found. Second, to provide
certainty regarding the effective date of
any changes to the threshold, the
Railroads asked FRA to provide an
annual date for when to expect
publication of the reporting threshold
notice on FRA’s website. Third, the
Railroads suggested FRA should have
and communicate a plan to keep the
reporting threshold on the FRA website
in case of a partial Government
shutdown. The Railroads did not object
to the proposed technical revisions to
the reporting threshold formula.
In consideration of the Railroads’
comments, FRA has established a
dedicated web page for the reporting
threshold on its website. The web page
address is: https://railroads.dot.gov/
forms-guides-publications/guides/
monetary-threshold-notice. In addition,
a link to the reporting threshold will be
featured under ‘‘Related Links’’ on the
FRA Safety Data & Reporting web page
at https://railroads.dot.gov/safety-data,
when it is first published and for some
time thereafter. These websites will help
the public find the reporting threshold
when needed.
In response to the Railroads’ second
concern, FRA is modifying the rule text
to state that it will publish a notice on
its website no later than November 30th
each year announcing the new reporting
threshold that will take effect on
January 1st of the upcoming calendar
year. This change will provide the
Railroads and other stakeholders
advance notification about when the
reporting threshold will be published.
While partial Government shutdowns
noted by the Railroads occur, they are
infrequent events. From 1990 to 2019,
there have been 7 Government
shutdowns totaling 83 days, accounting
for less than 1 percent of the total
number of days over those 30 years.2
Moreover, FRA’s web pages continue to
operate during a Government shutdown.
Routine operations, including hosting
the reporting threshold, continue under
2 Jennifer Earl, ‘‘A Look Back at Every
Government Shutdown in US History,’’ Fox News,
published February 9, 2018, updated January 28,
2019, accessed December 17, 2019, https://
www.foxnews.com/politics/a-look-back-at-everygovernment-shutdown-in-us-history.
Calculation: 83 days/(30 years * 365 days per
year) = 0.0076, or about 0.8%.
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79131
a Government shutdown. However, any
specific service a user might need
would be deferred until after the
shutdown. FRA also suggests that users
who need the reporting threshold
simply print or save a copy the
reporting threshold for their records, as
it will remain the same for the entire
calendar year.
FRA received an anonymous
comment recommending every
accident/incident be investigated
without regard to the reporting
threshold. The commenter stated that
small incidents can indicate systemic
issues leading to catastrophic events.
While FRA does not have the
resources to investigate every accident/
incident, it exercises its jurisdiction in
the course of conducting inspections
and investigations to request
information on accidents/incidents
below the reporting threshold from the
railroads. See 49 CFR 225.25. To
mandate railroads regularly report every
accident/incident to FRA is beyond the
scope of this rulemaking.
Other than the change to the rule text
discussed above, FRA has adopted the
requirements proposed in the NPRM in
this final rule.
IV. Regulatory Review and Notices
A. Executive Orders 12866 and 13771,
and DOT Regulatory Policies and
Procedures
This final rule is a nonsignificant
rulemaking and evaluated in accordance
with existing policies and procedures
under Executive Order 12866 and DOT’s
Administrative Rulemaking, Guidance,
and Enforcement Procedures in 49 CFR
part 5. This rulemaking is not a
regulatory action under Executive Order
13771, ‘‘Reducing Regulation and
Controlling Regulatory Costs,’’ because
it is not significant under Executive
Order 12866. See 82 FR 9339, Jan. 30,
2017.
FRA is revising its formula for
determining the reporting threshold.
The changes are summarized in the
‘‘Executive Summary’’ section above,
and discussed in detail in the NPRM.
The changes are intended to improve
the accuracy of the reporting threshold,
and the resulting rail equipment
accident/incident data gathered from
the railroads over time. The improved
data is expected to help formulate
regulations and other actions that better
address safety risks. Table 1 below
summarizes these costs and benefits.
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Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Rules and Regulations
TABLE 1—SUMMARY OF COSTS AND BENEFITS
[Over a 10-year period of analysis]
Costs
Undiscounted, Nominal .......................................
Present Value (PV) at 3% ...................................
Present Value (PV) at 7% ...................................
Annualized at 3% ................................................
Annualized at 7% ................................................
Cost savings *
$202,032
170,744
138,913
20,016
19,778
$12,710
10,842
8,927
1,271
1,271
Benefits
Qualitative:
Qualitative:
Qualitative:
Qualitative:
Qualitative:
More
More
More
More
More
Accurate
Accurate
Accurate
Accurate
Accurate
Data.
Data.
Data.
Data.
Data.
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* FRA will realize cost savings from issuing the reporting threshold on its website due to a reduction in printing costs.
To estimate these costs, FRA’s
analysis in the NPRM indicated the
changes in the reporting threshold
formula would produce a slightly lower
threshold in future years as compared to
the existing formula.3 FRA’s analysis
also showed, for rail equipment
accidents/incidents near the reporting
threshold, railroads reported an average
of 8 rail equipment accidents/incidents
for every $100 increase in the reporting
threshold. FRA forecasts both the
baseline and slightly lower revised (i.e.,
final rule) thresholds from 2019 to 2028,
and calculated the monetary differences
between them. Next, FRA applied the
rate of 8 accidents/incidents per $100
increase to the monetary differences
between the reporting thresholds to
estimate the marginal increase in
reported accidents/incidents. Finally,
FRA multiplied the $144 cost to submit
an accident/incident report to FRA on
Form F 6180.54 to the marginal increase
in reported accidents/incidents, to
calculate the costs presented in the table
above.
This final rule modifies the NPRM
rule text by stating FRA will publish the
upcoming reporting threshold on its
website before it becomes effective, per
comments received from the Railroads.
No additional costs are expected from
this change. This change will provide
advance notification of the new
reporting threshold to the railroads and
public.
NPRM, FRA is standardizing the way
the percent change in equipment costs
is calculated. Equipment cost changes
will be calculated consistently with the
way that labor costs are calculated. FRA
is also incorporating 12 months of data
in the reporting threshold calculation.
In addition, FRA is notifying railroads
of the new reporting threshold for the
upcoming year by publishing an annual
notice on FRA’s website.
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601–612, and Executive
Order 13272, Proper Consideration of
Small Entities in Agency Rulemaking,
67 FR 53461 (Aug. 16, 2002), require
agency review of proposed and final
rules to assess their impact on small
entities unless the Secretary certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. FRA prepared
an Initial Regulatory Flexibility
Analysis (IRFA) at the time the
proposed reporting threshold rule was
published in the Federal Register. The
analysis below supports that the final
rule will not have a significant
economic effect on a substantial number
of small entities.
