Federal Register / Vol. 89, No. 209 / Tuesday, October 29, 2024 / Proposed Rules 85895 

1The Secretary of Transportation is authorized to 

issue such waivers or suspensions and the Secretary 

has delegated that authority to FRA. 49 U.S.C. 

20103(d)(1) and 49 CFR 1.89(a). 

2 49 CFR 211.41(a). 

3 49 CFR part 211, subpart C (§§ 211.41 through 

211.45). 

4See 49 CFR 211.9. 

5https://railroads.dot.gov/elibrary/guidancesubmitting-requests-waivers-block-signalapplications-and-other-approval-requests; 88 FR 

1448 (Jan. 10, 2023). 

records maintained in this system. To 

the extent that copies of exempt records 

from those other systems of records are 

maintained in this system, the DoD 

claims the same exemptions for the 

records from those other systems that 

are entered into this system, as claimed 

for the prior system(s) of which they are 

a part, provided the reason for the 

exemption remains valid and necessary. 

Dated: October 23, 2024. 

Aaron T. Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2024–25035 Filed 10–28–24; 8:45 am] 

BILLING CODE 6001–FR–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 211 

[Docket No. FRA–2024–0033] 

RIN 2130–AC97 

Federal Railroad Administration’s 

Procedures for Waivers and SafetyRelated Proceedings 

AGENCY: Federal Railroad 

Administration (FRA), U.S. Department 

of Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This proposed rule would 

update FRA’s procedures for waivers 

and safety-related proceedings to define 

the two components of the statutory 

waiver and suspension standard, ‘‘in the 

public interest’’ and ‘‘consistent with 

railroad safety.’’ By defining these 

terms, FRA intends to clarify the 

standard the agency will apply when 

evaluating petitions for regulatory relief. 

FRA also proposes to require petitions 

for relief to include evidence of 

meaningful consultation with 

appropriate stakeholders. Additionally, 

FRA proposes to make minor updates to 

agency rules of practice. 

DATES: Written comments on this 

proposed rule must be received on or 

before December 30, 2024. Comments 

received after that date will be 

considered to the extent possible 

without incurring additional expense or 

delay. 

ADDRESSES: 

Comments: Comments related to 

Docket No. FRA–2024–0033 may be 

submitted by going to 

www.regulations.gov and following the 

online instructions for submitting 

comments. 

Instructions: All submissions received 

must include the agency name and 

docket number or Regulatory 

Identification Number (RIN) for this 

rulemaking. All comments received will 

be posted without change to 

www.regulations.gov; this includes any 

personal information. Please see the 

Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for Privacy Act 

information related to any submitted 

comments or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to 

www.regulations.gov and follow the 

online instructions for accessing the 

docket. 

FOR FURTHER INFORMATION CONTACT: 

Veronica Chittim, Senior Attorney, 

Office of the Chief Counsel, at 

veronica.chittim@dot.gov, 202–480– 

3410; or Lucinda Henriksen, Senior 

Advisor, Office of Railroad Safety, at 

lucinda.henriksen@dot.gov, 202–657– 

2842. 

SUPPLEMENTARY INFORMATION: 

I. Background 

FRA has broad discretionary authority 

to waive or suspend the requirement to 

comply with any rule, regulation, or 

order upon a finding that doing so is ‘‘in 

the public interest and consistent with 

railroad safety.’’ 49 U.S.C. 20103(d).1

Within FRA, decisional authority for 

waivers rests with FRA’s Railroad Safety 

Board (Board).2 FRA’s Rules of Practice, 

49 CFR part 211, set forth the general 

requirements for petitions to the Board 

and the general outline of the Board’s 

processes.3 The burden of proving the 

request is justified rests with the 

petitioner.4

In January 2023, FRA published 

guidance pertaining to waiver 

procedures and process titled Guidance 

on Submitting Requests for Waivers, 

Block Signal Applications, and Other 

Approval Requests to FRA (Guidance).5

The Guidance outlined best practices for 

petitioners to use when developing and 

submitting waiver, suspension, and 

other approval requests, and best 

practices impacted stakeholders (e.g., 

the public, railroad employees, and 

labor organizations) may use to ensure 

their views, concerns, and comments 

are thoroughly considered throughout 

the process. This proposal would 

provide additional detail on portions of 

the guidance, and make certain 

recommendations therein mandatory, 

such as the recommended consultation 

prior to filing of a petition. 

In this rulemaking, FRA is proposing 

to update its procedures for waivers and 

safety-related proceedings in 49 CFR 

part 211 to clarify the standard to be 

applied by FRA when deciding whether 

to grant a request for regulatory relief. 

Specifically, FRA is proposing to define 

both the ‘‘in the public interest’’ and 

‘‘consistent with railroad safety’’ 

components of the statutory standard in 

49 U.S.C. 20103(d), for purposes of 

evaluating waiver or suspension 

requests. Additionally, FRA is 

proposing to require petitions for 

regulatory relief to include evidence of 

meaningful consultation with 

stakeholders. 

II. Section-by-Section Analysis 

Part 211 

§ 211.1 General 

FRA proposes to make minor editorial 

amendments to § 211.1(a) to remove 

outdated language regarding the Federal 

Railroad Safety Act (concerning 

proceedings initiated after 1976). 

Further, FRA proposes to replace the 

obsolete statutory citation (45 U.S.C. 

432) for emergency orders with the 

current citation, 49 U.S.C. 20104. FRA 

also proposes to clarify that a 

proceeding will be deemed to be 

initiated and the time period for its 

disposition will begin on the date a 

petition or application that complies 

with the requirements of this chapter is 

confirmed to be complete (not merely 

the date it is received) by FRA. 

