Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17433 

Flooding source(s) Location of referenced elevation 

*Elevation in feet 

(NGVD) 

+Elevation in feet 

(NAVD) 

# Depth in feet 

above ground 

Modified 

Communities 

affected 

Little River ................................. At Wildwood Bridge ............................................................. +859 Blount County (Unincorporated Areas), City of 

Townsend. 

At Webb Road ..................................................................... +1045 

Pistol Creek .............................. At Carpenter’s Grade Rd .................................................... +957 City of Alcoa. 

At Campground Bridge/Davey Crockett Drive .................... +1112 

Russell Branch .......................... At Confluence with Little River ............................................ +826 City of Rockford. 

At Wright Rd ........................................................................ +911 

Springfield Branch .................... At Eagleton Rd .................................................................... +846 City of Maryville. 

At Old Knoxville Pike ........................................................... +869 

Unnamed Tributary to Brown 

Creek.

At confluence with Brown Creek ......................................... +919 City of Maryville. 

At Amerine Rd ..................................................................... +1002 

Unnamed Tributary to Laurel 

Bank Branch.

At confluence with Laurel Bank Branch .............................. +871 Blount County (Unincorporated Areas), City of 

Maryville. 

At U.S. Hwy 129 .................................................................. +1008 

Unnamed Tributary to Springfield Branch.At confluence with Springfield Branch ................................ +842 City of Maryville. 

At Harding St ....................................................................... +859 

*National Geodetic Vertical Datum. 

#Depth in feet above ground. 

+North American Vertical Datum. 

ADDRESSES 

Blount County (Unincorporated Areas) 

Maps are available for inspection at: Blount County Zoning Department, 1006 East Lamar Alexander Parkway, Maryville, Tennessee 37804. 

City of Alcoa 

Maps are available for inspection at: City of Alcoa Planning And Codes Department, 223 Associate Blvd., Alcoa, Tennessee 37701.

City of Maryville 

Maps are available for inspection at: City of Maryville Engineering Department, 416 West Broadway Avenue, Maryville, Tennessee 37801. 

City of Rockford 

Maps are available for inspection at: Rockford Town Hall, 3719 Little River Road, Rockford, Tennessee 37853. 

City of Townsend 

Maps are available for inspection at: Townsend City Hall, 133 Tiger Drive, Townsend, Tennessee 37882. 

(Catalog of Federal Domestic Assistance No. 

83.100, ‘‘Flood Insurance.’’) 

Dated: March 26, 2007. 

David I. Maurstad, 

Director, Mitigation Division, Federal 

Emergency Management Agency, Department 

of Homeland Security. 

[FR Doc. E7–6556 Filed 4–6–07; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 211 

[Docket No. FRA–2006–24838] 

RIN 2130–AB79 

Establishment of Emergency Relief 

Dockets and Procedures for Handling 

Petitions for Emergency Waiver of 

Safety Regulations 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is issuing procedures 

governing the creation of Emergency 

Relief Dockets (ERD) as well as 

procedures for obtaining waivers from a 

safety rule, regulation, or standard 

during an emergency situation or event. 

FRA’s purpose for establishing the ERD 

and emergency waiver procedures is to 

provide an expedited process for FRA to 

address the needs of the public and the 

railroad industry during emergency 

situations or events. 

DATES: This final rule is effective April 

9, 2007; petitions for reconsideration 

must be received on or before June 8, 

2007. Petitions received after that date 

will be considered to the extent possible 

without incurring additional expense or 

delay. 

ADDRESSES: Petitions for 

reconsideration: Any petitions for 

reconsideration related to Docket No. 

FRA–2006–24838, may be submitted by 

any of the following methods: 

• Web Site: http://dms.dot.gov. 

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 


rwilkins on PROD1PC63 with RULES
17434 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 

Room PL–401, Washington, DC 20590–

001. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC between 9 a.m. and 5 p.m. Monday 

through Friday, except Federal 

Holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: All petitions for 

reconsideration must include the agency 

name and docket number or Regulatory 

Identification Number (RIN) for this 

rulemaking. Note that all comments 

received will be posted without change 

to http://dms.dot.gov including any 

personal information. Please see the 

General Information heading in the 

‘‘Supplementary Information’’ section of 

this document for Privacy Act 

information related to any submitted 

petitions. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

dms.dot.gov at any time or to PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC between 9 a.m. and 5 p.m. Monday 

through Friday, except Federal 

Holidays. 