FRA requested comment on potential
small business impacts of the proposed
rule. No commenters objected to the
technical revisions to the reporting
threshold formula, or to the potential
costs of the proposed changes on small
entities.
B. Regulatory Flexibility Determination
and Executive Order 13272:
Certification of No Significant Economic
Impact on a Substantial Number of
Small Entities
Description of Regulated Entities
Under section 312 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104–
121, FRA has issued a final policy
statement that formally establishes
‘‘small entities’’ are railroads that meet
the line-haulage revenue requirements
of a Class III railroad, which is $20
million or less in inflation-adjusted
annual revenues, and commuter
railroads or small governmental
jurisdictions that serve populations of
50,000 or less. See 49 CFR part 209, app.
C. For other entities, the same dollar
limit in revenues governs whether a
railroad, contractor, or other respondent
is a small entity. Id.
Need for the Final Rule
This section examines the impact of
the final rule on small entities. FRA is
changing the way the reporting
threshold is calculated because FRA
found the existing formula was
overestimating the change in equipment
costs. As explained in detail in the
3 For the years 2006 to 2018, the revised threshold
formula in this final rule produces a reporting
threshold about six percent lower on average than
the no-action baseline reporting threshold formula.
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All railroads currently governed by 49
CFR part 225 railroad accident/incident
reporting requirements will be subject to
this final rule. Of those, FRA considers
about 735 of the approximately 784
railroads in the United States to be
small entities. The final rule will result
in a slightly lower future reporting
threshold. Small entities affected by this
rulemaking will be those that report
accidents/incidents with associated
monetary damages near the reporting
threshold amount. Small railroads that
report rail equipment accidents/
incidents with monetary damages that
are much above (or below) the reporting
threshold will continue to report (or not
report) these to FRA. FRA’s analysis in
the IRFA showed a range of 8 to 18
small railroads reported accidents/
incidents near the reporting threshold
annually over the period from 2014 to
2018, or an average of 12 small railroads
that would be affected. On average,
these railroads represent about 1.7
percent of the 735 small railroads. Given
the low proportion of small railroads
impacted, this final rule is not expected
to impact a substantial number of small
entities.
Description of Compliance
Requirements
In the NPRM, to determine the
potential compliance costs for small
entities, FRA conducted an analysis
similar to the economic analysis for all
railroads. The steps and calculations in
the analysis are summarized here. First,
FRA calculated the rate of additional
rail equipment accidents/incidents that
small entities may have to report for
every $100 change in the reporting
threshold. FRA found an average of one
more rail equipment accident/incident
reported per $100 change. This rate is
based on rail equipment accidents/
incidents reported by the small entities
in the past for the period 2006 to 2018.
FRA lacks information on accidents/
incidents below the current threshold
because railroads do not have to report
these. Therefore, FRA broadly assumed
the pattern of accidents/incidents below
a lower threshold calculated under this
final rule would be similar to those
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above the threshold, a mirror image for
accidents/incidents near the threshold.
To estimate the trend of the
thresholds calculated using the baseline
formula (i.e., the reporting threshold
formula in effect before this final rule),
and the thresholds calculated using the
formula in this final rule, FRA forecast
both thresholds for the years 2019 to
2028. The forecasts allowed FRA to
calculate the monetary differences
between the baseline and final-rule
reporting thresholds in the future, by
year. Next, FRA converted the monetary
differences between the reporting
thresholds to the number of additional
rail equipment accident/incident reports
that small railroads may have to submit
to FRA under the final rule. FRA
estimated these additional accident/
incident reports by applying the rate of
accidents/incidents per $100 change in
the reporting threshold noted above.
Finally, FRA multiplied the railroad’s
cost to submit an accident/incident
report to FRA ($144 per report) by the
79133
number of additional rail equipment
accident/incident reports, to produce
the compliance cost per year for the
small entities. Please see the cost
schedule below. For the 10-year period,
the undiscounted (nominal) costs
amount to $25,488. The present value of
total costs discounted at a 7 percent
discount rate equals $17,526, and when
discounted at a 3 percent rate equals
$21,541.
TABLE 2—ESTIMATED COSTS BASED ON FORECASTED NUMBER OF RAIL EQUIPMENT ACCIDENTS/INCIDENTS: SMALL
ENTITIES
Reporting
threshold
(baseline
formula, prefinal rule)
calculated
Calendar year
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
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Difference
between finalrule and prefinal rule
thresholds
$12,021
12,329
12,637
12,944
13,252
13,559
13,867
14,174
14,482
14,789
$ 10,566
10,807
11,048
11,289
11,530
11,771
12,012
12,254
12,495
12,736
¥$1,456
¥1,522
¥1,589
¥1,655
¥1,721
¥1,788
¥1,854
¥1,921
¥1,987
¥2,053
15
15
16
17
17
18
19
19
20
21
$2,160
2,160
2,304
2,448
2,448
2,592
2,736
2,736
2,880
3,024
........................
........................
........................
........................
25,488
........................
........................
........................
........................
17,526
........................
........................
........................
........................
21,541
........................
........................
........................
........................
2,495
........................
........................
........................
........................
2,525
.....................................................................................
.....................................................................................
.....................................................................................
.....................................................................................
.....................................................................................
.....................................................................................
.....................................................................................
.....................................................................................
.....................................................................................
.....................................................................................
Total Undiscounted Cost 2019–2028 (10 Years),
Nominal .....................................................................
Present Value (PV) of Total Cost Discounted at
7% 2019–2028 ...................................................
Present Value (PV) of Total Cost Discounted at
3% 2019–2028 ...................................................
Total Annualized Cost Using 7% Discount Rate 2019–
2028 ..........................................................................
Total Annualized Cost Using 3% Discount Rate 2019–
2028 ..........................................................................
In terms of the estimated economic
impact of the final rule on small
entities, FRA expects the impact to be
minimal based on the above analysis.
Given the annualized cost is
approximately $2,500, the cost per
railroad for this group of railroads is
about $139 to $313 per year—or on
average about $210 per year per
railroad. (Calculated as $2,500/18
railroads = $139; and $2,500/8 railroads
= $312.50; for a range of about $139 to
$313.) When compared to annual
revenues, the impact is very small. The
industry trade organization representing
small railroads, the American Short
Line and Regional Railroad Association
(ASLRRA), reports the average freight
revenue per Class III railroad is $4.8
million.4 Relative to the average freight
4 See American Short Line and Regional Railroad
Association. (2014). Short Line and Regional
Railroad Facts and Figures. (Pamphlet).
Washington, DC: Author.
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revenue per railroad, FRA estimates the
proposed rule will affect less than 0.1
percent of revenues. (Calculated as $210
compliance cost per year per railroad/
$4,800,000 average freight revenue per
railroad = 0.00004 = 0.004 percent.)