FRA also proposes to make technical 

amendments to the definitions of 

‘‘Safety Act,’’ ‘‘Docket Clerk,’’ and 

‘‘Railroad Safety Board.’’ Specifically, in 

the definition of ‘‘Safety Act’’ in 

§ 211.1(b)(3), FRA proposes to update 

the citation (45 U.S.C. 421 et seq.) to 49 

U.S.C. ch. 201 et seq., as the existing 

citation is obsolete. FRA proposes to 

add a cross-reference in § 211.1(a) to the 

proposed updated definition of ‘‘Safety 

Act’’ in § 211.1(b)(3). In the definition of 

‘‘Docket Clerk’’ in § 211.1(b)(4), FRA 

proposes to (1) remove the reference to 

the ‘‘Office of Chief Counsel Docket 

Clerk,’’ as this position no longer exists 

at FRA, and (2) replace the physical 

address for the DOT Docket Clerk with 

the website www.regulations.gov. 

Within the definition of ‘‘Railroad 

Safety Board’’ in § 211.1(b)(5), FRA 

proposes to insert the word ‘‘Railroad’’ 


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6https://www.transportation.gov/priorities/ 

transformation/us-dot-innovation-principles. 

7https://www.transportation.gov/priorities/ 

transformation/us-dot-innovation-principles. 

8FRA has traditionally specified the membership 

of test committees in the conditions to the waiver, 

if applicable, ensuring that all relevant stakeholders 

are represented. Test committee membership may 

include, for example, representatives from 

equipment manufacturers, affected labor 

representatives, FRA personnel, railroad 

representatives, and Association of American 

Railroads committee members, etc. 

before ‘‘Safety’’ into the outdated term 

‘‘Office of Safety.’’ 

FRA proposes to amend § 211.1(b) to 

add specific definitions of ‘‘in the 

public interest’’ and ‘‘consistent with 

railroad safety’’ for purposes of this part. 

FRA has long interpreted the standard 

in 49 U.S.C. 20103(d)(1) of ‘‘in the 

public interest and consistent with 

railroad safety’’ as a standard focused on 

safety, including the safety of rail 

operations and those directly involved 

in those operations, as well as the safety 

and well-being of the public at large. 

However, neither 49 U.S.C. 20103 nor 

49 CFR part 211 defines ‘‘in the public 

interest and consistent with railroad 

safety.’’ Thus, in § 211.1(b)(6) and (b)(7), 

FRA proposes to add definitions of ‘‘in 

the public interest’’ and ‘‘consistent 

with railroad safety’’ to clarify the 

standard and provide transparency and 

consistency as to how FRA will evaluate 

whether a petition meets that standard. 

Overall, via the proposed definitions 

in § 211.1(b)(6) and (7), FRA expects 

requests for waivers, suspensions, and 

other safety-related proceedings for 

regulatory relief to maintain or improve 

railroad safety and to align with one or 

more of DOT’s priorities and innovation 

principles or other public interest 

factors.6 DOT’s first innovation 

principle, to ‘‘Serve our policy 

priorities,’’ includes a focus ‘‘around 

creating high quality jobs, achieving 

racial equity and increasing opportunity 

for all Americans, and tackling the 

climate crisis’’ to drive innovation. 

DOT’s second innovation principle, 

‘‘Help America win the 21st century,’’ 

prioritizes future proofing infrastructure 

and also bringing legacy systems into 

the digital age and enabling adaptability 

and resiliency. Many FRA regulations 

were established prior to the digital age, 

providing an opportunity for future 

requests to show how certain practices 

can be updated and adapted 

appropriately consistent with this 

principle. DOT’s third innovation 

principle, ‘‘Support workers,’’ involves 

empowering workers on many levels, 

including expanding skills and training, 

as well as ensuring workers have a seat 

at the table to shape innovation. DOT’s 

fourth innovation principle, ‘‘Allow for 

experimentation and learn from 

failure,’’ supports open data and 

transparency and the ability to learn 

from experimentation and failures. 

DOT’s fifth innovation principle, 

‘‘Provide opportunities to collaborate,’’ 

strives for an outcomes-based approach 

that is technology neutral, consistent 

with FRA’s performance-based 

regulations. This principle embraces 

public private partnerships that foster 

innovation and protect the interests of 

the public, workers, and communities in 

a technology-neutral manner. Finally, 

DOT’s sixth innovation principle, ‘‘Be 

flexible and adapt as technology 

changes,’’ also reflects performancebased regulations and interoperability, 

and the need for a collaborative 

approach across transportation modes. 

For purposes of this part, in 

§ 211.1(b)(7), FRA proposes to define 

‘‘consistent with railroad safety’’ to 

mean the proposal is ‘‘at least as safe as 

or safer than the status quo (i.e., without 

the proposed relief).’’ If a proposal 

would improve railroad safety and/or 

remove certain railroad operational 

risks, the prong ‘‘consistent with 

railroad safety’’ would be satisfied as 

proposed here. At a minimum, FRA 

proposes that a petition must document 

and provide associated qualitative or 

quantitative analysis that demonstrates 

that with the regulatory relief, railroad 

operations would be at least as safe as 

they would have been without the relief. 

Under no circumstances could this 

standard be met if the safety provided 

under the applicable regulations is not 

maintained or is reduced. Additionally, 

consistent with DOT’s policy priorities, 

‘‘innovations should reduce deaths and 

serious injuries on our Nation’s 

transportation network, while 

committing to the highest standards of 

safety across technologies.’’ 7 Thus, in 

any petition seeking regulatory relief, 

petitioners should include safety 

analysis and any data demonstrating 

how the request aligns with the 

proposed definition of ‘‘consistent with 

railroad safety’’ in § 211.1(b)(7). 