FOR FURTHER INFORMATION CONTACT: 

Grady C. Cothen, Jr., Deputy Associate 

Administrator for Safety Standards and 

Program Development, FRA, 1120 

Vermont Avenue, NW., RRS–2, Mail 

Stop 25, Washington, DC 20590 

(Telephone 202–493–6302), or Michael 

Masci, Trial Attorney, Office of Chief 

Counsel, FRA, 1120 Vermont Avenue, 

NW., Mail Stop 10, Washington, DC 

20590 (Telephone 202–493–6037). 

SUPPLEMENTARY INFORMATION: 

Background 

On August 30, 2006, FRA published 

an interim final rule (IFR) establishing 

emergency waiver procedures that 

further the agency’s ability to quickly 

address waiver requests in emergency 

situations while providing an 

opportunity for public input in the 

process. See 71 FR 51517. Based on 

comments received in response to the 

IFR and lessons learned from Hurricane 

Katrina, FRA is establishing procedures 

that allow the agency to expeditiously 

handle waiver requests that are directly 

related to an emergency situation or 

event. This will permit FRA to provide 

railroads necessary operational relief in 

a more timely manner during 

emergencies while at the same time 

maintaining public safety. 

Due to the catastrophic and 

devastating damage inflicted on the 

southern portion of the United States in 

the aftermath of Hurricane Katrina, FRA 

published a notice in the Federal 

Register establishing a temporary means 

for handling petitions for waiver from 

the Federal rail safety regulations that 

were directly related to the effects of the 

hurricane or were necessary to 

effectively address the relief efforts 

being undertaken in the area. See 70 FR 

53413 (September 8, 2005). FRA 

recognized that these types of petitions 

had to be afforded special consideration 

and had to be handled expeditiously in 

order to ensure that the emergency 

operational needs of the railroads were 

addressed while at the same time 

ensuring the safety of the public, 

including railroad employees. Such 

emergency waivers would help ensure 

that routine safety regulations would 

not stand in the way of railroad efforts 

to cope with the emergency and to 

provide timely relief and recovery 

efforts. FRA’s procedures prior to the 

August 30, 2006 IFR related to the 

handling of petitions for waiver from 

the Federal rail safety regulations 

contained in 49 CFR part 211, did not 

lend themselves to quick and immediate 

decisions by the agency, nor were they 

intended to. The previous procedures 

contained in 49 CFR part 211, 

established a process whereby FRA 

publishes a notice of any petition for 

waiver in the Federal Register. This 

notice then allows interested parties a 

period of time in which to comment on 

any such petition, generally thirty (30) 

days, and provides for a public hearing 

should one be requested. This process 

generally takes several months to 

accomplish. Accordingly, FRA 

instituted a temporary set of expedited 

procedures for handling petitions for 

waivers that were directly related to the 

effects and aftermath of Hurricane 

Katrina. The subsequent IFR was based 

on those procedures. 

To prepare for future emergencies, 

FRA is issuing procedures for handling 

petitions for waivers in emergency 

situations. These procedures are based 

on the temporary procedures that were 

instituted in response to Hurricane 

Katrina. FRA believes that the 

emergency procedures contained in this 

final rule provide the agency with the 

ability to promptly and effectively 

address waiver requests directly related 

to an emergency while ensuring that the 

public and all interested parties are 

afforded proper notice of any such 

request, and are provided a sufficient 

opportunity to comment on any such 

request. 

When faced with a sudden emergency 

event or situation the Administrator 

may activate the emergency waiver 

procedures contained in this final rule. 

FRA will consider local, state and 

federal declarations of emergency when 

determining whether circumstances 

qualify as an emergency event. To 

declare that the emergency waiver 

procedures are in effect, the 

Administrator will issue a statement in 

the Document Management System 

(DMS) at http://dms.dot.gov. The DMS 

will automatically notify parties that 

have signed up for the Emergency 

Waiver Listserv. (Instructions on how to 

sign up for automatic notification of 

additions to a docket are found at 

http://dms.dot.gov.) In addition, FRA 

will make every effort to post the 

statement on its Web site 

(http://www.fra.dot.gov/). FRA will also 

publish a notice in the Federal Register 

alerting interested parties that the 

emergency waiver procedures will be 

utilized. FRA anticipates that the 

circumstances that constitute the 

occurrence of, or imminent threat of an 

emergency event will occur 

infrequently. 

