43024 Federal Register / Vol. 62, No. 154 / Monday, August 11, 1997 / Notices

then sixteen inches above the top of the

rail.

The Belfast & Moosehead Lake Rail

Road Company is requesting an

exemption to the requirement of these

steps (2) for their steam locomotive

#1149. The railroad states that due to

the design and placement of the

locomotive cylinders and pilot truck,

the steps cannot be applied without

substantially rebuilding the front of the

locomotive. Also, application of the

pilot sill steps would block access to the

pilot truck journal boxes, make

inspections more difficult, and possibly

interfere with the movement of the

locomotive’s outside-frame pilot truck.

Employees of the Belfast & Moosehead

Lake Rail Road Company are not

permitted to ride the pilot of the

locomotive.

Interested parties are invited to

participate in these proceedings by

submitting written views, data, or

comments. FRA does not anticipate

scheduling a public hearing in

connection with these proceedings since

the facts do not appear to warrant a

hearing. If any interested party desires

an opportunity for oral comment, they

should notify FRA, in writing, before

the end of the comment period and

specify the basis for their request.

All communications concerning these

proceedings should identify the

appropriate docket number (e.g., Waiver

Petition Docket Number H–97–4) and

must be submitted in triplicate to the

Docket Clerk, Office of Chief Counsel,

FRA, Nassif Building, 400 Seventh

Street, S.W., Mail Stop 10, Washington,

D.C. 20590. Communications received

within 30 days of the date of this notice

will be considered by FRA before final

action is taken. Comments received after

that date will be considered as far as

practicable. All written communications

concerning these proceedings are

available for examination during regular

business hours (9:00 a.m.–5:00 p.m.) at

FRA’s temporary docket room located at

1120 Vermont Avenue, N.W., Room

7051, Washington, D.C. 20005.

Issued in Washington, D.C. on August 6,

1997.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety

Standards and Program Development.

[FR Doc. 97–21152 Filed 8–8–97; 8:45 am]

BILLING CODE 4910–06–P

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[FRA Docket No. SBR 97–1, Notice 1]

RIN NO. 2130—AB15

Interim Policy Statement Concerning

Small Entities Subject to the Railroad

Safety Laws

AGENCY: Department of Transportation

(DOT), Federal Railroad Administration

(FRA).

ACTION: Notice of interim statement of

agency policy concerning small entities

subject to the railroad safety laws.

SUMMARY: In this notice, FRA explains

its communication and enforcement

policies and programs concerning small

businesses subject to the federal railroad

safety laws. These policies are being

published pursuant to requirements set

forth in the Small Business Regulatory

Enforcement Fairness Act of 1996. FRA

has in place programs that devote

special attention to the unique concerns

and operations of small entities in the

administration of the national railroad

safety compliance and enforcement

program. FRA expects that publication

of these policies and programs will

enhance safe operations for small

railroads, contractors, and shippers, and

improve communication between FRA

and small entities.

DATES: Effective Date: This Interim

Statement of Policy is effective October

10, 1997.

Written Comments: Written comments

must be submitted to FRA before

November 30, 1997.

FOR FURTHER INFORMATION PLEASE

CONTACT:

(1) Principal Program Person: Mark

Weihofen, Office of Safety, Planning

and Evaluation Staff Director, RRS–21,

Federal Railroad Administration, 400

Seventh Street, SW, Stop 25,

Washington, D.C., 20590; telephone

202–632–3303.

(2) Principal Attorney: Christine

Beyer, Office of Chief Counsel, RCC–11,

Federal Railroad Administration, 400

Seventh Street, SW, Stop 10,

Washington, D.C., 20590; telephone

202–632–6189.

SUPPLEMENTARY INFORMATION:

I. Legislative Background

The Small Business Regulatory

Enforcement Fairness Act of 1996 (Pub.