Generally, FRA expects that a petition 

that would reduce the level of existing 

required human visual inspections or 

that would not meet current FRA 

requirements would not be consistent 

with railroad safety under the proposed 

§ 211.1(b)(7). Thus, to demonstrate that 

a petition is consistent with railroad 

safety, the petition must show that the 

proposed process or technology will 

overcome that expected reduction in 

safety by being as safe or safer than the 

existing regulation would require. 

For purposes of this part and for 

understanding the statutory standard, in 

§ 211.1(b)(6), FRA proposes to define 

‘‘in the public interest’’ to mean ‘‘the 

proposed request demonstrates positive 

factors including, but not limited to, 

empowering workers, ensuring equity, 

protecting the environment, creating 

robust infrastructure, enabling 

adaptability and resiliency, bringing 

legacy systems up to current standards, 

allowing for experimentation consistent 

with railroad safety, providing 

opportunities to collaborate, ensuring 

interoperability integration across 

transportation modes, and the wellbeing of the public at large.’’ FRA 

proposes that ‘‘in the public interest’’ 

signifies not only how a proposal for 

regulatory relief may improve railroad 

operations, but also how the request 

may positively affect relevant 

stakeholders, including workers and 

communities. FRA notes that a request 

demonstrating any of these factors in the 

proposed definition may be seen to be 

‘‘in the public interest,’’ because the 

proposal would align with one or more 

of DOT’s priorities and innovation 

principles. 

To reflect whether the request is ‘‘in 

the public interest’’ as proposed in 

§ 211.1(b)(6), FRA notes that petitioners 

should address these principles directly 

in their petitions. For example, the 

petition could explain how the proposal 

would reduce waste, re-use or recycle 

certain inputs, or reduce emissions, 

demonstrating that the proposal is ‘‘in 

the public interest.’’ Similarly, 

consistent with the principle to ‘‘Help 

America win the 21st century,’’ a 

petitioner could demonstrate how a 

request may create robust infrastructure, 

enable adaptability and resiliency, and 

bring legacy systems up to current 

standards. Likewise, the petitioner 

could show how the request would 

allow for experimentation to enable 

learning from both successes and 

failures (while still being consistent 

with railroad safety). The request could 

demonstrate how the petitioner has 

provided (and will continue to provide) 

opportunities to collaborate with 

workers and local communities. 

Moreover, such requests could show 

how the proposal would empower 

workers, such as through expanding 

access to skills, training, and/or the 

choice of a union. In line with these 

principles, FRA expects to continue its 

successful practice of encouraging 

stakeholder engagement through 

establishing test committees 8 as a 

condition to granting regulatory relief, 

when appropriate. Historically, FRA 

has, in certain instances, required the 

establishment of a test committee as a 


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9https://railroads.dot.gov/about-fra/ 

communications/newsroom/press-releases/usdotsecretary-buttigieg-calls-rail-industry-0 (In a 

February 21, 2023, press release, Secretary Buttigieg 

called on the railroad industry to ‘‘[d]eploy new 

inspection technologies without seeking permission 

to abandon human inspections. . . . We need both 

[technology and human oversight] to keep our 

nation’s railroads safe.’’). 

condition of regulatory relief related to 

the use of technology or a new 

operational process in the railroad 

industry. As noted in footnote 8, a test 

committee typically involves a small 

group of diverse stakeholders that meet 

periodically to review safety data and 

consider related challenges and benefits 

of the relief. To show that a proposal is 

‘‘in the public interest,’’ FRA proposes 

that a petitioner could provide evidence 

that the regulatory relief requested 

would not eliminate jobs or eliminate 

required visual inspections, but would 

add additional positions, or improve the 

existing positions. The petitioner could 

identify opportunities for 

interoperability among innovations and 

foster cross-modal integration, if 

possible. Accordingly, in any petition 

seeking regulatory relief, petitioners 

should demonstrate how the request 

aligns with the proposed definition of 

‘‘in the public interest’’ in § 211.1(b)(6). 

By incorporating definitions for ‘‘in 

the public interest’’ and ‘‘consistent 

with railroad safety’’ into FRA’s Rules of 

Practice, FRA intends to ensure 

consistency in how requests are 

evaluated going forward. For example, 

when reviewing whether a waiver 

request is ‘‘in the public interest and 

consistent with railroad safety,’’ the 

Board would assess the request’s 

commitment to both safety and the 

public interest. A petition showing only 

that a proposal may improve the 

efficiency of railroad operations or 

reduce costs will likely not meet the 

standard in the proposed definition of 

‘‘in the public interest’’ without a 

separate showing that the request meets 

additional public interest factors as 

proposed in § 211.1(b)(6). The petitioner 

should be able to show there is a benefit 

to stakeholders, and, as described 

below, that the stakeholders had been 

consulted with before filing to ensure 

any potential concerns are addressed. 

Further, if the request for regulatory 

relief would reduce the number of 

inspections being performed, the 

petition may not meet the ‘‘in the public 

interest’’ definition proposed here. In 

many cases, technology can be layered 

on top of the existing regulatory 

framework without necessitating a 

reduction in human inspections 

currently being performed or relief from 

Federal regulations.9 Thus, if a 

petitioner proposes to incorporate a new 

technology or approach, but also 

requests relief to permit a reduction in 

the number of inspections, to 

demonstrate the request is ‘‘in the 

public interest,’’ the request would need 

to show both that the relief is necessary 

and that other factors outweigh the 

impacts of reduced inspections in the 

context of potential negative impacts to 

the ‘‘public interest.’’ 