The types of emergency events 

intended to be covered by this final rule 

could be local, regional, national or 

international in scope and could 

include natural and manmade disasters, 

such as hurricanes, floods, earthquakes, 

mudslides, forest fires, snowstorms, 

terrorist acts, increased threat levels, 

chemical or biological attacks, 

pandemic outbreaks, releases of 

dangerous radiological, chemical, or 

biological material, or war-related 

activities. Not only will our Nation’s 

railroads be directly affected by many 

emergency events, they will also play a 

key role in the aftermath of those events, 

by providing necessary supplies and by 

moving displaced families and relief 

personnel and supplies to and from an 

affected areas. Although the type of 

relief that might be granted under these 

provisions would vary greatly based on 

the type of emergency event involved, it 

is expected that the relief would 

generally involve such things as: 

Temporary postponement of required 

maintenance, repair, or inspection 

related to railroad equipment, track, and 

signals; temporary relief from certain 

record keeping or reporting 

requirements; or short-term relief from 

various operational requirements. Relief 

granted will not extend for more than 

nine months. For matters that may 

significantly impact the missions of the 

Department of Homeland Security 

(DHS), FRA will consult and coordinate 

with DHS as soon as practicable. 


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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17435 

FRA will establish a new ERD each 

calendar year. FRA will publish a notice 

in the Federal Register identifying the 

new docket number by January 31st of 

each year. When the Administrator 

determines the occurrence of, or 

imminent threat of, an emergency event, 

FRA will accept emergency waiver 

petitions for review. If FRA determines 

that a petition is directly related to an 

emergency situation, the petition will be 

placed in the ERD for that year. FRA 

will receive comments on a petition for 

72 hours from the close of business on 

the day that the petition is posted on the 

ERD. During that time, FRA will arrange 

a telephone conference for any party 

that requests a public hearing. If, after 

the telephone conference, a public 

hearing is still desired, then FRA will 

arrange for such a hearing pursuant to 

49 CFR part 211 as soon as practicable. 

FRA may grant a petition for waiver 

prior to conducting a public hearing if 

such petition is in the public interest 

and consistent with safety. These 

procedures are intended to balance the 

need for expedited waiver procedures 

during an emergency event to ensure 

public safety, and the need for adequate 

time to allow full public participation. 

The ERD and emergency waiver 

procedures contained in this final rule 

do not waive any regulatory 

requirements. They only reduce the 

length of the notice and comment 

period to permit FRA to act on the 

request as quickly as possible. 

FRA solicited written comments from 

the public based on the IFR in 

accordance with the Administrative 

Procedures Act (APA) 5 U.S.C. 553. 

Consideration of public comment allows 

FRA to access additional viewpoints 

from interested parties and include 

them when appropriate. By the close of 

the comment period on October 30, 

2006, one set of comments was received. 

The comments were received on 

September 6, 2006 from the 

Brotherhood of Locomotive Engineers 

and Trainmen (BLET). The comments 

raise questions regarding two IFR 

sections: 49 CFR 211.45(i) providing a 

72-hour period from when the petition 

is filed for interested parties to request 

a hearing; and, 49 CFR 211.45(g) 

describing the treatment of petitions for 

emergency waiver that do not meet the 

threshold requirements for 

consideration under 49 CFR 211.45. The 

BLET’s comments are addressed in the 

relevant regulatory paragraphs of the 

section-by-section analysis below. 

Section-by-Section Analysis 

Processing of Emergency Waivers 

§ 211.45 

Section 211.45(a). This paragraph 

makes clear that the emergency waiver 

procedures are intended to go into effect 

when there is an occurrence of, or 

imminent threat of, an emergency event 

and public safety would benefit from 

providing the railroad industry with 

operational relief. The types of 

emergency events intended to be 

covered by this final rule could be local, 

regional, national or international in 

scope and could include natural and 

manmade disasters, such as hurricanes, 

floods, earthquakes, mudslides, forest 

fires, snowstorms, terrorist acts, 

increased threat levels, chemical or 

biological attacks, pandemic releases of 

dangerous radiological, chemical, or 

biological material, or war-related 

activities. 