L. No. 104–121) (SBREFA) establishes

new requirements for federal agencies to

follow with respect to small businesses,

creates new duties for the Small

Business Administration (SBA), and

amends portions of the Regulatory

Flexibility Act (5 U.S.C. 601, et seq.)

and the Equal Access to Justice Act

(EAJA) (5 U.S.C. 501, et seq.). The

primary purposes of SBREFA are to

implement recommendations developed

at the 1995 White House Conference on

Small Business, to provide small

businesses enhanced opportunities for

judicial review of final agency action, to

encourage small business participation

in the regulatory process, to develop

accessible sources of information on

regulatory requirements for small

business, to create a cooperative

regulatory environment for small

business, and to make federal regulators

accountable for ‘‘excessive’’

enforcement actions.

In order to accomplish these goals,

SBREFA, among other things, requires

federal enforcement agencies to institute

two new policies. The first is a

communication policy, described in

section 213 of the legislation, in which

each agency must ‘‘answer inquiries by

small entities concerning information

on, and advice about, compliance with’’

statutes and regulations within the

agency’s jurisdiction, ‘‘interpreting and

applying the law to specific sets of facts

supplied by the small entity.’’ The

second is an enforcement policy,

required by section 223 of SBREFA,

which requires each agency to establish

a policy or program

to provide for the reduction, and under

appropriate circumstances for the waiver, of

civil penalties for violations of a statutory or

regulatory requirement by a small entity.

Under appropriate circumstances, an agency

may consider ability to pay in determining

assessments on small entities.

This enforcement policy must include

conditions or exclusions, such as

requiring a small entity to correct the

violation within a reasonable time;

excluding small businesses that have

been subject to several enforcement

actions by the agency; excluding actions

that involve willful or criminal conduct;

excluding actions that pose serious

health, safety, or environmental threats;

and requiring a good faith effort to

comply with the law.

SBREFA incorporates the definition

for ‘‘small entity’’ that is established by

existing law (5 U.S.C. 601, 15 U.S.C.

632, 13 CFR part 121) for those

businesses to be covered by the agency

policies. Generally, a small entity is a

business concern that is independently

owned and operated, and is not

dominant in its field of operation. Also,

‘‘small governmental jurisdictions’’ that

serve populations of 50,000 or less are

small entities. (Commuter railroads are

governmental jurisdictions, and some

may fit within this statutory delineation
Federal Register / Vol. 62, No. 154 / Monday, August 11, 1997 / Notices 43025

for small governmental jurisdictions, or

small entities.) An agency may establish

one or more other definitions for this

term, in consultation with the SBA and

after opportunity for public comment,

that are appropriate to the agency’s

activities.

II. Definition of Small Entity in the

Railroad Industry

Pursuant to its statutory authority, the

SBA promulgated regulations that

clarify the term ‘‘small entity’’ by

industry, using number of employees or

annual income as criteria. 13 CFR

121.101–108, and 201. In the SBA

regulations, main line railroads with

1500 or fewer employees, and switching

or terminal establishments with 500 or

fewer employees constitute small

entities. The SBA regulations do not

address hazardous material shippers in

the railroad industry.

Prior to the SBA regulations

establishing size categories, the

Interstate Commerce Commission (ICC)

developed a classification system for

freight railroads as Class I, II or III,

based on annual operating revenue.

(The detailed, qualifying criteria for

these classifications are set forth in 49

CFR part 1201.) The Department of

Transportation’s Surface Transportation

Board, which succeeded the ICC, has

not changed these classifications. The

ICC classification system has been used

pervasively by FRA and the railroad

industry to identify entities by size. The

SBA recognizes this classification

system as a sound one, and concurs

with FRA’s decision to continue using

it, provided the public has notice of the

classification system in use for any

particular proceeding and an

opportunity to comment on it. FRA has

decided to define ‘‘small entity,’’ on an

interim basis, to include only those

entities whose revenues would bring

them within the Class III definition.

FRA believes this definition is a much

more realistic and useful place to draw

the line for safety purposes than the

general SBA definition, but that several

other possible definitions deserve

consideration. Therefore, for purposes

of the Interim Statement of Policy at this

point in time, FRA wishes to clarify that

small entities are: the Class III railroads;

the hazardous material shippers that

meet the income level established for

Class III railroads (those with annual

operating revenues of $20 million per

year or less, as set forth in 49 CFR

1201.1–1); railroad contractors that meet

the income level established for Class III

railroads; and commuter railroads or

small governmental jurisdictions that

serve populations of 50,000 or less. The

principles concerning the aggregation of

company affiliates set forth in DOT’s

regulations at 49 C.F.R. 6.7(f) apply to

this definition for purposes of claims

brought under EAJA. However, FRA

intends to develop a new definition for

the term ‘‘small entity’’ for the railroad

industry that will apply to the programs

set forth in this Policy Statement.