FRA also notes that the same statutory 

standard applies for initial requests for 

relief and renewal or modification 

requests. Generally, waivers or other 

approvals for regulatory relief are time 

limited and may be geographically 

limited, and renewals are discretionary, 

which means renewals and expansions 

of a waiver’s geographic scope are never 

automatic or guaranteed. Further, 

consistent with 49 U.S.C. 20103(d)(4), 

FRA reviews waivers or suspensions 

that have been in continuous effect for 

a six-year period and determines 

whether the waiver or suspension 

should be terminated, renewed, or 

incorporated into the regulations. 

Petitioners seeking to renew or expand 

an existing grant of relief should include 

in the application evidence of 

Petitioners’ compliance with the 

existing conditions of the relief (if any), 

and how the waiver, suspension, or 

other approval for relief has satisfied, 

and will continue to satisfy, the 

proposed standard of ‘‘in the public 

interest and consistent with railroad 

safety.’’ Additionally, FRA proposes (in 

§ 211.9) to require petitions for renewal 

to contain specific data on the overall 

effectiveness of the waiver, suspension, 

or other grant of relief. 

Upon review of a petition for 

regulatory relief, FRA would determine 

whether the factors in proposed 

§ 211.1(b)(6) and (b)(7) have been 

addressed and meet the standard of ‘‘in 

the public interest and consistent with 

railroad safety.’’ If the factors have not 

been addressed, FRA may dismiss the 

petition, primarily because FRA would 

be unable to evaluate whether the 

request meets the standard of ‘‘in the 

public interest and consistent with 

railroad safety.’’ If the petition addresses 

the factors proposed in § 211.1(b)(6) and 

(b)(7), FRA would then consider 

whether the requested regulatory relief 

satisfies the ‘‘in the public interest’’ and 

‘‘consistent with railroad safety’’ 

standards as defined and would address 

these requirements in any decision 

letter issued. 

Given this proposal, which would 

define and clarify the ‘‘public interest’’ 

component of the statutory standard, 

FRA seeks public comment on whether 

additional changes to the existing 

procedures for waivers, suspensions, 

and other safety-related proceedings for 

regulatory relief are necessary. 

FRA intends the new definitions 

proposed in § 211.1(b) to be applicable 

for the evaluation of all waiver and 

suspension petitions filed pursuant to 

49 U.S.C. 20103(d). Historically, FRA 

has applied the standard of ‘‘consistent 

with railroad safety’’ to FRA’s review of 

block signal applications (49 U.S.C. 

20502; 49 CFR part 235). FRA does not 

intend to revise this historical practice, 

but intends to apply the definition of 

‘‘consistent with railroad safety,’’ as 

proposed in § 211.1(b)(7). 

§ 211.7 Filing Requirements 

In paragraph (b)(1), FRA proposes to 

remove the reference to the ‘‘FRA 

Docket Clerk,’’ and replace with ‘‘FRA 

via email to FRAWaivers@dot.gov.’’ The 

position of ‘‘FRA Docket Clerk’’ no 

longer exists. FRA proposes to remove 

the reference in that section to 

‘‘grandfathering,’’ and simply refer to 

‘‘petitions for approval’’ under 49 CFR 

238.203. Finally, FRA proposes 

modifying the phrase that the 

acknowledgment shall state ‘‘the date 

the petition or application was 

received’’ to be ‘‘the date FRA 

determined the petition or application 

was complete.’’ 

§ 211.9 Content of Waiver and Other 

Safety-Related Proceeding Petitions 

First, FRA proposes to make minor 

editorial amendments to § 211.9(a), (b), 

and (c) to remove the semi-colons at the 

end of each paragraph and account for 

the new proposed paragraphs (d) and 

(e). FRA also proposes to rename § 211.9 

and revise the introductory language to 

reflect a broader application to waivers, 

and other safety-related proceedings 

seeking regulatory relief, such as block 

signal applications and requests for test 

programs under § 211.51 and remove 

the application to rulemakings. 

Specifically, FRA proposes to apply the 

new language to ‘‘each petition for 

waiver or other safety-related 

proceeding for regulatory relief.’’ FRA 

proposes to remove rulemaking 

petitions from the applicability of 

§ 211.9 and add a new § 211.10 

dedicated to the content requirements of 

rulemaking petitions. Additionally, in 

§ 211.9(c), FRA proposes removing the 

language ‘‘each evaluation must include 

an estimate of resulting costs to the 

private sector, to consumers, and to 

Federal, State, and local governments as 

well as an evaluation of resulting 

benefits, quantified to the extent 

practicable.’’ While petitions for relief 

must evaluate the impacts of a proposed 

waiver, the existing language for a 


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10https://railroads.dot.gov/elibrary/guidancesubmitting-requests-waivers-block-signalapplications-and-other-approval-requests. 

11 Guidance on Railroad/Employee Consultation 

Requirements in 49 CFR parts 270 and 271, https:// 

railroads.dot.gov/elibrary/guidancerailroademployee-consultation-requirements-49-cfrparts-270-and-271. 

detailed cost benefit analysis is more 

applicable to petitions for rulemaking, 

and thus FRA proposes moving this 

language into § 211.10(c) pertaining to 

rulemakings. 

Second, FRA proposes to amend 

§ 211.9 to add a new paragraph (d) to 

require that petitioners must provide 

evidence that they have consulted with 

applicable stakeholders prior to 

submission of the application to FRA for 

consideration. In this proposal, any 

petition must contain documentation, 

such as a certification statement by the 

petitioner, with accompanying 

documentation demonstrating that the 

petitioner engaged in meaningful 

consultation with stakeholders. 