FRA therefore expects the average
compliance costs for a small entity to be
not significant.
Certification
Under the RFA, FRA prepared and
made available for public comment an
IRFA describing the impacts of the
proposed rule on small entities (5 U.S.C
603(a)). FRA received no comments
regarding the impact on small entities.
Additionally, the ASLRRA did not
object to the technical revisions or costs
of the proposed rule. As explained
above, FRA finds the average
compliance costs for a small entity to be
not significant. Accordingly, the FRA
Administrator hereby certifies that this
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Number
of extra
accidents/
incidents
reported
(rounded)
Reporting
threshold
(final-rule
formula with
full-year data)
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Estimated
annual cost @
$144 per
accident/
incident
final rule will not have a significant
economic impact on a substantial
number of small entities.
C. Other Specialized Analyses
Paperwork Reduction Act
The burden for Accident/Incident
Reporting and Recordkeeping is
approved in the information collection
for 49 CFR part 225 under OMB No.
2130–0500. OMB re-approval for this
collection of information was granted on
June 6, 2018, and the expiration date is
June 30, 2021.
Federalism
Executive Order 13132, ‘‘Federalism,’’
64 FR 43255 (Aug. 10, 1999), requires
FRA to develop an accountable process
to ensure ‘‘meaningful and timely input
by State and local officials in the
development of regulatory policies that
have federalism implications.’’ ‘‘Policies
that have federalism implications’’ are
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defined in the Executive order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Under E.O.
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, the agency consults with
State and local governments, or the
agency consults with State and local
government officials early in the process
of developing the regulation. Where a
regulation has federalism implications
and preempts State law, the Agency
seeks to consult with State and local
officials in the process of developing the
regulation.
This final rule has been analyzed in
accordance with the principles and
criteria contained in E.O. 13132. FRA
has determined that, if adopted, the
final rule would not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. In addition, FRA
has determined that this final rule will
not impose substantial direct
compliance costs on State and local
governments. Therefore, the
consultation and funding requirements
of E.O. 13132 do not apply.
However, this final rule could have
preemptive effect by operation of law
under certain provisions of the Federal
railroad safety statutes, specifically the
former Federal Railroad Safety Act of
1970 (FRSA), repealed and recodified at
49 U.S.C. 20106, and the former
Accident Reports Act of 1910, repealed
and recodified at 49 U.S.C. 20901. See
Public Law 103–272 (July 5, 1994). The
former FRSA provides that States may
not adopt or continue in effect any law,
regulation, or order related to railroad
safety or security that covers the subject
matter of a regulation prescribed or
order issued by the Secretary of
Transportation (with respect to railroad
safety matters) or the Secretary of
Homeland Security (with respect to
railroad security matters), except when
the State law, regulation, or order
qualifies under the ‘‘local safety or
security hazard’’ exception to section
20106.
In sum, FRA has analyzed this final
rule in accordance with the principles
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15:44 Dec 08, 2020
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and criteria contained in E.O. 13132. As
explained above, FRA has determined
that this final rule has no federalism
implications, other than the possible
preemption of State laws under the
former FRSA. Accordingly, FRA has
determined that preparation of a
federalism summary impact statement
for this final rule is not required.
Environmental Impact
FRA has evaluated this final rule in
accordance with the National
Environmental Policy Act (NEPA), 42
U.S.C. 4321 et seq., other environmental
statutes, related regulatory
requirements, and its ‘‘Procedures for
Considering Environmental Impacts’’
(FRA’s Procedures) (64 FR 28545, May
26, 1999). FRA has determined that this
final rule is categorically excluded from
detailed environmental review pursuant
to section 4(c)(20) of FRA’s NEPA
Procedures, ‘‘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). Categorical
exclusions (CEs) are actions identified
in an agency’s NEPA implementing
procedures that do not normally have a
significant impact on the environment
and therefore do not require either an
environmental assessment (EA) or
environmental impact statement (EIS).
See 40 CFR 1508.4.
In analyzing the applicability of a CE,
the agency must also consider whether
extraordinary circumstances are present
that would warrant a more detailed
environmental review through the
preparation of an EA or EIS. Id. In
accordance with section 4(c) and (e) of
FRA’s Procedures, the Agency has
further concluded that no extraordinary
circumstances exist with respect to this
regulation that might trigger the need for
a more detailed environmental review.
As a result, FRA finds 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, Public
Law 104–4 (Mar. 22, 1995); 2 U.S.C.
1531, each Federal agency shall, unless
otherwise prohibited by law, assess the
effects of Federal regulatory actions on
State, local, and tribal governments, and
the private sector (other than to the
extent that such regulations incorporate
requirements specifically set forth in
law). Section 202 of the Act (2 U.S.C.
1532) further requires that before
promulgating any general notice of
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proposed rulemaking that is likely to
result in the promulgation of any rule
that includes any Federal mandate that
may result in expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$100,000,000 or more (adjusted
annually for inflation) in any one year,
and before promulgating any final rule
for which a general notice of proposed
rulemaking was published, the agency
shall prepare a written statement
detailing the effect on State, local, and
tribal governments and the private
sector. This final rule is not expected to
result in the expenditure, in the
aggregate, of $100,000,000 or more,
adjusted for inflation, in any one year,
and thus preparation of such a
statement is not required.
Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ See 66 FR 28355 (May
22, 2001). Under the Executive Order, 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 notices of inquiry,
advance notices of proposed
rulemaking, and notices of proposed
rulemaking (1) that is a significant
regulatory action under Executive Order
12866 or any successor order, and is
likely to have a significant adverse effect
on the supply, distribution, or use of
energy; or (2) that is designated by the
Administrator of the Office of
Information and Regulatory Affairs as a
‘‘significant energy action.’’ FRA has
evaluated this final rule under
Executive Order 13211. FRA has does
not anticipate that this final rule is
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. Consequently, FRA has
determined that this regulatory action is
not a ‘‘significant energy action’’ within
the meaning of Executive Order 13211.
D. Privacy Act
Under 5 U.S.C. 553(c), DOT solicits
comments from the public to better
inform its rulemaking process. DOT
posts these comments, without edit,
including any personal information the
commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
www.dot.gov/privacy.
E. Regulation Identifier Number (RIN)
A regulation identifier number (RIN)
is assigned to each regulatory action
E:\FR\FM\09DER1.SGM
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Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Rules and Regulations
listed in the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
Agenda in April and October of each
year. The RIN contained in the heading
of this document can be used to crossreference this action with the Unified
Agenda.
List of Subjects in 49 CFR Part 225
Investigations, Penalties, Railroad
safety, Reporting and recordkeeping
requirements.