Therefore, FRA now invites comment

from the public on potential, alternative

definitions for the term ‘‘small entity.’’

Suggested new definitions should be

accompanied by supportable rationale,

including economic and employee data,

operating concerns, and an explanation

of how SBREFA’s legislative intent

would be met by the adoption of a

particular definition. The comments

should also include how the proposed

definition would apply to railroads,

shippers, commuter railroads, and

contractors working in the railroad

industry.

FRA is contemplating several

potential new definitions at this time:

fifteen employees subject to the hours of

service laws, which was established by

Congress as a benchmark for small

business exemptions in the Hours of

Service Act, 49 U.S.C. 20102, 21101–

21107, 21303–4; 400,000 person/hours

worked annually, which equates to

approximately 200 employees and

which FRA has used as a size

classification in regulatory programs in

the past; the Class III income

designation currently in use; the

employee delineations established by

SBA regulation for main line and

switching railroads; any combination of

these; and entirely new designations.

FRA invites comments from all

individuals and entities subject to the

railroad safety laws and other members

of the public on these potential

designations for ‘‘small entity’’ or any

additional classifications that have not

yet been discussed. After reviewing

comments submitted, FRA will conduct

a public meeting to further discuss and

consider potential designations with all

interested parties. Commenters should

be aware that the ‘‘small entity’’

definition FRA adopts here on an

interim basis and the one it ultimately

adopts will determine the entities that

will be considered small for purposes of

Regulatory Flexibility Act analysis, the

Equal Access to Justice Act, and FRA’s

small business enforcement policy and

communication program. However,

whatever ‘‘small entity’’ definition FRA

adopts, FRA will retain the authority to

use different criteria to tailor the

applicability of any regulations it issues

to address appropriately the specific

safety problem at issue. For example,

even if FRA decides to retain the

interim Class III standard for ‘‘small

entity,’’ it may issue a rule that applies

only to railroads with more than a

certain number of annual person/hours

or to all railroads, regardless of size.

III. FRA’s Small Business

Communication and Enforcement

Programs

FRA’s purpose in publishing this

notice and policy statement is to

formally announce and explain its

communication and enforcement

policies concerning small entities in the

railroad industry. FRA is hopeful that

this publication will, aside from

achieving compliance with the SBREFA

requirements, enhance railroad safety in

several ways: the number of small

entities that participate cooperatively in

the safety compliance and enforcement

program will increase; small businesses

will gain a greater understanding of

railroad safety requirements; small

entities will be encouraged to

communicate more freely with agency

personnel to alleviate potential safety

risks before they become hazardous; and

FRA’s understanding of small

operations will improve.

FRA’s small business communication

program has existed for some time, and

continues to grow to meet the needs of

our customers in the railroad industry.

FRA Office of Safety and Office of Chief

Counsel personnel, at the headquarters,

regional and local level, devote a great

deal of attention to the inquiries and

concerns of small entities. FRA’s

program is flexible and responsive to

the particular need expressed. The

agency’s response takes a variety of

forms: verbal and written answers to

questions received, training sessions for

new or existing small businesses on the

substance of railroad safety regulations,

and advice on a particular standard or

interpretation of a standard. Some of the

FRA Regional Administrators have

established programs in which small

entities in the region meet with FRA

regional specialists on a regular basis to

discuss new regulations, persistent

safety concerns, developing technology,

and ongoing compliance issues. FRA

regional offices hold yearly conferences,

in which specific blocks of time are set

aside to meet with small businesses and

hear their concerns. In addition, FRA

has instituted new, innovative programs

that expand our existing communication

policy for small entities. The Railroad

Safety Advisory Committee and

Technical Resolution Committees,

which play an integral role in the

development of railroad safety

regulations and the clarification of

regulatory interpretations, include

representatives of small businesses.
43026 Federal Register / Vol. 62, No. 154 / Monday, August 11, 1997 / Notices