Specifically, FRA proposes § 211.9(d) to 

state that petitions must demonstrate: 

‘‘meaningful good faith consultation 

with potentially affected stakeholders, 

including applicable rail labor 

stakeholders, on the proposed request 

for relief, prior to submission to FRA for 

evaluation and processing.’’ Should 

FRA finalize this proposed language, a 

petition that fails to document 

meaningful consultation will likely be 

denied as incomplete. While meaningful 

consultation will generally entail 

consultation with rail labor 

stakeholders, affected stakeholders for a 

more localized request would likely 

include communities along the 

railroad’s right-of-way. If a particular 

community would be affected, FRA 

expects the railroad to reach out to the 

community proactively before filing the 

request with FRA. If there are no 

specific localities affected, FRA 

otherwise expects the public to be 

informed through FRA’s publication of 

the notice of the request in the Federal 

Register. The public at-large would then 

have the opportunity to comment on 

that notice and collaborate on the 

request. 

FRA has found that incoming 

petitions frequently do not address the 

potential impacts of the request on 

stakeholders other than the petitioner. 

This too often leads to extensive efforts 

on the part of both FRA and individual 

petitioners to work with these 

stakeholders to understand and address 

their concerns. FRA discussed this issue 

in its January 2023 Guidance, 

recommending that petitioners consult 

and coordinate with stakeholders prior 

to filing.10 This proposed rule would 

streamline the process by requiring 

petitioners to consult and coordinate 

with potentially affected stakeholders 

prior to filing a petition with FRA, and 

then documenting these efforts in their 

petition. For example, virtually every 

request from a railroad for a waiver from 

a safety regulation will impact at least 

some of that railroad’s employees. 

Accordingly, prior to filing a petition 

with FRA, this proposal would require 

a railroad to meaningfully consult with 

potentially impacted employees, and 

the local and general chairmen as well 

as the State and national legislative 

levels of any labor organizations that 

represent them, and document the 

extent and outcome of its consultation 

in any petition. 

Meaningful consultation prior to 

submission would serve to educate 

stakeholders of the proposal and reduce 

the likelihood of any misunderstandings 

as to the requested relief. FRA expects 

petitioners to engage stakeholders in 

discussions about the relief proposed 

and genuinely seek stakeholders’ input. 

FRA expects that consultation will be 

substantive, and not simply serve to 

check a box that stakeholders were 

informed of a proposal, as that would 

not constitute meaningful consultation. 

Meaningful consultation involves good 

faith and the best efforts of railroads to 

engage stakeholders in discussions 

about the proposed request for relief, the 

relief sought, and seek substantive 

input.11 The intent of consultation is to 

engage with affected stakeholders at all 

stages of the proposal’s development 

and then implementation of the relief, if 

granted. Ideally, railroads would 

consider their employees, and 

organization(s) representing those 

employees, as partners throughout the 

process rather than as reviewers of a 

finished product. Meaningful 

consultation should involve 

coordinating, gathering, and discussing 

employee and railroad input and 

considering feedback on the 

development of the proposed request. 

To show that a railroad sought 

feedback from applicable stakeholders, a 

petition could include a statement with 

a detailed description of the process the 

petitioner used to consult with 

stakeholders as well as written 

correspondence, identify areas of 

agreement or non-agreement with the 

proposal, and include a service list to 

show which parties were consulted. 

Additionally, FRA expects that 

stakeholders would provide factual, 

well-supported feedback that 

demonstrates such meaningful 

collaboration. 

Petitions that demonstrate consensus 

has been achieved with potentially 

affected stakeholders, including 

applicable rail labor organizations, 

would likely provide evidence of one 

factor that the application is ‘‘in the 

public interest.’’ 

Third, as discussed above, FRA 

proposes to add a new paragraph (e) to 

require that renewal and expansion 

petitions contain data on the overall 

effectiveness of the existing relief. While 

§ 211.9(c) requires petitions to contain 

sufficient information to support the 

action sought, including an evaluation 

of anticipated impacts of the action 

sought, FRA notes that a renewal or 

expansion petition should also be able 

to demonstrate how effective the waiver 

or other grant of relief has been prior to 

the request for renewal or expansion. To 

assist petitioners in providing data on 

the effectiveness of a waiver or other 

relief, FRA proposes revising the last 

sentence in § 211.9(c) to require each 

petition pertaining to safety regulations 

to ‘‘contain relevant safety data and 

analysis to demonstrate the petition is 

in the public interest and consistent 

with railroad safety, and outline the 

metrics to be used to determine 

effectiveness of the waiver or other 

relief, if granted.’’ Given the petitioner’s 

experience implementing and using the 

waiver or other relief, a petitioner 

should have specific data to support the 

renewal or expansion request. This may 

include how railroad safety has 

improved because of the waiver or other 

grant of relief (e.g., the number of 

defects decreased, or a reduction in the 

risk of an infrequent, but catastrophic 

event), and how the public interest has 

been served. In § 211.9(e)(1), FRA 

proposes to make this expectation to 

provide data of the relief’s effectiveness 

a requirement for all renewal and 

expansion petitions. Moreover, in 

§ 211.9(e)(2), FRA proposes to require 

that a renewal or expansion petition 

must also demonstrate compliance with 

any conditions that were included in 

the previous grant of relief. Finally, in 

§ 211.9(e)(3), FRA proposes to require 

renewal and expansion requests for 

relief to ‘‘demonstrate how the waiver, 

suspension, or other approval for relief 

is, and will continue to be, in the public 

interest and consistent with railroad 

safety.’’ 

§ 211.10 Content of Rulemaking 

Petitions 

FRA proposes to establish a new 

provision, § 211.10, to outline content 

requirements for rulemaking petitions. 

As discussed above, FRA proposes to 

remove rulemaking petitions from 

§ 211.9, and create a standalone § 211.10 


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12 88 FR 21879 (Apr. 6, 2023) located at https:// 

www.federalregister.gov/documents/2023/04/11/ 

2023-07760/modernizing-regulatory-review. 

to address rulemaking content 

requirements. The requirements 

proposed in § 211.10 are substantively 

similar to the existing § 211.9. 