The Final 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—RAILROAD ACCIDENTS/
INCIDENTS: REPORTS
CLASSIFICATION, AND
INVESTIGATIONS
1. The authority citation for part 225
continues to read as follows:
■
Authority: 49 U.S.C. 103, 322(a), 20103,
20107, 20901–20902, 21301, 21302, 21311;
28 U.S.C. 2461, note; and 49 CFR 1.89.
2. In § 225.19, revise paragraphs (c)
and (e) and remove the parenthetical
authority citation at the end of the
section to read as follows:
■
§ 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 to railroad
on-track equipment, signals, tracks,
track structures, or roadbed, including
labor costs and costs for acquiring new
equipment and material.
*
*
*
*
*
(e) Notice. No later than November 30
of each year, the Administrator will
publish a notice on FRA’s website
announcing the reporting threshold that
will take effect on January 1 of the
following calendar year.
■ 3. Appendix B to part 225 is revised
to read as follows:
jbell on DSKJLSW7X2PROD with RULES
*
components: (a) The average hourly earnings
of certain railroad maintenance employees as
reported to the STB by the Class I railroads
and Amtrak; and (b) an overall rail
equipment cost index determined by the
BLS. The wage component is weighted by
40% and the equipment component by 60%.
2. For the wage component, the average of
the data from Form A—STB Wage Statistics
for Group No. 300 (Maintenance of Way and
Structures) and Group No. 400 (Maintenance
of Equipment and Stores) employees is used.
3. For the equipment component,
LABSTAT Series Report, Producer Price
Index (PPI) Series WPU 144 for Railroad
Equipment is used.
4. In the month of October, second-quarter
and first-quarter wage data for the current
year, and fourth-quarter and third-quarter
wage data for the previous year are obtained
from the STB. For equipment costs, the
corresponding BLS railroad equipment
indices for the same time period as the STB
wage data are obtained.
5. The wage data are reported in terms of
dollars earned per hour, while the equipment
cost data are indexed to a base year of 1982.
6. The procedure for adjusting the
reporting threshold is shown in the formula
below. The wage and equipment components
appear as fractional changes relative to the
prior year. After performing the calculation,
the result is rounded to the nearest $100.
7. The weightings result from using STB
wage data and BLS equipment cost data to
produce a reasonable estimation of the
reporting threshold that was calculated using
the threshold formula in effect immediately
before calendar year 2006, a formula that
assumed damage repair costs, at levels at or
near the threshold, were split approximately
evenly between labor and materials.
8. Formula:
New Threshold = Prior Threshold × [1 +
0.4(Wnew—Wprior)/Wprior +
0.6(Enew¥Eprior)/Eprior]
Where:
Wnew = New average hourly wage rate ($).
Wprior = Prior average hourly wage rate ($).
Enew = New equipment average PPI value.
Eprior = Prior equipment average PPI value.
Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator.
[FR Doc. 2020–25863 Filed 12–8–20; 8:45 am]
BILLING CODE 4910–06–P
Appendix B to Part 225—Procedure for
Determining Reporting Threshold
1. Wage data used in the calculation are
collected from railroads by the Surface
Transportation Board (STB) on Form A—STB
Wage Statistics. Rail equipment data from the
U.S. Department of Labor, Bureau of Labor
Statistics (BLS), LABSTAT Series reports are
used in the calculation. The equation used to
adjust the reporting threshold has two
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79135
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 200113–0013; RTID 0648–
XA688]
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; 2020
Commercial Closure for South Atlantic
Snowy Grouper
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS implements an
accountability measure for the
commercial sector of snowy grouper in
the exclusive economic zone (EEZ) of
the South Atlantic. NMFS projects
commercial landings of snowy grouper
will reach the commercial annual catch
limit (ACL) for the July through
December season by December 12, 2020.
Therefore, NMFS closes the commercial
sector for snowy grouper in the South
Atlantic EEZ on December 12, 2020.
This closure is necessary to protect the
snowy grouper resource.
DATES: This temporary rule is effective
at 12:01 a.m., local time, on December
12, 2020, until 12:01 a.m., local time, on
January 1, 2021.
FOR FURTHER INFORMATION CONTACT:
Mary Vara, NMFS Southeast Regional
Office, telephone: 727–824–5305, email:
mary.vara@noaa.gov.
SUPPLEMENTARY INFORMATION: The
snapper-grouper fishery of the South
Atlantic includes snowy grouper and is
managed under the Fishery
Management Plan for the SnapperGrouper Fishery of the South Atlantic
Region (FMP). The FMP was prepared
by the South Atlantic Fishery
Management Council and is
implemented by NMFS under the
authority of the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act) by
regulations at 50 CFR part 622.
All weights described in this
temporary rule are in gutted weight.
The commercial ACL (commercial
quota) for snowy grouper in the South
Atlantic is divided into two 6-month
fishing seasons. The total commercial
ACL for snowy grouper is allocated 70
percent, or 107,754 lb (48,876 kg), for
the January through June commercial
fishing season, and 30 percent, or
46,181 lb (20,947 kg), for the July
through December fishing season, as
SUMMARY:
E:\FR\FM\09DER1.SGM
09DER1
]]>Agencies
[Federal Register Volume 85, Number 237 (Wednesday, December 9, 2020)]
[Rules and Regulations]
[Pages 79130-79135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25863]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[Docket No. FRA-2014-0099, Notice No. 2]
RIN 2130-AC49
Revision of Method for Calculating Monetary Threshold for
Reporting Rail Equipment Accidents/Incidents
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FRA's accident/incident reporting regulation requires
railroads to report to FRA all rail equipment accidents/incidents above
the monetary reporting threshold (reporting threshold) applicable to
that calendar year. In this final rule, FRA amends this regulation to
modify the way it calculates periodic adjustments to the reporting
threshold and the way it communicates each calendar year's threshold to
railroads. This final rule will improve the accuracy of accident/
incident data gathered from the railroads.
DATES: This final rule is effective January 8, 2021.