Similarly, FRA’s enforcement

program devotes special attention to

ensuring that the limited financial

resources of small entities are

considered during the enforcement

process. FRA inspectors have and

utilize discretion when determining

whether a civil penalty citation or other

enforcement action should be taken

against a small entity. Staff attorneys in

FRA’s Office of Chief Counsel regularly

assess information provided by a

company concerning the degree to

which fines will impact the viability of

a small business, and the extent to

which a fine may prevent the business

from improving the safety of its

operation. In fact, the federal railroad

safety laws include the requirement that

agency personnel consider a

respondent’s ability to pay in any civil

penalty action taken. Staff attorneys

regularly invite small entities to present

information concerning financial status

and other factors that may result in a

reduction or waiver of penalty

assessments. FRA has instituted a new

enforcement program, the Safety

Assurance and Compliance Program

(SACP), that also benefits small entities,

and it is described in more detail in the

interim policy statement set forth below.

FRA anticipates that when this

interim policy statement becomes final,

it will be codified in the Code of Federal

Regulations as an appendix to 49 CFR

part 209, so that all members of the

public have access to it as needed. The

terms ‘‘small business’’ and ‘‘small

entity’’ have identical meaning for

purposes of this document, and are used

interchangeably throughout.

Comments Requested

FRA invites written comment on the

definition of ‘‘small entity,’’ potential

alternative definitions, and supporting

rationale for suggested alternative

definitions. Please direct all written

comments in triplicate to the Docket

Clerk, FRA, 400 Seventh Street, SW,

Stop 10, Washington, D.C. 20590 before

November 30, 1997.

Federal Railroad Administration

Interim Statement of Agency Policy

Concerning Small Entities

This interim policy statement

explains FRA’s communication and

enforcement policies concerning small

entities subject to the federal railroad

safety laws. These policies have been

developed to take into account the

unique concerns and operations of small

businesses in the administration of the

national railroad safety program, and

will continue to evolve to meet the

needs of our customers in the railroad

industry. For purposes of this policy

statement, Class III railroads, contractors

and hazardous materials shippers

meeting the economic criteria

established for Class III railroads in 49

CFR 1201.1–1, and commuter railroads

that serve populations of 50,000 or less

constitute the class of organizations

considered ‘‘small entities’’ or ‘‘small

businesses.’’

FRA understands that small entities

in the railroad industry have

significantly different characteristics

than large carriers and shippers. FRA

believes that these differences

necessitate careful consideration in

order to ensure that those entities

receive appropriate treatment on

compliance and enforcement matters,

and enhance the safety of railroad

operations. Therefore, FRA has

developed programs to respond to

compliance-related inquiries of small

entities, and to ensure proper handling

of civil penalty and other enforcement

actions against small businesses.

Small Entity Communication Policy

It is FRA’s policy that all agency

personnel respond in a timely and

comprehensive fashion to the inquiries

of small entities concerning rail safety

statutes, safety regulations, and

interpretations of these statutes and

regulations. Also, FRA personnel

provide guidance to small entities, as

needed, in applying the law to specific

facts and situations that arise in the

course of railroad operations. These

agency communications take many

forms, and are tailored to meet the

needs of the requesting party.

FRA inspectors provide training on

the requirements of all railroad safety

statutes and regulations for new and

existing small businesses upon request.

Also, FRA inspectors often provide

impromptu training sessions in the

normal course of their inspection duties.

FRA believes that this sort of

preventive, rather than punitive,

communication greatly enhances

railroad safety. FRA’s Office of Safety

and Office of Chief Counsel regularly

provide verbal and written responses to

questions raised by small entities

concerning the plain meaning of the

railroad safety standards, statutory

requirements, and interpretations of the

law. As required by the Small Business

Regulatory Enforcement and Fairness

Act of 1996 (SBREFA), when FRA issues

a final rule that has a significant impact

on a substantial number of small

entities, FRA will also issue a

compliance guide for small entities

concerning that rule.

It is FRA’s policy to maintain frequent

and open communications with the

national representatives of the primary

small entity associations and to consult

with these organizations before

embarking on new policies that may

impact the interests of small businesses.