Section 211.45(b). This paragraph 

contains information regarding FRA’s 

creation of ERDs. Establishing a new 

ERD each year allows FRA to receive 

petitions for emergency waivers as soon 

as the occurrence of, or imminent threat 

of an emergency event is determined to 

have occurred. A yearly ERD is also a 

convenient way to organize the 

emergency waiver petitions and related 

documents. For reference purposes any 

petition can be located by the year in 

which the emergency event or situation 

occurred. The docket system will also 

provide notice to interested parties. The 

DMS Internet site that is identified in 

this final rule allows any interested 

party to subscribe, without fee, to the 

Emergency Waiver Listserv which will 

automatically notify the party via e-mail 

when documents are added to the 

designated ERD. This paragraph also 

makes clear that FRA will publish by 

January 31st of each year, a Federal 

Register notice identifying the ERD for 

that year. This will inform interested 

parties where to find petitions for 

emergency waiver during an emergency 

and will allow such parties to subscribe 

to the DMS Emergency Waiver Listserv. 

Publishing a notice in the previous 

year’s ERD will allow the parties 

interested in the prior year to 

automatically receive the new docket 

number. 

Section 211.45(c). This paragraph 

identifies the Administrator as the 

individual responsible for determining 

when the emergency waiver procedures 

will be utilized. The Administrator is 

the appropriate person to determine 

whether a situation or set of 

circumstances constitutes an emergency 

for purposes of FRA’s use of the 

emergency waiver procedures. The 

Administrator has a unique familiarity 

with the rail-industry through oversight 

of the following: Managing 

comprehensive safety programs and 

regulatory initiatives; enforcement of 

FRA safety regulations; development 

and implementation of national freight 

and passenger rail policy; and oversight 

of diverse research and development 

activities in support of improved 

railroad safety. During significant 

emergencies the Administrator has 

extensive interaction with the DHS, 

Director of National Intelligence, the 

Federal Bureau of Investigation, the 

Surface Transportation Board and other 

Federal agencies responsible for 

addressing public safety, health, 

security and welfare. In addition, the 

Administrator maintains 

contemporaneous communication with 

relevant rail transportation entities, 

including passenger and freight 

railroads. This experience and 

interaction provides a basis from which 

the Administrator can assess whether a 

situation or set of circumstances rises to 

the level of an emergency event that 

would necessitate activation of the 

emergency waiver procedures. FRA’s 

statement declaring that emergency 

procedures are in effect will be issued 

in the appropriate ERD. The DMS 

Internet site that is identified in the rule 

text allows any subscribing interested 

party to subscribe, without fee, to the 

Emergency Waiver Listserv application 

which automatically notifies the party 

via e-mail when documents are added to 

the appropriate ERD. The 

Administrator’s determination that 

emergency waiver procedures are in 

effect, would be one of those documents 

automatically transmitted to interested 

parties via e-mail. In determining 

whether an emergency exists the 

Administrator may consider states of 

emergency issued by a local, State, or 

Federal official, and determinations by 

the Federal government that a credible 

threat of a terrorist attack exists. A 

determination made by one of these 

officials that a state of emergency exists, 

indicates that special attention is 

needed to address the situation, and 

railroad operations may be implicated. 

The Administrator will consider 

whether such emergencies significantly 

affect railroad operations, and whether 

it would be beneficial to activate the 

emergency waiver procedures. 

Section 211.45(d). This paragraph 

identifies other methods by which 

interested parties may be notified of 

FRA’s determination to utilize the 

emergency waiver procedures. If 

conditions permit, FRA will issue the 

Administrator’s determination on FRA’s 


rwilkins on PROD1PC63 with RULES
17436 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 

Web site to quickly notify the public. 

FRA will also publish a notice in the 

Federal Register as soon as possible 

after the Administrator’s determination 

to ensure full notification to all 

interested parties. 

Section 211.45(e). This paragraph 

identifies the required content of a 

petition for emergency waiver. To be 

considered under the emergency waiver 

procedures, FRA must first determine 

that the petition is directly related to the 

occurrence of, or imminent threat of an 

emergency event. FRA will base its 

determination on the information 

provided in the petition. Thus, the 

petition should contain information that 

sufficiently demonstrates the 

relationship between the emergency 

event and the waiver relief being sought. 