ADDRESSES: Docket: For access to the docket to read background
documents or comments received, go to https://www.regulations.gov at any
time or visit U.S. Department of Transportation, Docket Operations,
West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Prabhdeep S. Chawla, Industry
Economist, U.S. Department of Transportation, Federal Railroad
Administration, Office of Safety Analysis, RRS-21, W33-321, 1200 New
Jersey Ave. SE, Washington, DC 20590 (telephone 202-493-6298); or Senya
Waas, Attorney Adviser, U.S. Department of Transportation, Federal
Railroad Administration, Office of Chief Counsel, RCC-10, W31-223, 1200
New Jersey Ave. SE, Washington, DC 20590 (telephone 202-493-0665).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Background
III. Discussion of Specific Comments and Conclusions
IV. Regulatory Review and Notices
A. Executive Orders 12866, 13771, and DOT Regulatory Policies
and Procedures
B. Regulatory Flexibility Act and Executive Order 13272:
Certification of No Significant Economic Impact on a Substantial
Number of Small Entities
C. Other Specialized Analyses (Paperwork Reduction Act,
Federalism, Environmental Impact, Unfunded Mandates Reform Act of
1995, Energy Impact)
D. Privacy Act
E. Regulation Identifier Number (RIN)
I. Executive Summary
On May 17, 2019, FRA published a notice of proposed rulemaking
(NPRM) proposing two technical revisions to the formula for calculating
its accident/incident reporting threshold and an administrative change
to the way FRA communicates the reporting threshold applicable to the
upcoming year. See 84 FR 22410. This final rule substantially adopts
all of the proposals in the NPRM. First, FRA revises the percentage
term used to determine a change in equipment costs, so it is consistent
with the percentage term used to determine a change in labor costs.
Second, to reflect overall economic data trends better, this final rule
revises the formula to use full-year data instead of only second-
quarter data to calculate the reporting threshold. Third, FRA is
revising 49 CFR 225.19(e) to indicate that it will publish an annual
notice on its website stating the reporting threshold for the upcoming
calendar year (CY). FRA will publish this annual notice on its website
no later than November 30th of each year, providing at least one month
advance notice to stakeholders of the new threshold before it becomes
effective. Issuing a notice each year, as opposed to a final rule, will
simplify and expedite the communication of the reporting threshold, and
will be more practical and efficient than FRA annually publishing a
final rule incorporating the reporting threshold amount in the rule
text in 49 CFR 225.19(c) and (e).
In the NPRM, FRA proposed no revisions to 49 CFR 225.19(c)
regarding rail equipment accidents. However, because that section
currently lists the reporting threshold for each calendar year since
2002, FRA is revising that section to remove those specific references
consistent with the revisions to Sec. 225.19(e) discussed above.
Specifically, FRA will no longer publish each year's reporting
threshold in the rule text of part 225. Instead, each year, FRA will
issue a notice announcing the reporting threshold for the upcoming
year.
FRA analyzed the economic impacts of this final rule against a ``no
action'' baseline reflecting what would happen in the absence of this
final rule. That is, what would happen if the reporting threshold
continued to be calculated according to the current, technically-flawed
formula. FRA estimated that, going forward, the technical revisions to
the reporting threshold formula adopted in this final rule will yield
slightly lower reporting thresholds than the existing formula would
produce. This lower threshold will likely result in railroads being
required to report more rail equipment accidents/incidents under this
final rule. As noted in the NPRM, FRA estimated this rule would cause
the railroads to report an average of 140 more rail equipment
accidents/incidents annually over the 10-year period from 2019 to
2028.\1\ The present value of the costs to report these accidents/
incidents to FRA totals $138,913 using a 7 percent discount rate, and
$170,744 using a 3 percent discount rate. The annualized costs are
$19,778 using a 7 percent discount rate, and $20,016 using a 3 percent
discount rate. To place the estimated marginal increase in reported
rail equipment accidents/incidents in perspective, the expected
increase represents about 7.5 percent of the 1,850 total reported rail
equipment accidents/incidents every year (an average over the years
2014 to 2018)--and an even smaller percentage of the approximately
12,000 total
[[Page 79131]]
accidents/incidents reported annually on average (including highway-
rail incidents and other incidents).
---------------------------------------------------------------------------
\1\ This estimate was based on projections using data from 2006-
2018, as described in the NPRM.
---------------------------------------------------------------------------
FRA also quantified the cost-savings from not publishing the
reporting threshold in the Federal Register. Over 10 years, the
expected present value of cost savings totals $8,927 discounted at 7
percent, and $10,842 discounted at 3 percent. The corresponding
annualized cost savings are $1,271 using a 7 percent discount rate, and
also $1,271 using a 3 percent discount rate.
Although this final rule may require railroads to report slightly
more accidents and incidents in any given year, FRA expects it will
result in more accurate and consistent train accident data for
analyzing railroad safety trends. The improved data is expected to help
inform future regulatory and other actions that better address safety
risks and reduce the occurrence of rail equipment accidents/incidents.
Additionally, users of FRA's data (including states, researchers, and
other stakeholders), will benefit from access to more accurate and
consistent data. Overall, the revisions will benefit a broad range of
analyses.
II. Background
The NPRM contained a detailed background discussion of the existing
formula FRA used to calculate the annual reporting threshold, the
proposed revisions to that formula, and the agency's proposal to issue
a notice on its website each year announcing the reporting threshold
for the upcoming calendar year.
Given that FRA received limited comments to the NPRM, FRA is not
reproducing the NPRM analysis here. Please refer to the NPRM for the
full background discussion. 84 FR at 22411-22417.
III. Discussion of Specific Comments and Conclusions
In the NPRM, FRA requested comments on the assumptions and
methodology used in its analysis. In response, FRA received two
comments. One comment was filed jointly by the Association of American
Railroads and the American Short Line and Regional Railroad Association
(Railroads), and a second comment was submitted anonymously. The
comments received are in the public docket for this rulemaking at
www.regulations.gov.
In their comment, the Railroads expressed concern over how FRA will
communicate the threshold for the upcoming year to railroads and the
public at-large. The Railroads recommended three changes to the NPRM.
First, they suggested FRA provide a dedicated website address where the
reporting threshold could be reliably found. Second, to provide
certainty regarding the effective date of any changes to the threshold,
the Railroads asked FRA to provide an annual date for when to expect
publication of the reporting threshold notice on FRA's website. Third,
the Railroads suggested FRA should have and communicate a plan to keep
the reporting threshold on the FRA website in case of a partial
Government shutdown. The Railroads did not object to the proposed
technical revisions to the reporting threshold formula.
In consideration of the Railroads' comments, FRA has established a
dedicated web page for the reporting threshold on its website. The web
page address is: https://railroads.dot.gov/forms-guides-publications/guides/monetary-threshold-notice. In addition, a link to the reporting
threshold will be featured under ``Related Links'' on the FRA Safety
Data & Reporting web page at https://railroads.dot.gov/safety-data,
when it is first published and for some time thereafter. These websites
will help the public find the reporting threshold when needed.
In response to the Railroads' second concern, FRA is modifying the
rule text to state that it will publish a notice on its website no
later than November 30th each year announcing the new reporting
threshold that will take effect on January 1st of the upcoming calendar
year. This change will provide the Railroads and other stakeholders
advance notification about when the reporting threshold will be
published.
While partial Government shutdowns noted by the Railroads occur,
they are infrequent events. From 1990 to 2019, there have been 7
Government shutdowns totaling 83 days, accounting for less than 1
percent of the total number of days over those 30 years.\2\ Moreover,
FRA's web pages continue to operate during a Government shutdown.
