[Federal Register Volume 72, Number 67 (Monday, April 9, 2007)]
[Rules and Regulations]
[Pages 17433-17439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1667]


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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.

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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:
    <bullet> Web Site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    <bullet> Fax: 1-202-493-2251.
    <bullet> Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building,

[[Page 17434]]

Room PL-401, Washington, DC 20590-001.
    <bullet> 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.
    <bullet> 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.

[[Page 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 Sec.  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

[[Page 17436]]

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

[[Page 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 
section-by-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

[[Page 17438]]

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

0
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

0
1. The authority citation for part 211 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, 
and 49 CFR 1.49.


0
2. Section 211.45 is revised to read as follows:


Sec.  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 Sec.  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: <a href="/cdn-cgi/l/email-protection#b0e2e2e39ef3dfc2c2d5c3c0dfded4d5ded3d5f0d6c2d19ed4dfc49ed7dfc6"><span class="__cf_email__" data-cfemail="1e4c4c4d305d716c6c7b6d6e71707a7b707d7b5e786c7f307a716a30797168">[email protected]</span></a>;
    (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: <a href="/cdn-cgi/l/email-protection#46141415680529343423353629282223282523062034276822293268212930"><span class="__cf_email__" data-cfemail="d1838382ff92bea3a3b4a2a1bebfb5b4bfb2b491b7a3b0ffb5bea5ffb6bea7">[email protected]</span></a>.
    (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

[[Page 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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