Section 211.45(f). This paragraph 

instructs the public how to submit a 

petition under the emergency waiver 

procedures. FRA is permitting 

submission by e-mail, fax, or mail. 

Permitting a variety of methods for 

submitting petitions for emergency 

waiver is intended to enhance the 

convenience and effectiveness of the 

process during the occurrence of, or 

imminent threat of an emergency event. 

Section 211.45(g). This paragraph 

contains information regarding FRA’s 

handling of waiver petitions under the 

emergency waiver procedures. After the 

FRA declares that the emergency 

procedures are in effect, it will accept 

petitions for emergency waivers. 

Petitions that are determined to be 

directly related to an emergency will be 

placed in the ERD for that year. The 

DMS numbers each document that is 

added to a docket. Thus, each petition 

submitted to the ERD will have a unique 

document number. For reference 

purposes, this document number should 

be identified on all communications 

related to that particular waiver 

petition. 

One comment asserts that FRA’s 

handling of petitions that do not qualify 

for emergency procedures under this 

paragraph will be different than the 

current requirements for non-emergency 

petitions under 49 CFR 211.9. 

Specifically, the commenter is 

concerned that 49 CFR 211.9(c) will not 

apply to the these petitions, because 

compliance with that provision is not 

required as part of a petition for 

emergency waiver under 49 CFR 

211.45(e). FRA believes that the IFR rule 

text explaining that non-emergency 

petitions will be processed ‘‘under 

normal waiver procedures of this 

subpart’’ addresses the commenter’s 

concern. The IFR did not intend to 

change the content required for 

petitions under 49 CFR 211.9. The 

information requirements under 49 CFR 

211.9(c) remain unchanged. The 

requirements will apply equally to 

petitions that are submitted initially 

under 49 CFR 211.45, as it will for 

petitions submitted directly under 49 

CFR 211.9. 

Section 211.45(h). This paragraph 

explains the comment process. FRA 

believes that 72 hours is a reasonable 

length of time to consider comments in 

an emergency situation. During 

Hurricane Katrina, public safety was 

well served by FRA’s expedited 

emergency waiver procedures. 

Similarly, during future emergency 

situations the public interest will 

require an expedited review process to 

ensure public safety. FRA believes that 

the emergency waiver procedures and 

the need to quickly address these types 

of waiver petitions fall within the good 

cause exemption under section 553 of 

the APA relating to providing prior 

notice and comment. Nonetheless, FRA 

is providing notice to interested parties 

and is permitting a short comment 

period prior to taking any agency action. 

Moreover, FRA is providing an 

opportunity for a public hearing as soon 

as practicable after initial consideration 

of an emergency waiver petition. 

Section 211.45(i). FRA is clarifying 

the calculation of the 72-hour period as 

intended in this paragraph. A comment 

to the IFR noted that it would be 

difficult to ascertain the proper deadline 

for comments, because the DMS Web 

site indicates the date a filing is 

published, and not the time. 

Recognizing this limitation, FRA 

intends to receive comments on a 

petition for 72 hours from the close of 

business (5 p.m. eastern time) on the 

day that the petition is posted on the 

ERD. Consequently, the comment period 

will end at 5 p.m. on the third day of 

the comment period. Weekends and 

holidays will be included in the 

calculation. 

FRA continues to believe that a 72- 

hour period is a sufficient amount of 

time to allow for public comment on 

petitions for emergency waiver. 

Allowing additional time would 

jeopardize the safety of the general 

public affected by the emergency. Some 

potential commenters may be unable to 

comment because of exposure to the 

emergency. FRA understands that this is 

a concern, but anticipates that other 

safeguards and options, as well as other 

parties with similar interests would 

likely be available during an emergency. 

These various available resources would 

be utilized to help determine 

appropriate relief from Federal 

regulations. The interim rule also 

provided multiple methods for 

submitting comments to accommodate 

interested parties with limited 

capability to comment. 

This paragraph describes how FRA 

will handle requests for hearing. FRA 

believes that a telephone conference 

will provide interested parties with an 

opportunity to present evidence 

regarding a particular petition to a 

neutral decision maker. If a party 

requests a public hearing after the 

telephone conference, FRA will provide 

one as soon as practicable. During an 

emergency the public interest requires 

that an expedited waiver process be 

utilized. 