Routine operations, including hosting the reporting threshold, continue
under a Government shutdown. However, any specific service a user might
need would be deferred until after the shutdown. FRA also suggests that
users who need the reporting threshold simply print or save a copy the
reporting threshold for their records, as it will remain the same for
the entire calendar year.
---------------------------------------------------------------------------
\2\ Jennifer Earl, ``A Look Back at Every Government Shutdown in
US History,'' Fox News, published February 9, 2018, updated January
28, 2019, accessed December 17, 2019, https://www.foxnews.com/politics/a-look-back-at-every-government-shutdown-in-us-history.
Calculation: 83 days/(30 years * 365 days per year) = 0.0076, or
about 0.8%.
---------------------------------------------------------------------------
FRA received an anonymous comment recommending every accident/
incident be investigated without regard to the reporting threshold. The
commenter stated that small incidents can indicate systemic issues
leading to catastrophic events.
While FRA does not have the resources to investigate every
accident/incident, it exercises its jurisdiction in the course of
conducting inspections and investigations to request information on
accidents/incidents below the reporting threshold from the railroads.
See 49 CFR 225.25. To mandate railroads regularly report every
accident/incident to FRA is beyond the scope of this rulemaking.
Other than the change to the rule text discussed above, FRA has
adopted the requirements proposed in the NPRM in this final rule.
IV. Regulatory Review and Notices
A. Executive Orders 12866 and 13771, and DOT Regulatory Policies and
Procedures
This final rule is a nonsignificant rulemaking and evaluated in
accordance with existing policies and procedures under Executive Order
12866 and DOT's Administrative Rulemaking, Guidance, and Enforcement
Procedures in 49 CFR part 5. This rulemaking is not a regulatory action
under Executive Order 13771, ``Reducing Regulation and Controlling
Regulatory Costs,'' because it is not significant under Executive Order
12866. See 82 FR 9339, Jan. 30, 2017.
FRA is revising its formula for determining the reporting
threshold. The changes are summarized in the ``Executive Summary''
section above, and discussed in detail in the NPRM. The changes are
intended to improve the accuracy of the reporting threshold, and the
resulting rail equipment accident/incident data gathered from the
railroads over time. The improved data is expected to help formulate
regulations and other actions that better address safety risks. Table 1
below summarizes these costs and benefits.
[[Page 79132]]
Table 1--Summary of Costs and Benefits
[Over a 10-year period of analysis]
----------------------------------------------------------------------------------------------------------------
Costs Cost savings * Benefits
----------------------------------------------------------------------------------------------------------------
Undiscounted, Nominal.................... $202,032 $12,710 Qualitative: More Accurate Data.
Present Value (PV) at 3%................. 170,744 10,842 Qualitative: More Accurate Data.
Present Value (PV) at 7%................. 138,913 8,927 Qualitative: More Accurate Data.
Annualized at 3%......................... 20,016 1,271 Qualitative: More Accurate Data.
Annualized at 7%......................... 19,778 1,271 Qualitative: More Accurate Data.
----------------------------------------------------------------------------------------------------------------
* FRA will realize cost savings from issuing the reporting threshold on its website due to a reduction in
printing costs.
To estimate these costs, FRA's analysis in the NPRM indicated the
changes in the reporting threshold formula would produce a slightly
lower threshold in future years as compared to the existing formula.\3\
FRA's analysis also showed, for rail equipment accidents/incidents near
the reporting threshold, railroads reported an average of 8 rail
equipment accidents/incidents for every $100 increase in the reporting
threshold. FRA forecasts both the baseline and slightly lower revised
(i.e., final rule) thresholds from 2019 to 2028, and calculated the
monetary differences between them. Next, FRA applied the rate of 8
accidents/incidents per $100 increase to the monetary differences
between the reporting thresholds to estimate the marginal increase in
reported accidents/incidents. Finally, FRA multiplied the $144 cost to
submit an accident/incident report to FRA on Form F 6180.54 to the
marginal increase in reported accidents/incidents, to calculate the
costs presented in the table above.
---------------------------------------------------------------------------
\3\ For the years 2006 to 2018, the revised threshold formula in
this final rule produces a reporting threshold about six percent
lower on average than the no-action baseline reporting threshold
formula.
---------------------------------------------------------------------------
This final rule modifies the NPRM rule text by stating FRA will
publish the upcoming reporting threshold on its website before it
becomes effective, per comments received from the Railroads. No
additional costs are expected from this change. This change will
provide advance notification of the new reporting threshold to the
railroads and public.
B. Regulatory Flexibility Determination and Executive Order 13272:
Certification of No Significant Economic Impact on a Substantial Number
of Small Entities
Need for the Final Rule
This section examines the impact of the final rule on small
entities. FRA is changing the way the reporting threshold is calculated
because FRA found the existing formula was overestimating the change in
equipment costs. As explained in detail in the NPRM, FRA is
standardizing the way the percent change in equipment costs is
calculated. Equipment cost changes will be calculated consistently with
the way that labor costs are calculated. FRA is also incorporating 12
months of data in the reporting threshold calculation. In addition, FRA
is notifying railroads of the new reporting threshold for the upcoming
year by publishing an annual notice on FRA's website.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, and
Executive Order 13272, Proper Consideration of Small Entities in Agency
Rulemaking, 67 FR 53461 (Aug. 16, 2002), require agency review of
proposed and final rules to assess their impact on small entities
unless the Secretary certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
FRA prepared an Initial Regulatory Flexibility Analysis (IRFA) at the
time the proposed reporting threshold rule was published in the Federal
Register. The analysis below supports that the final rule will not have
a significant economic effect on a substantial number of small
entities.
FRA requested comment on potential small business impacts of the
proposed rule. No commenters objected to the technical revisions to the
reporting threshold formula, or to the potential costs of the proposed
changes on small entities.
Description of Regulated Entities
Under section 312 of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, FRA has issued a final policy
statement that formally establishes ``small entities'' are railroads
that meet the line-haulage revenue requirements of a Class III
railroad, which is $20 million or less in inflation-adjusted annual
revenues, and commuter railroads or small governmental jurisdictions
that serve populations of 50,000 or less. See 49 CFR part 209, app. C.
For other entities, the same dollar limit in revenues governs whether a
railroad, contractor, or other respondent is a small entity. Id.