In some regions of the country where

the concentration of small entities is

particularly high, FRA Regional

Administrators have established

programs in which all small entities in

the region meet with FRA regional

specialists on a regular basis to discuss

new regulations, persistent safety

concerns, emerging technology, and

compliance issues. Also, FRA regional

offices hold periodic conferences, in

which specific blocks of time are set

aside to meet with small businesses and

hear their concerns.

In addition to these communication

practices, FRA has recently instituted

innovative partnership programs that

expand the extent to which small

entities participate in the development

of policy and process. The Railroad

Safety Advisory Committee (RSAC) has

been established to advise the agency on

the development and revision of

railroad safety standards. The

committee consists of a wide range of

industry representatives, including

organizations that represent the interests

of small business. The small entity

representative groups that sit on the

RSAC may appoint members of their

choice to participate in the development

of new safety standards. This reflects

FRA’s policy that small business

interests must be heard and considered

in the development of new standards to

ensure that FRA does not impose

unnecessary economic burdens, and to

create more effective standards.

Similarly, FRA has established

Technical Resolution Committees for

each railroad safety discipline, which

meet throughout the country to discuss,

refine, and clarify compliance policies

and interpretations of existing safety

standards. These committees generally

include small business representation

and provide another avenue of

communication between FRA and small

entities. Finally, FRA has established a

home page on the Internet and makes

pertinent agency information available

to the public in that medium. FRA’s

internet address is http://

www.fra.dot.gov and any particular

FRA employee can be reached by

entering the following: first name.last

name@fra.dot.gov.

FRA’s longstanding policy of open

communication with small entities is

apparent in these practices. FRA will

make every effort to develop new and

equally responsive communication

procedures as is warranted by new

developments in the railroad industry.
Federal Register / Vol. 62, No. 154 / Monday, August 11, 1997 / Notices 43027

Small Entity Enforcement Policy

FRA has adopted an enforcement

policy that addresses the unique nature

of small entities in the imposition of

civil penalties and resolution of those

assessments. Pursuant to FRA’s

statutory authority and as described in

49 CFR part 209, Appendix A, it is

FRA’s policy to consider a variety of

factors in determining whether to take

enforcement action against persons,

including small entities, who have

violated the safety laws and regulations.

In addition to the seriousness of the

violation and the person’s history of

compliance, FRA inspectors consider

‘‘such other factors as the immediate

circumstances make relevant.’’ In the

context of violations by small entities,

those factors include whether the

violations were made in good faith (e.g.,

based on an honest misunderstanding of

the law) and whether the small entity

has moved quickly and thoroughly to

remedy the violation(s). In general, the

presence of both good faith and prompt

remedial action militates against taking

a civil penalty action, especially if the

violations are isolated events. On the

other hand, violations involving willful

actions and/or posing serious health,

safety, or environmental threats should

ordinarily result in enforcement actions,

regardless of the entity’s size.

Once FRA has assessed a civil

penalty, it collects at least the statutory

minimum amount ($250 for hazardous

materials violations and $500 for all

others) unless it must terminate the

claim for some reason. However, civil

penalties may be reduced from the

initial assessment based on the

consideration of a variety of criteria

found in the railroad safety statutes and

SBREFA: the severity of the safety,

health or environmental risk presented;

the existence of alternative methods of

eliminating the safety hazard; the

entity’s culpability; the entity’s

compliance history; the entity’s ability

to pay the assessment; the impacts an

assessment might exact on the entity’s

continued business; and evidence that

the entity acted in good faith. FRA staff

attorneys regularly invite small entities

to present any information related to

these factors, and reduce civil penalty

assessments based on the value and

integrity of the information presented.

Staff attorneys conduct conference calls

or meet with small entities to discuss

pending violations, and explain the

merits of any defenses or mitigating

factors presented that may have resulted

or failed to result in penalty reductions.

Among the ‘‘other factors’’ FRA

considers at this stage is the promptness

and thoroughness of the entity’s

remedial action to correct the violations

and prevent a recurrence. Small entities

should be sure to address these factors

in communications with FRA

concerning civil penalty cases. Such

long-term solutions to compliance

problems will be given great weight in

FRA’s determinations of a final

settlement offer.