Section 211.45(j). This paragraph 

identifies the process by which FRA 

will make decisions on emergency 

waivers including: FRA’s consideration 

of the petition; notification to the public 

of FRA’s decision; and the limits of any 

relief granted under the procedures. The 

ability to grant or deny a petition 

without delay is essential to ensuring 

public safety during an emergency. The 

opportunity to reconsider a petition 

after the initial decision is made will 

ensure a robust deliberation. Under 

circumstances where reconsideration is 

appropriate, FRA will utilize additional 

time to consider the parties’ input. 

FRA’s understanding of an emergency 

may change as the emergency event 

develops. Accordingly, the public will 

benefit from FRA’s ability to reconsider 

decisions, and make appropriate 

adjustments based on further 

information. This will also ensure that 

FRA has the opportunity to address all 

relevant arguments made by interested 

parties anytime after its initial 

consideration of a petition. During an 

emergency it is a priority to address 

petitions for emergency waiver and 

make a decision without delay. Relevant 

comments may be submitted after the 

72-hour comment period, and the public 

will benefit from ensuring that FRA has 

the opportunity to address those 

comments as soon as practicable. 

Posting the decision letters in the 

appropriate ERD will provide notice to 

interested parties. The DMS Internet site 

that is identified in the rule text allows 

any interested party to subscribe, 

without fee, to its list serve application 

which will automatically notify the 

party via e-mail when documents are 

added, including the Administrator’s 

determination that emergency waiver 

procedures are in effect, to the 

designated ERD. 

This paragraph also makes clear that 

any relief granted under these 

procedures will be limited to no more 

than 9 months. If relief is needed for a 

period of time beyond 9 months, a 

petition can be submitted through the 


rwilkins on PROD1PC63 with RULES
Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17437 

traditional waiver process. Where issues 

of safety and security overlap it may be 

necessary for FRA to coordinate with 

DHS. 

General Information 

This rule finalizes the interim rule 

that expedited the already-existing 

waiver process during an emergency 

with one minor clarification to the rule 

text in 49 CFR 211.45(i). Considering 

that the ERD and procedures for 

emergency waiver petitions were 

procedural modifications that did not 

change any regulatory requirements, 

together with the need to issue the 

procedural changes as soon as possible 

since we had entered the official 

hurricane season, FRA issued the IFR 

with a request for comments on August 

30, 2006. Congress authored a good 

cause exemption to the informal 

rulemaking procedures to address 

emergencies (such as a response to a 

natural disaster) that might arise 

justifying issuance of a rule without 

prior public participation. As hurricane 

season began again, unfortunately, 

another emergency event could have 

occurred immediately. The public 

benefits from having the emergency 

waiver procedures in place before 

another emergency exists. Delay in the 

adoption of these procedures for 

expediting waivers could have caused 

serious harm to the public and the rail 

industry. In contrast to the potential 

harm that could be caused by delay, the 

impact of the procedural modifications 

on the public were minimal. 

Consequently, pursuant to 5 U.S.C. 

553(b)(3)(B), FRA asserted its belief that 

good cause existed for finding that prior 

public notice of this action is both 

impracticable and unnecessary. 

However, FRA did request written 

comments on the content of the IFR and 

addressed the comment in the sectionby-section portion of this document. 

Privacy 

All potential petitioners for 

reconsideration should be aware that 

anyone is able to search the electronic 

form of all comments received into any 

agency docket by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). You may review DOT’s 

complete Privacy Act Statement in the 

Federal Register published on April 11, 

2000 (Volume 65, Number 70; Pages 

19477–78) or you may visit http:// 

dms.dot.gov. 

Regulatory Impact 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule has been evaluated in 

accordance with Executive Order 12866 

and DOT policies and procedures. The 

modifications contained in this final 

rule are not considered significant 

because they are intended to merely 

institute an emergency relief docket, 

and establish internal FRA procedures 

for handling waivers directly related to 

an emergency. This final rule will not 

change any regulatory requirements. 

The economic impact of the procedures 

and establishment of the docket 

contained in this final rule will not 

affect the cost of compliance with the 

existing regulations. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires a review 

of rules to assess their impact on small 

entities. FRA certifies that this final rule 

does not have a significant impact on a 

substantial number of small entities. 