All railroads currently governed by 49 CFR part 225 railroad
accident/incident reporting requirements will be subject to this final
rule. Of those, FRA considers about 735 of the approximately 784
railroads in the United States to be small entities. The final rule
will result in a slightly lower future reporting threshold. Small
entities affected by this rulemaking will be those that report
accidents/incidents with associated monetary damages near the reporting
threshold amount. Small railroads that report rail equipment accidents/
incidents with monetary damages that are much above (or below) the
reporting threshold will continue to report (or not report) these to
FRA. FRA's analysis in the IRFA showed a range of 8 to 18 small
railroads reported accidents/incidents near the reporting threshold
annually over the period from 2014 to 2018, or an average of 12 small
railroads that would be affected. On average, these railroads represent
about 1.7 percent of the 735 small railroads. Given the low proportion
of small railroads impacted, this final rule is not expected to impact
a substantial number of small entities.
Description of Compliance Requirements
In the NPRM, to determine the potential compliance costs for small
entities, FRA conducted an analysis similar to the economic analysis
for all railroads. The steps and calculations in the analysis are
summarized here. First, FRA calculated the rate of additional rail
equipment accidents/incidents that small entities may have to report
for every $100 change in the reporting threshold. FRA found an average
of one more rail equipment accident/incident reported per $100 change.
This rate is based on rail equipment accidents/incidents reported by
the small entities in the past for the period 2006 to 2018. FRA lacks
information on accidents/incidents below the current threshold because
railroads do not have to report these. Therefore, FRA broadly assumed
the pattern of accidents/incidents below a lower threshold calculated
under this final rule would be similar to those
[[Page 79133]]
above the threshold, a mirror image for accidents/incidents near the
threshold.
To estimate the trend of the thresholds calculated using the
baseline formula (i.e., the reporting threshold formula in effect
before this final rule), and the thresholds calculated using the
formula in this final rule, FRA forecast both thresholds for the years
2019 to 2028. The forecasts allowed FRA to calculate the monetary
differences between the baseline and final-rule reporting thresholds in
the future, by year. Next, FRA converted the monetary differences
between the reporting thresholds to the number of additional rail
equipment accident/incident reports that small railroads may have to
submit to FRA under the final rule. FRA estimated these additional
accident/incident reports by applying the rate of accidents/incidents
per $100 change in the reporting threshold noted above.
Finally, FRA multiplied the railroad's cost to submit an accident/
incident report to FRA ($144 per report) by the number of additional
rail equipment accident/incident reports, to produce the compliance
cost per year for the small entities. Please see the cost schedule
below. For the 10-year period, the undiscounted (nominal) costs amount
to $25,488. The present value of total costs discounted at a 7 percent
discount rate equals $17,526, and when discounted at a 3 percent rate
equals $21,541.
Table 2--Estimated Costs Based on Forecasted Number of Rail Equipment Accidents/Incidents: Small Entities
----------------------------------------------------------------------------------------------------------------
Reporting Reporting Number of
threshold threshold Difference extra Estimated
(baseline (final-rule between final- accidents/ annual cost @
Calendar year formula, pre- formula with rule and pre- incidents $144 per
final rule) full-year final rule reported accident/
calculated data) thresholds (rounded) incident
----------------------------------------------------------------------------------------------------------------
2019............................ $12,021 $ 10,566 -$1,456 15 $2,160
2020............................ 12,329 10,807 -1,522 15 2,160
2021............................ 12,637 11,048 -1,589 16 2,304
2022............................ 12,944 11,289 -1,655 17 2,448
2023............................ 13,252 11,530 -1,721 17 2,448
2024............................ 13,559 11,771 -1,788 18 2,592
2025............................ 13,867 12,012 -1,854 19 2,736
2026............................ 14,174 12,254 -1,921 19 2,736
2027............................ 14,482 12,495 -1,987 20 2,880
2028............................ 14,789 12,736 -2,053 21 3,024
-------------------------------------------------------------------------------
Total Undiscounted Cost 2019- .............. .............. .............. .............. 25,488
2028 (10 Years), Nominal...
Present Value (PV) of .............. .............. .............. .............. 17,526
Total Cost Discounted
at 7% 2019-2028........
Present Value (PV) of .............. .............. .............. .............. 21,541
Total Cost Discounted
at 3% 2019-2028........
Total Annualized Cost Using .............. .............. .............. .............. 2,495
7% Discount Rate 2019-2028.
Total Annualized Cost Using .............. .............. .............. .............. 2,525
3% Discount Rate 2019-2028.
----------------------------------------------------------------------------------------------------------------
In terms of the estimated economic impact of the final rule on
small entities, FRA expects the impact to be minimal based on the above
analysis. Given the annualized cost is approximately $2,500, the cost
per railroad for this group of railroads is about $139 to $313 per
year--or on average about $210 per year per railroad. (Calculated as
$2,500/18 railroads = $139; and $2,500/8 railroads = $312.50; for a
range of about $139 to $313.) When compared to annual revenues, the
impact is very small. The industry trade organization representing
small railroads, the American Short Line and Regional Railroad
Association (ASLRRA), reports the average freight revenue per Class III
railroad is $4.8 million.\4\ Relative to the average freight revenue
per railroad, FRA estimates the proposed rule will affect less than 0.1
percent of revenues. (Calculated as $210 compliance cost per year per
railroad/$4,800,000 average freight revenue per railroad = 0.00004 =
0.004 percent.) FRA therefore expects the average compliance costs for
a small entity to be not significant.
---------------------------------------------------------------------------
\4\ See American Short Line and Regional Railroad Association.
(2014). Short Line and Regional Railroad Facts and Figures.
(Pamphlet). Washington, DC: Author.
---------------------------------------------------------------------------
Certification
Under the RFA, FRA prepared and made available for public comment
an IRFA describing the impacts of the proposed rule on small entities
(5 U.S.C 603(a)). FRA received no comments regarding the impact on
small entities. Additionally, the ASLRRA did not object to the
technical revisions or costs of the proposed rule. As explained above,
FRA finds the average compliance costs for a small entity to be not
significant. Accordingly, the FRA Administrator hereby certifies that
this final rule will not have a significant economic impact on a
substantial number of small entities.
C. Other Specialized Analyses
Paperwork Reduction Act
The burden for Accident/Incident Reporting and Recordkeeping is
approved in the information collection for 49 CFR part 225 under OMB
No. 2130-0500. OMB re-approval for this collection of information was
granted on June 6, 2018, and the expiration date is June 30, 2021.
Federalism
Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are
[[Page 79134]]
defined in the Executive order to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' Under
E.O. 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, the agency consults with State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
Agency seeks to consult with State and local officials in the process
of developing the regulation.
This final rule has been analyzed in accordance with the principles
and criteria contained in E.O. 13132. FRA has determined that, if
adopted, the final rule would not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. In addition, FRA has determined that this
final rule will not impose substantial direct compliance costs on State
and local governments. Therefore, the consultation and funding
requirements of E.O. 13132 do not apply.