Finally, under FRA’s Safety

Assurance and Compliance Program

(SACP), FRA identifies systemic safety

hazards that continue to occur in a

carrier or shipper operation, and in

cooperation with the subject business,

develops an improvement plan to

eliminate those safety concerns.

Typically, the plan provides small

entities with a reasonable time frame in

which to make improvements without

the threat of civil penalty. If FRA

determines that the entity has failed to

comply with the improvement plan,

however, enforcement action is

initiated.

FRA’s small entity enforcement policy

is flexible and comprehensive. FRA’s

first priority in its compliance and

enforcement activities is public and

employee safety. However, FRA is

obtaining compliance and enhancing

safety with reasoned, fair methods that

do not inflict undue hardship on small

entities.

Submitted in Washington, DC, on August

6, 1997.

Donald M. Itzkoff,

Deputy Administrator.

[FR Doc. 97–21155 Filed 8–8–97; 8:45 am]

BILLING CODE 4910–06–P

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

Environmental Impact Statement on

Southwest Corridor Transit

Improvements in Cleveland, Ohio

AGENCY: Federal Transit Administration,

DOT.

ACTION: Notice of intent to prepare an

environmental impact statement (EIS).

SUMMARY: The Federal Transit

Administration (FTA) and the Greater

Cleveland Regional Transit Authority

(GCRTA) are undertaking the

preparation of an Environmental Impact

Statement (EIS) in accordance with the

National Environmental Policy Act

(NEPA), for transit improvements. The

local agency will ensure that the EIS

also satisfies requirements established

by the Ohio Environmental Protection

Agency. The Environmental Impact

Statement will evaluate alternative rail

transit alignments in the corridor

between the GCRTA Red Lines current

terminus at Cleveland Hopkins

International Airport, to the

International Exposition (I–X) Center

and the Central Business District (CBD)

in Berea, Ohio. In addition, the EIS will

evaluate Transportation System

Management (TSM) improvements and

a No-Build alternative and any new

alternatives generated through the

scoping process. Scoping will be

accomplished through correspondence

with interested persons, organizations,

and federal, state, and local agencies

and through three public meetings. See

SUPPLEMENTARY INFORMATION below for

details.

DATES: Comment Due Date: Written

comments on the scope of the

alternative alignments and impacts to be

considered should be sent to the GCRTA

by Saturday, September 20, 1997.

Scoping Meetings: The public scoping

meetings will be held on Monday,

September 8, 1997 between 3:00 P.M.

and 6:00 P.M. at the Frank J. Lausche

State Office Building; Tuesday,

September 9, 1997 between 3:00 P.M.

and 9:00 P.M. at Berea City Hall and

Wednesday, September 10, 1997

between 3:00 P.M. and 9:00 P.M. at

Brook Park City Hall. See ADDRESSES

below. People with special needs

should contact Edward Taylor of the

GCRTA at (216) 566–5020. A TDD

number is available (216) 781–4271. The

buildings are accessible to people with

disabilities.

FOR FURTHER INFORMATION CONTACT: Mr.

Paul Fish, Director, Office of Planning

and Program Development; Federal

Transit Administration, 55 East Monroe

Street, Suite 1415; Chicago, Illinois

60603 (312) 353–2865.

ADDRESSES: Written comments on

project scope should be sent to Mr.

Edward Taylor, Deputy Project Manager,

Greater Cleveland Regional Transit

Authority, 615 Superior Avenue, W,

Cleveland, Ohio 44113. Scoping

Meetings will be held at the following

locations:

1. Frank J. Lausche State Office

Building, 615 Superior Avenue, W,

Cleveland, Ohio 44113

2. City Hall, City of Berea, 11 Berea

Commons, Berea, Ohio 44017

3. City Hall, City of Brook Park, 6161

Engle Road, Brook Park, Ohio 44142

SUPPLEMENTARY INFORMATION:

I. Scoping

FTA and the GCRTA invite interested

individuals, organizations, and federal,

state and local agencies to participate in

defining the alternatives to be evaluated

in the EIS and identifying any

significant social, economic, or