Because the procedures and the 

establishment of an emergency docket 

contained in this rule does not change 

regulatory requirements, FRA has 

concluded that there are no substantial 

economic impacts on small units of 

government, businesses, or other 

organizations. 

Paperwork Reduction Act 

This final rule does not change any of 

the information collection requirements. 

Environmental Impact 

FRA has evaluated this final rule 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 document 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) of FRA’s Procedures. 

Federalism Implications 

FRA believes it is in compliance with 

Executive Order 13132. Because the 

emergency docket and procedures for 

emergency waiver petitions will not 

change any regulatory requirements, 

this document will not have a 

substantial effect on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. This final rule 

will not have federalism implications 

that impose any direct compliance costs 

on State and local governments. 

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 

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 

$128,100,000 or more 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. Because the ERD and procedures 

for emergency waiver petitions will not 

change any regulatory requirements, 

this document will not result in the 

expenditure, in the aggregate, of 

$128,100,000 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 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated the final rule in accordance 

with Executive Order 13211. Because 

the emergency docket and procedures 


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17438 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 

for emergency waiver petitions will not 

change any regulatory requirements, 

FRA has determined that this document 

will not 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. 

List of Subjects in 49 CFR Part 211 

Administrative practice and 

procedure, Railroad safety. 

Adoption of the Amendment 

■ In consideration of the foregoing, the 

interim rule amending part 211 of 

Chapter II of Title 49 of the Code of 

Federal Regulations published at 71 FR 

51521 on August 30, 2006 is adopted as 

a final rule with the following change: 

PART 211—RULES OF PRACTICE 

■ 1. The authority citation for part 211 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20114, 

20306, 20502–20504, and 49 CFR 1.49. 

■ 2. Section 211.45 is revised to read as 

follows: 

§ 211.45 Petitions for emergency waiver of 

safety rules. 

(a) General. This section applies only 

to petitions for waiver of a safety rule, 

regulation, or standard that FRA 

determines are directly related to the 

occurrence of, or imminent threat of, an 

emergency event. For purposes of this 

section an emergency event could be 

local, regional, or national in scope and 

includes a natural or manmade disaster, 

such as a hurricane, flood, earthquake, 

mudslide, forest fire, significant 

snowstorm, terrorist act, biological 

outbreak, release of a dangerous 

radiological, chemical, or biological 

material, war-related activity, or other 

similar event. 

(b) Emergency Relief Docket. Each 

calendar year FRA creates an Emergency 

Relief Docket (ERD) in the publicly 

accessible DOT Document Management 

System (DMS). The DMS can be 

accessed 24 hours a day, seven days a 

week, via the Internet at the docket 

facility’s Web site at http://dms.dot.gov. 

All documents in the DMS are available 

for inspection and copying on the Web 

site or are available for examination at 

the DOT Docket Management Facility, 

Room PL–401 (Plaza Level), 400 7th 

Street, SW., Washington, DC 20590 

during regular business hours (9 a.m.–

5 p.m.). By January 31st of each year, 

FRA publishes a notice in the Federal 

Register identifying by docket number 

the ERD for that year. A notice will also 

be published in the previous year’s ERD 

identifying the new docket number. 

(c) Determining the existence of an 

emergency event. If the Administrator 

determines that an emergency event 

identified in paragraph (a) of this 

section has occurred, or that an 

imminent threat of it occurring exists, 

and determines that public safety or 

recovery efforts require that the 

provisions of this section be 

implemented, the Administrator will 

activate the Emergency Relief Docket 

identified in paragraph (d) of this 

section. In determining whether an 

emergency exists, the Administrator 

may consider declarations of emergency 

made by local, State, or Federal officials, 

and determinations by the Federal 

government that a credible threat of a 

terrorist attack exists. 

(d) Additional notification. When 

possible, FRA will post the FRA 

Administrator’s determination 

described in paragraph (b)(1) of this 

section on its website at http:// 

www.fra.dot.gov. FRA will also publish 

a notice in the Federal Register alerting 

interested parties of the FRA 

Administrator’s determination as soon 

as practicable. 