Specifically, FRA proposes to require 

each petition for rulemaking to (a) ‘‘set 

forth the text or substance of the rule, 

regulation, standard, or amendment 

proposed, or specify the rule, regulation, 

or standard that the petitioner seeks to 

have repealed’’ and (b) ‘‘explain the 

interest of the petitioner, and the need 

for the action requested.’’ In proposed 

(c), each petition for rulemaking must 

‘‘contain sufficient information to 

support the action sought including an 

evaluation of anticipated impacts of the 

action sought; each evaluation must 

include an estimate of resulting costs to 

the private sector, to consumers, and to 

Federal, State, and local governments as 

well as an evaluation of resulting 

benefits, quantified to the extent 

practicable.’’ In this manner, petitions 

for rulemaking would be required to 

evaluate the costs and benefits of the 

proposal. 

§ 211.11 Processing of Petitions for 

Rulemaking 

FRA proposes updating the references 

in this provision from § 211.9 to 

§ 211.10, to reflect the proposed 

bifurcation of petitions for waivers and 

petitions for rulemaking content 

requirements. In § 211.11(b) and (c), 

FRA proposes replacing references to 

the pronoun ‘‘he’’ with ‘‘the 

Administrator.’’ In § 211.11(d), FRA 

proposes to change the word ‘‘mailed’’ 

to ‘‘sent’’ to reflect the possibility of 

electronic transmittal of the notice of 

grant or denial. 

§ 211.13 Initiation and Completion of 

Rulemaking Proceedings 

FRA proposes updating the reference 

in this provision from § 211.9 to 

§ 211.10, to reflect the proposed 

bifurcation of petitions for waivers and 

petitions for rulemaking content 

requirements. FRA proposes replacing 

references to the pronouns ‘‘his’’ and 

‘‘he’’ with ‘‘the Administrator’s’’ and 

‘‘the Administrator.’’ 

§ 211.41 Processing of Petitions for 

Waiver of Safety Rules 

FRA proposes to update the language 

in § 211.41(b) to include an explicit 

standard comment period for notice of 

a waiver in the Federal Register to be 

60 days. Moreover, FRA suggests 

removing the introductory language, 

‘‘[i]f required by statute or the 

Administrator or the Railroad Safety 

Board deems it desirable.’’ Because 

publication of a notice is required for all 

such waiver petitions (see 49 U.S.C. 

20103(d)(2)(C)), FRA finds this 

introductory language is unnecessary. 

The existing provision is silent on the 

length of an appropriate period of 

public comment; however, FRA has 

customarily used 60 days as a matter of 

practice. FRA also proposes to specify 

that any deviation from the proposed 

standard 60-day comment period will be 

subject to the Administrator’s approval. 

§ 211.43 Processing of Other Waiver 

Petitions 

FRA proposes to update the language 

in § 211.43(b) to mirror the changes as 

discussed for § 211.41(b). 

III. Regulatory Impact and Notices 

A. Executive Order 12866 as Amended 

by Executive Order 14094 and DOT 

Regulatory Policies and Procedures 

This proposed rule is a nonsignificant regulatory action within the 

meaning of Executive Order (E.O.) 

12866 as amended by E.O. 14094, 

Modernizing Regulatory Review 12 and 

DOT’s Order, ‘‘Rulemaking and 

Guidance Procedures,’’ DOT 2100.6A 

(June 7, 2021). FRA concluded that this 

proposed rule would impart an 

annualized burden of approximately 

$78,000 per year, for an estimated 70 

waiver petitions annually, or about 

$547,000 present value at 7 percent over 

10 years. This estimate assumes an 

equal number of waiver consultations 

that take 1 hour and those that may take 

4 hours, including administrative time 

of about 25 percent. 

TABLE III–1—SUMMARY OF COSTS AND BENEFITS OVER THE 10-YEAR PERIOD

[2023 Dollars] 

Impact Undiscounted * PV 7% PV 3% PV 2% ** Annualized 

7%, 3%, 2% 

Data Analysis and Metrics ................................................... $62,392 $43,821 $53,221 $56,044 $6,239 

Consultation and Documentation ......................................... 676,529 475,166 577,093 607,698 67,653 

Waiver Renewal Effectiveness and Conditions Compliance 40,109 28,171 34,214 36,028 4,011 

Total Costs .................................................................... 779,030 547,158 664,528 699,770 77,903 

FRA Cost ...................................................................... Minimal overall change from baseline. Potentially more time to review additional 

waiver information may be offset by expected better-organized information explicitly 

addressing NPRM requirements. 

Qualitative Benefit ......................................................... In general, addressing incomplete information and facilitating affected stakeholder 

input expected to better meet statutory standards of ‘‘in the public interest’’ and 

‘‘consistent with railroad safety.’’ 

* PV = Present Value. 

** Because the schedule of costs by year are the same, the annualized values are the same. 

Figures in tables may not sum due to rounding. 


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13 88 FR 1448 (Jan. 10, 2023). 14https://rsac.fra.dot.gov/. 

Overall, FRA expects this rule will 

lead to higher-quality waiver 

applications that meet the positive 

objectives of DOT’s innovation 

principles. Because this rule would 

apply to a variety of relief applications, 

it is difficult to quantify the potential 

benefits from consultation on any 

particular request for relief. 

1. Need for Regulatory Action 

a. Inadequate or Asymmetric 

Information 

For convenience, this analysis uses 

the term ‘‘waiver’’ request to encompass 

petitions for waiver, or other safetyrelated proceedings for regulatory relief, 

including block signal applications 

(BSAPs), and waiver renewal requests 

subject to this rulemaking. 