However, this final rule could have preemptive effect by operation
of law under certain provisions of the Federal railroad safety
statutes, specifically the former Federal Railroad Safety Act of 1970
(FRSA), repealed and recodified at 49 U.S.C. 20106, and the former
Accident Reports Act of 1910, repealed and recodified at 49 U.S.C.
20901. See Public Law 103-272 (July 5, 1994). The former FRSA provides
that States may not adopt or continue in effect any law, regulation, or
order related to railroad safety or security that covers the subject
matter of a regulation prescribed or order issued by the Secretary of
Transportation (with respect to railroad safety matters) or the
Secretary of Homeland Security (with respect to railroad security
matters), except when the State law, regulation, or order qualifies
under the ``local safety or security hazard'' exception to section
20106.
In sum, FRA has analyzed this final rule in accordance with the
principles and criteria contained in E.O. 13132. As explained above,
FRA has determined that this final rule has no federalism implications,
other than the possible preemption of State laws under the former FRSA.
Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this final rule is not required.
Environmental Impact
FRA has evaluated this final rule in accordance with the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., other
environmental statutes, related regulatory requirements, and its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999). FRA has determined that this final rule is
categorically excluded from detailed environmental review pursuant to
section 4(c)(20) of FRA's NEPA Procedures, ``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). Categorical exclusions (CEs) are actions identified in
an agency's NEPA implementing procedures that do not normally have a
significant impact on the environment and therefore do not require
either an environmental assessment (EA) or environmental impact
statement (EIS). See 40 CFR 1508.4.
In analyzing the applicability of a CE, the agency must also
consider whether extraordinary circumstances are present that would
warrant a more detailed environmental review through the preparation of
an EA or EIS. Id. In accordance with section 4(c) and (e) of FRA's
Procedures, the Agency has further concluded that no extraordinary
circumstances exist with respect to this regulation that might trigger
the need for a more detailed environmental review. As a result, FRA
finds 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,
Public Law 104-4 (Mar. 22, 1995); 2 U.S.C. 1531, each Federal agency
shall, unless otherwise prohibited by law, assess the effects of
Federal regulatory actions on State, local, and tribal governments, and
the private sector (other than to the extent that such regulations
incorporate requirements specifically set forth in law). Section 202 of
the Act (2 U.S.C. 1532) further requires that before promulgating any
general notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any one year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement detailing the
effect on State, local, and tribal governments and the private sector.
This final rule is not expected to result in the expenditure, in the
aggregate, of $100,000,000 or more, adjusted for inflation, in any one
year, and thus preparation of such a statement is not required.
Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' See
66 FR 28355 (May 22, 2001). Under the Executive Order, 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
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking (1) that is a significant regulatory action
under Executive Order 12866 or any successor order, and is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (2) that is designated by the Administrator of the Office
of Information and Regulatory Affairs as a ``significant energy
action.'' FRA has evaluated this final rule under Executive Order
13211. FRA has does not anticipate that this final rule is likely to
have a significant adverse effect on the supply, distribution, or use
of energy. Consequently, FRA has determined that this regulatory action
is not a ``significant energy action'' within the meaning of Executive
Order 13211.
D. Privacy Act
Under 5 U.S.C. 553(c), DOT solicits comments from the public to
better inform its rulemaking process. DOT posts these comments, without
edit, including any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.
E. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action
[[Page 79135]]
listed in the Unified Agenda of Federal Regulations. The Regulatory
Information Service Center publishes the Unified Agenda in April and
October of each year. The RIN contained in the heading of this document
can be used to cross-reference this action with the Unified Agenda.
List of Subjects in 49 CFR Part 225
Investigations, Penalties, Railroad safety, Reporting and
recordkeeping requirements.
The Final 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--RAILROAD ACCIDENTS/INCIDENTS: REPORTS CLASSIFICATION, AND
INVESTIGATIONS
0
1. The authority citation for part 225 continues to read as follows:
Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-20902,
21301, 21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
0
2. In Sec. 225.19, revise paragraphs (c) and (e) and remove the
parenthetical authority citation at the end of the section to read as
follows:
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 to railroad on-track equipment, signals, tracks, track
structures, or roadbed, including labor costs and costs for acquiring
new equipment and material.
* * * * *
(e) Notice. No later than November 30 of each year, the
Administrator will publish a notice on FRA's website announcing the
reporting threshold that will take effect on January 1 of the following
calendar year.
0
3. Appendix B to part 225 is revised to read as follows:
Appendix B to Part 225--Procedure for Determining Reporting Threshold
1. Wage data used in the calculation are collected from
railroads by the Surface Transportation Board (STB) on Form A--STB
Wage Statistics. Rail equipment data from the U.S. Department of
Labor, Bureau of Labor Statistics (BLS), LABSTAT Series reports are
used in the calculation. The equation used to adjust the reporting
threshold has two components: (a) The average hourly earnings of
certain railroad maintenance employees as reported to the STB by the
Class I railroads and Amtrak; and (b) an overall rail equipment cost
index determined by the BLS. The wage component is weighted by 40%
and the equipment component by 60%.
2. For the wage component, the average of the data from Form A--
STB Wage Statistics for Group No. 300 (Maintenance of Way and
Structures) and Group No. 400 (Maintenance of Equipment and Stores)
employees is used.
3. For the equipment component, LABSTAT Series Report, Producer
Price Index (PPI) Series WPU 144 for Railroad Equipment is used.
4. In the month of October, second-quarter and first-quarter
wage data for the current year, and fourth-quarter and third-quarter
wage data for the previous year are obtained from the STB. For
equipment costs, the corresponding BLS railroad equipment indices
for the same time period as the STB wage data are obtained.
5. The wage data are reported in terms of dollars earned per
hour, while the equipment cost data are indexed to a base year of
1982.
6. The procedure for adjusting the reporting threshold is shown
in the formula below. The wage and equipment components appear as
fractional changes relative to the prior year. After performing the
calculation, the result is rounded to the nearest $100.
7. The weightings result from using STB wage data and BLS
equipment cost data to produce a reasonable estimation of the
reporting threshold that was calculated using the threshold formula
in effect immediately before calendar year 2006, a formula that
assumed damage repair costs, at levels at or near the threshold,
were split approximately evenly between labor and materials.
8. Formula:
New Threshold = Prior Threshold x [1 + 0.4(Wnew--Wprior)/Wprior +
0.6(Enew-Eprior)/Eprior]
Where:
Wnew = New average hourly wage rate ($).
Wprior = Prior average hourly wage rate ($).
Enew = New equipment average PPI value.
Eprior = Prior equipment average PPI value.
Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator.
[FR Doc. 2020-25863 Filed 12-8-20; 8:45 am]
BILLING CODE 4910-06-P
