[Federal Register: December 30, 2002 (Volume 67, Number 250)]
[Rules and Regulations]
[Page 79533-79536]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de02-7]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[FRA-1998-4898, Notice No. 5]
RIN 2130-AB57
Retention of Current Monetary Threshold for Reporting Rail
Equipment Accident/Incidents During Calendar Year 2003 and Until
Further Amended
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Interim final rule with request for comments.
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SUMMARY: This Interim Final Rule establishes at $6,700 the monetary
threshold for reporting certain railroad accidents/incidents involving
railroad property damage that occur during calendar year 2003 and,
until further notice, during subsequent calendar years. The 2003
threshold remains the same as the threshold for calendar year 2002 due
to the unavailability of Bureau of Labor Statistics wage data that were
previously used to calculate the threshold. FRA is not calculating a
new threshold; rather, the old one is being retained as it is not
possible to calculate a new threshold with the current formula due to
the lack of BLS data. FRA will be providing notice and seeking comment
at a future date to establish a new formula for calculating the
monetary threshold for reporting rail equipment accidents/incidents.
This action is needed to ensure and maintain comparability between
different years of accident data by having the threshold
[[Page 79534]]
keep pace with any increases or decreases in equipment and labor costs
so that each year accidents involving the same minimum amount of
railroad property damage are included in the reportable accident
counts.
DATES: (1) This regulation is effective January 1, 2003.
(2) Written Comments: Written comments must be received by February
28, 2003. Comments received after that date will be considered to the
extent possible without incurring additional expense or delay.
ADDRESSES: Anyone wishing to file a comment should refer to the FRA
docket and notice numbers (Docket No. FRA-1998-4898, Notice No. 5). You
may submit your comments and related material by only one of the
following methods:
By mail to the Docket Management System, United States Department
of Transportation, room PL-401, 400 7th Street, SW., Washington, DC
20590-0001; or electronically through the Web site for the Docket
Management System at http://dams.dot.gov. For instructions on how to
submit comments electronically, visit the Docket Management System Web
site and click on the ``Help'' menu.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments, and documents as indicated in this preamble, will
become part of this docket and will be available for inspection or
copying at room PL-401 on the Plaza Level of the Nassif Building at the
same address during regular business hours. You may also obtain access
to this docket on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Robert L. Finkelstein, Staff Director,
Office of Safety Analysis, RRS-22, Mail Stop 17, FRA, 1120 Vermont
Ave., NW., Washington, DC 20590 (telephone 202-493-6280) or Roberta
Stewart, Trial Attorney, Office of Chief Counsel, RCC-12, Mail Stop 10,
FRA, 1120 Vermont Ave., NW., Washington, DC 20590 (telephone 202-493-
6027).
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 causes reportable
damages greater than the reporting threshold for the year in which the
event occurs. 49 CFR 225.19(c). Each rail equipment accident/incident
must be reported to FRA using the Rail Equipment Accident/Incident
Report (Form FRA F 6180.54). 49 CFR 225.19(b), (c). As revised,
effective in 1997, paragraphs (c) and (e) of 49 CFR 225.19 provide that
the dollar figure that constitutes the reporting threshold for rail
equipment accidents/incidents will be adjusted, every year in
accordance with the procedures outlined in appendix B to part 225, to
reflect any cost increases or decreases. 61 FR 30942, 30969 (June 18,
1996); 61 FR 60632, 60634 (Nov. 29, 1996); 61 FR 67477, 67490 (Dec. 23,
1996). As stated in the procedures in appendix B, information from the
Bureau of Labor Statistics (BLS) is used to calculate the threshold.
``The equation used to adjust the reporting threshold uses the average
hourly earnings reported for Class I railroads and Amtrak and an
overall railroad equipment cost index determined by the BLS.'' 49 CFR
part 225, App. B, paragraph 1. The formula set forth in appendix B is
consistent with 49 U.S.C. 20901(b), which reads as follows:
(b) Monetary threshold for reporting.
(1) In establishing or changing a monetary threshold for the
reporting of a railroad accident or incident, the Secretary shall base
damage cost calculations only on publicly available information
obtained from--
(A) the Bureau of Labor Statistics; or
(B) another department, agency, or instrumentality of the United
States Government if the information has been collected through
objective, statistically sound survey methods or has been previously
subject to a public notice and comment process in a proceeding of a
Government department, agency, or instrumentality.
(2) If information is not available as provided in paragraph (1)(A)
or (B) of this subsection, the Secretary may use any other source to
obtain the information. However, use of the information shall be
subject to public notice and an opportunity for written comment.