As stated in the Section-by-Section 

analysis for § 211.9 and FRA’s 

Guidance,13 FRA has found that some 

submitted waiver requests on the 

surface seem to contain the information 

necessary under part 211 (and are 

therefore considered ‘‘received’’ by 

FRA), but in fact do not contain 

sufficient information for FRA to 

evaluate if a submitted waiver request 

meets the applicable legal standards and 

are therefore incomplete. For these 

waiver requests containing inadequate 

information, FRA expends resources to 

work with the petitioner and affected 

stakeholders to gather the necessary 

information. Although waiver requests, 

including requests for renewal and 

modification, are published in the 

Federal Register for comment, 

addressing these information needs 

early in the waiver development process 

would potentially result in a more 

streamlined and efficient waiver request 

‘‘workflow,’’ i.e., waiver disposition 

procedure. 

By requiring petitioners and affected 

stakeholders to consult on a waiver 

request prior to submission to FRA, this 

NPRM would provide information to 

both parties that they may be lacking 

under the current waiver process. For 

example, a railroad petitioner may lack 

information on the full effects of the 

proposed waiver, and employees may 

misunderstand how a proposed waiver 

may be implemented or simply lack 

awareness of the waiver request. 

Meaningful consultation could avoid 

unexpected and unintended effects of 

the proposed waiver that another party 

may not have considered. Furthermore, 

if the waiver would involve several 

parties, for example, several railroad 

disciplines (e.g., operating practices, 

motive power and equipment), or more 

than one geographic district, 

consultation would enhance the 

distribution of information about the 

proposed waiver among these parties. 

Parties that may be potential petitioners, 

such as railroads and suppliers, and 

those that may be affected stakeholders, 

such as labor union representatives and 

community rail associations, have 

shown a willingness and ability to 

provide information through their 

participation in the Railroad Safety 

Advisory Committee (RSAC) 14 and 

submitting comments in notice-andcomment rulemakings. The burden to 

share information and consult on a 

proposed waiver rests primarily on the 

petitioner. 

Through this NPRM, FRA is also 

proposing to define the terms ‘‘in the 

public interest’’ and ‘‘consistent with 

railroad safety’’ that are used in the 

statute, 49 U.S.C. 20103(d), but not 

previously defined. Defining these terms 

will help clarify for petitioners and 

affected stakeholders how FRA will 

decide whether waiver requests meet 

the statutory standard. By defining these 

terms, FRA expects that petitioners will 

be more likely to submit waiver requests 

providing the necessary and sufficient 

information for FRA to evaluate the 

waiver proposal. That may reduce the 

chances of a waiver being dismissed 

because a submitted waiver request did 

not meet these criteria. 

b. Statutory Directive 

The NPRM would also facilitate 

FRA’s implementation of 49 U.S.C. 

20103(d)(4), requiring review and 

analysis of a waiver that has been in 

continuous effect for six years. 

Specifically, the analysis and metrics 

required under proposed § 211.9(c), and 

the data about how effective a waiver 

has been (when a waiver renewal is 

requested) under proposed § 211.9(e) 

will help FRA evaluate whether 

codifying the waiver is in the public 

interest and consistent with railroad 

safety. That is, whether the waiver 

continues to meet the statutory 

requirements. 

2. Baseline 

As background, FRA considers several 

types of waiver requests under FRA’s 

Rules of Practice and decides whether to 

grant, conditionally grant, or deny a 

submitted waiver request. If FRA’s 

preliminary review of a submitted 

petition for waiver shows it to lack 

sufficient information for further 

evaluation, the petition may be denied 

or returned to the petitioner, who may 

choose to resubmit it. 

This analysis uses the environment 

without the NPRM as the baseline 

scenario. Without the NPRM’s proposed 

requirements, FRA would continue to 

receive some waiver requests that are 

incomplete because they fail to address 

the statutory criteria of ‘‘in the public 

interest’’ and ‘‘consistent with railroad 

safety.’’ FRA would continue to expend 

resources to gather the missing 

information from petitioners and 

affected stakeholders rather than the 

petitioner providing the necessary 

information. Petitioners may face 

uncertainty about the standards FRA is 

applying in FRA’s waiver petition 

evaluation, and spend unnecessary 

resources supplementing a waiver 

petition the petitioner thought to be 

complete when initially submitted. 

When implementing the statutory 

directive to review waivers in operation 

for six years, FRA may lack some 

information to fully evaluate the 

effectiveness of the waiver. 

Some categories of waivers already 

involve consultation with affected 

stakeholders and the procedure to 

evaluate these waivers will remain 

substantially the same under the 

baseline and the NPRM. These are 

waivers involving test committees, 

hours of service (HS) laws, and train 

horns. 

3. Methodology 

The proposed data analysis and 

consultation requirements apply to 

individual petitions for waivers. 

Therefore, this analysis used the 

additional labor time per waiver request 

to meet these requirements and the 

number of waiver requests as the basis 

to estimate the average per-waiver 

request cost and the overall costs of the 

NPRM. 

The benefits estimate of potential time 

savings from ‘‘streamlining’’ the waiver 

process is qualitative because the 

benefits will depend on the nature of 

each waiver. Additionally, FRA does 

not have history to estimate the impact 

of the NPRM on FRA’s waiver Rules of 

Practice to date. Although FRA’s 

Guidance described much of the 

NPRM’s provisions as best practices, it 

was issued recently (2023). FRA notes 

petitioner and stakeholder experiences 

with waivers that already involve much 

consultation, such as those for which 

test committees were established, have 

been generally positive. These waiver 

requests that already involve much 

consultation are relatively few, 

numbering about 8 waiver requests from 

the years 2019 through 2022. 