(e) Content of petitions for emergency 

waivers. Petitions submitted to FRA 

pursuant to this section should 

specifically address how the petition is 

related to the emergency, and to the 

extent practicable, contain the 

information required under § 211.9(a) 

and (b). The petition should at a 

minimum describe the following: how 

the petitioner or public is affected by 

the emergency (including the impact on 

railroad operations); what FRA 

regulations are implicated by the 

emergency (e.g. movement of defective 

equipment); how waiver of the 

implicated regulations would benefit 

petitioner during the emergency; and 

how long the petitioner expects to be 

affected by the emergency. 

(f) Filing requirements. Petitions filed 

under this section, shall be submitted 

using any of the following methods: 

(1) Direct e-mail to FRA at: 

RRS.Correspondence@fra.dot.gov; 

(2) Direct fax to FRA at: 202–493–

6309; or 

(3) To FRA Docket Clerk, Office of 

Chief Counsel, RCC–10, Mail Stop 10, 

1120 Vermont Avenue, NW., 

Washington, DC 20590, fax no. (202) 

493–6068. 

(g) FRA Handling and Initial Review. 

Upon receipt and initial review of a 

petition for waiver, to verify that it 

meets the criteria for use of these 

emergency procedures, FRA will add 

the petition to the ERD. The DMS 

numbers each document that is added to 

a docket. (For example, the first 

document submitted to the docket in 

2006 will be identified as FRA–2006–

XXX–1.) Thus, each petition submitted 

to the ERD will have a unique document 

number which should be identified on 

all communications related to petitions 

contained in this docket. If FRA 

determines that the petition does not 

meet the criteria for use of these 

emergency procedures, FRA will notify 

the petitioner and will process the 

petition under normal waiver 

procedures of this subpart. 

(h) Comments. Comments should be 

submitted within 72 hours from the 

close of business on the day that the 

petition is entered into and available on 

the DMS. Any comment received after 

that period will be considered to the 

extent practicable. All comments should 

identify the appropriate ERD and should 

identify the specific document number 

of the petition designated by the DMS 

in the ERD. Interested parties 

commenting on a petition under this 

section should also include in their 

comments to the ERD telephone 

numbers at which their representatives 

may be reached. Interested parties may 

submit their comments using any of the 

following methods: 

(1) Direct e-mail to FRA at: 

RRS.Correspondence@fra.dot.gov. 

(2) Direct fax to FRA at: 202–493–

6309. 

(3) Submission of comments to the 

Docket Clerk, DOT Docket Management 

Facility, Room PL–401 (Plaza Level), 

400 7th Street, SW., Washington, DC 

20590 or electronically via the internet 

at http://dms.dot.gov. Any comments or 

information sent directly to FRA will be 

immediately provided to the DOT DMS 

for inclusion in the ERD. 

(i) Request for hearing. Parties 

desiring a public hearing on any 

petition being processed under this 

section must notify FRA through the 

comment process identified in 

paragraph (h) of this section within 72 

hours from the close of business on the 

day that the petition is entered into and 

available on the DMS. In response to a 

request for a public hearing, FRA will 

arrange a telephone conference between 

all interested parties to provide an 

opportunity for oral comment. The 

conference will be arranged as soon as 

practicable. After such conference, if a 

party stills desires a public hearing on 

the petition, then a public hearing will 

be arranged as soon as practicable 

pursuant to the provisions contained in 

49 CFR part 211. 

(j) Decisions. FRA may grant a 

petition for waiver prior to conducting 

a public hearing if such action is in the 

public interest and consistent with 


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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17439 

safety or in situations where a hearing 

request is received subsequent to the 72- 

hour comment period. In such an 

instance, FRA will notify the party 

requesting the public hearing of its 

decision and will arrange to conduct 

such hearing as soon as practicable. 

(1) FRA reserves the right to reopen 

any docket and reconsider any decision 

made pursuant to these emergency 

procedures based upon its own 

initiative or based upon information or 

comments received subsequent to the 

72-hour comment period or at a later 

scheduled public hearing. 

(2) FRA decision letters, either 

granting or denying a petition, will be 

posted in the appropriate ERD and will 

reference the document number of the 

petition to which it relates. 

(3) Relief granted shall not extend for 

more than nine months. 

(4) For matters that may significantly 

impact the missions of the Department 

of Homeland Security, FRA consults 

with the Department of Homeland 

Security as soon as practicable. 

Joseph H. Boardman, 

Federal Railroad Administrator. 

[FR Doc. 07–1667 Filed 4–6–07; 8:45 am] 

BILLING CODE 4910–06–P 


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