New Reporting Threshold
Approximately one year has passed since the rail equipment
accident/incident reporting threshold was last reviewed and revised. 66
FR 66346 (Dec. 26, 2001). However, FRA will not be recalculating the
threshold this year based on the current formula in appendix B. The
threshold from calendar year 2002, $6,700, will remain in place. The
reason for this is that the BLS is no longer publishing the figures
necessary for FRA to compute the wage component of the equation, i.e.,
the average hourly earnings of production workers for Class I railroads
and Amtrak, due to inadequate sampling data. Specifically, the Class I
railroads and Amtrak have not provided the monthly hours and earnings
data for production workers that BLS needs to publish these numbers for
calendar year 2002. BLS does not foresee a better response rate in
future years and, as a result, is completely changing its methodology
and the information that it publishes. Therefore, it is not possible
for FRA to calculate a new threshold based on the current formula. The
calendar year 2002 threshold of $6,700 will be held over for calendar
year 2003 and until further notice so that a threshold remains in
place. Beginning in calendar year 2003, FRA will develop a new method
for calculating the accident reporting threshold in a separate notice-
and-comment rulemaking consistent with 49 U.S.C. 20901(b).
The threshold amount of $6,700 will remain in effect on January 1,
2003. Sections 225.5 and 225.19 and appendix B have been amended to
state that the reporting threshold is $6,700 for calendar year 2003
and, until further notice, for subsequent calendar years.
Notice-and-Comment Procedures
Although FRA is soliciting comments, FRA believes that it is
necessary to issue this Interim Final Rule immediately in order to
ensure that a monetary accident/incident reporting threshold remains in
place while FRA proposes and establishes a new method for calculating
the threshold, based on different data. Because a threshold must be in
place at the beginning of calendar year 2003, extended notice-and-
comment procedures are ``impracticable, unnecessary, or contrary to the
public interest'' within the meaning of section 4(b)(3)(B) of the
Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B). It is currently
impossible for FRA to calculate a new threshold based on the current
formula, and there is not enough time to create, propose and issue a
new methodology for establishing a threshold consistent with 49 U.S.C.
20901(b) before January 1, 2003. As a consequence, FRA is proceeding
directly to an Interim Final Rule.
However, in accordance with Executive Order 12866, FRA is allowing
60 days for comments. FRA believes that a 60-day comment period is
appropriate to allow the public to comment on this Interim Final Rule.
FRA solicits written comments on all aspects of this Interim Final
Rule.
FRA does plan to issue a notice of proposed rulemaking (NPRM)
establishing a new formula for determining the amount of the reporting
threshold.
[[Page 79535]]
Regulatory Impact
Executive Order 12866 and DOT Regulatory Polices and Procedures
This rule has been evaluated in accordance with existing policies
and procedures, and determined to be non-significant under both
Executive Order 12866 and DOT policies and procedures (44 FR 11034;
Feb. 26, 1979). This Interim Final Rule has also been reviewed under
Executive Order 12866 and is also considered ``nonsignificant'' under
that order.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a 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. Pursuant to Section 312 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has published
an interim policy that formally establishes ``small entities'' as being
railroads that meet the line-haulage revenue requirements of a Class
III railroad. 62 FR 43024 (Aug. 11, 1997). For other entities, the same
dollar limit in revenues governs whether a railroad, contractor, or
other respondent is a small entity.
About 645 of the approximately 700 railroads in the United States
are considered small businesses by FRA. FRA certifies that this Interim
Final Rule will have no significant impact on a substantial number of
small entities. To the extent that this rule has an 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 that employs thousands of employees and operates
trains millions of miles is exposed to greater risks than one whose
operation is substantially smaller. 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. For example,
a total number of 426 rail equipment accidents/incidents were reported
as occurring in calendar year 2001. Of that number, only 24 were
reported by small railroads. Hypothetically, if the cost of repairing
rail equipment did slightly increase over the last year, and the
monetary reporting threshold for the new year remained the same, it is
possible that a small number of accidents would become reportable that
would not be reportable if the threshold were increased to account for
the increased costs. Therefore, this rule will be neutral in effect for
railroads who do not experience any rail equipment accidents/incidents.
For railroads that do experience a rail equipment accident/incident, it
is possible that there would be a slight increase in the number of
reportable accidents, and thus as slight increase of the reporting
burden. This burden would not be significant, and would affect the
large railroads more than the small entities.
The American Shortline and Regional Railroad Association (ASLRRA)
represents the interests of most small freight railroads and some
excursion railroads operating in the United States. FRA field offices
and the ASLRRA engage in various outreach activities with small
railroads. For instance, when new regulations are issued that affect
small railroads, FRA briefs the ASLRRA, which in turn disseminates the
information to its members and provides training as appropriate. When a
new railroad is formed, FRA safety representatives visit the operation
and provide information regarding applicable safety regulations. FRA
regularly addresses questions and concerns regarding regulations raised
by railroads. Because this Interim Final Rule is not anticipated to
significantly affect small railroads, FRA is not providing alternative
treatment for small railroads under this rule.
Paperwork Reduction Act
There are no new information collection requirements associated
with this Interim Final Rule. Therefore, no estimate of a public
reporting burden is required.
Federalism Implications
Executive Order 13132, entitled, ``Federalism,'' issued on August
4, 1999, requires that each agency ``in a separately identified portion
of the preamble to the regulation as it is to be issued in the Federal
Register, provided to the Director of the Office of Management and
Budget a federalism summary impact statement, which consists of a
description of the extent of the agency's prior consultation with State
and local officials, a summary of the nature of their concerns and the
agency's position supporting the need to issue the regulation, and a
statement of the extent to which the concerns of the State and local
officials have been met * * *.'' This rulemaking action has been
analyzed in accordance with the principles and criteria contained 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, as specified
in the Executive Order 13132. Accordingly, FRA has determined that this
rule will not have sufficient federalism implications to warrant
consultation with State and local officials or the preparation of a
Federalism Assessment. Accordingly, a Federalism Assessment has not
been prepared.
Environmental Impact
FRA has evaluated this regulation in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this regulation is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
64 FR 28545, 28547, May 26, 1999. Section 4(c)(20) reads as follows:
(c) Actions Categorically Excluded. Certain classes of FRA actions
have been determined to be categorically excluded from the requirements
of these Procedures as they do not individually or cumulatively have a
significant effect on the human environment. * * * The following
classes of FRA actions are categorically excluded: * * *
(20) 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.
In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that the
regulation is not a major Federal action significantly affecting the
quality of the human environment.
Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent
[[Page 79536]]
that such regulations incorporate requirements specifically set forth
in law).'' Section 202 of the Act (2 U.S.C. 1532) further requires that
``before promulgating any general notice of proposed rulemaking that is
likely to result in the promulgation of any rule that includes any
Federal mandate that may result in expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more (adjusted annually for inflation) in any 1 year,
and before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector. The Interim Final Rule would not
result in the expenditure, in the aggregate, of $100,000,000 or more 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.'' 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)(i) That is a significant regulator 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) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this Interim Final Rule in accordance with
Executive Order 13211. FRA has determined that this Interim Final Rule
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Consequently, FRA has determined that
this regulator action is not a ``significant energy action'' within the
meaning of Executive Order 13211.
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, title 49
Code of Federal Regulations as follows:
PART 225--RAILROAD ACCIDENT/INCIDENTS: REPORTS CLASSIFICATION, AND
INVESTIGATIONS
1. The authority citation for part 225 continues to read as
follows;
Authority: 49 U.S.C. 20103, 20107, 20901, 20902, 21302, 21311;
49 U.S.C. 103; 49 CFR 1.49.
2. By amending Sec. 225.19 by adding a heading for paragraph (c),
revising the first and last sentences of paragraph (c) and revising
paragraph (e) 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 (i.e., $6,300 for calendar years 1991 through 1966, $6,500
for calendar year 1997, and $6,700 for calendar years 2002 and 2003
and, until further notice, for calendar years thereafter) to railroad
on-track equipment, signals, tracks, track structures, or roadbed,
including labor costs and the costs for acquiring new equipment and
material.* * * The reporting threshold will be reviewed periodically,
and, if necessary, will be adjusted every year.
* * * * *
(e) The reporting threshold is $6,300 for calendar years 1991
through 1996. The reporting threshold is $6,500 for calendar year 1997,
$6,600 for calendar years 1998 through 2001, and $6,700 for calendar
years 2002 and 2003 and, until further notice, for calendar years
thereafter. The procedure for determining the reporting threshold for
calendar years 1997 through 2002 appears as paragraphs 1-9 of appendix
B to part 225. The primary rationale for the reporting threshold
established for calendar year 2003 and, until further notice, for
subsequent calendar years, appears as paragraph 10 of appendix B to
part 225.
3. Part 225 is amended by revising paragraph 9 of appendix B and
adding new paragraph 10 to appendix B to read as follows:
Appendix B to Part 225--Procedure for Determining Reporting Threshold
* * * * *
9. The result of these calculations is $6,682.254777. Since the
result is rounded to the nearest $100, the reporting threshold for rail
equipment accidents/incidents that occur during calendar year 2002 is
$6,700.
10. In the absence of data necessary to compute the reporting
threshold for calendar year 2003 according to the procedure described
in paragraphs 1-9 of this appendix B, the calendar year 2002 threshold
of $6,700 remains in effect for calendar year 2003 and, until further
notice, for all subsequent years.
Issued in Washington, DC., on December 19, 2002.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 02-32766 Filed 12-27-02; 8:45 am]
BILLING CODE 4910-06-M