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15Separately, FRA reviewed its waiver 

management systems and found the number of 

incoming waiver petitions from Class I railroads has 

remained fairly consistent from the years 2019 

through 2023, with a slight decrease only in 2023 

(about 24 waiver petitions per year on average). 

16STB Quarterly Wage A&B Data (2023). Annual 

composite for All Railroads. Available: https://

www.stb.gov/reports-data/economic-data/quarterlywage-ab-data/. Calculations: Group 200 

Professional & Administrative employees, $50.93 

per hour STB average straight time rate × 1.75 fringe 

benefit multiplier = $89.13 per hour burdened wage 

rate. Similarly, for Group 700 Total All Groups 

employees, $44.18 × 1.75 = $77.32 per hour 

burdened wage rate. 

Data and Assumptions 

To estimate the number of waivers 

that may be affected, FRA counted the 

number of Federal Register notices 

published pertaining to its Railroad 

Safety Board proceedings. From the 

years 2020 to 2024, a period of 4 years, 

there were 280 Federal Register notices 

or an average of 70 notices annually. 

Furthermore, by applying the 

percentage of waiver petitions filed by 

Class 1 railroads,15 FRA estimated that 

of these 70 total waiver petitions, 21 

were Class I railroad waiver petitions, 

28 were small railroad waiver petitions, 

17.5 were commuter and passenger 

service railroad waiver petitions, and 

3.5 were blanket waiver petitions 

(covering more than 1 entity) and other 

waiver petitions. Based on the waiver 

petitions that have been submitted to 

FRA in the past, most petitioners will be 

railroads and most affected stakeholders 

will be employees, who may be 

represented by labor unions. For a small 

number of waiver petitions, a 

community adjacent to a rail line 

segment or rail yard may be an affected 

stakeholder. 

To estimate the additional labor hours 

per waiver petition, FRA estimated 1 

hour per waiver request for petitioners 

to add the data analysis and metrics 

required under proposed § 211.9(c), 

which will support that the waiver 

would be aligned with the proposed 

definition of ‘‘consistent with railroad 

safety’’ in § 211.1(b). For documenting 

meaningful consultation and the 

prerequisite consultation with affected 

stakeholders, FRA estimated an equal 

number of consultations would take 1 

hour and those that would take 4 hours, 

for simple and more complex waiver 

requests respectively. FRA also 

estimated an administrative time of 

about 25 percent to schedule meetings 

and other logistics. The 50/50 split 

between simple and more complex 

waiver requests reflects the uncertainty 

around this estimate given that waiver 

requests vary and that this requirement 

would be new. The average consultation 

time is 2.5 hours per waiver request, 

and the average administrative time is 

0.625 hours per waiver request, for a 

combined average time of 3.125 hours 

per waiver request. Furthermore, FRA 

estimated 2 employees from the 

petitioner and 2 employees from an 

affected stakeholder would each incur 

the opportunity cost to engage in the 

consultation, for a total of 12.5 hours 

per waiver request. 

To monetize these additional labor 

hours, FRA used wage rates reported to 

the Surface Transportation Board (STB) 

by the Class I railroads, burdened by 75 

percent. For this analysis FRA used the 

STB wage rates for the relevant 

employee groups. For data analysis and 

describing metrics costs, FRA used the 

wage rate of $89.13, representing the 

Professional and Administrative 

employee group. For consultation costs, 

FRA used the wage rate of $77.32, 

representing the total for all groups, 

because a waiver request can include 

several different types of employees or 

railroad disciplines.16

FRA used a 10-year period for this 

analysis, allowing for 1 original waiver 

petition and 1 waiver renewal request 

after a period of 5 years. FRA has found 

that some railroads may not seek 

renewals beyond 10 years, possibly 

because equipment may be over-age, the 

waiver codified, or other changes in 

operations or equipment covered under 

the waiver. FRA also used 2023 real 

dollars (i.e., a 2023 base year). 

4. Costs 

The substantive changes from the 

baseline are found in following 

proposed sections: 

• § 211.1(b) to add definitions of ‘‘in 

the public interest’’ and ‘‘consistent 

with railroad safety.’’ 

• § 211.9(c) to require analysis and 

describe effectiveness metrics. 

• § 211.9(d) to include documentation 

of meaningful consultation. 

• § 211.9(e) to require waiver renewal 

requests to show waiver effectiveness 

and demonstrate compliance with 

conditions under which the waiver was 

granted. 

Proposing to clarify the definitions of 

‘‘in the public interest’’ and ‘‘consistent 

with railroad safety’’ in § 211.1(b) have 

no direct costs except the data analysis 

and metrics required under proposed 

§ 211.9(c) support demonstrating the 

waiver request meets these criteria; the 

sections may be seen to work together. 

It may take some additional effort to 

explicitly show how the proposed 

waiver would meet these criteria, which 

is reflected in the data analysis, metrics, 

and consultation cost sections. 

The title of § 211.9 is proposed to be 

revised to include ‘‘other safety-related 

proceedings petitions.’’ The revision 

would add proceedings such as those 

for BSAPs and test programs to this 

section. FRA has historically held 

BSAPs to the same safety standards as 

other waiver petitions. Also, as 

mentioned, waivers for which test 

committees are established include 

much consultation under the baseline. 

Therefore, this change would be 

administrative in nature and has no 

costs. 

More significantly, proposed changes 

to § 211.9(c) would add requirements for 

(data) analysis and metrics. Although 

ensuring that a proposed waiver meets 

safety criteria has always been a part of 

FRA’s evaluation, the changes in this 

section emphasize that requirement. 

Waiver requests would need to include 

analysis and clearly identify safety 

impacts. In addition, the specified 

metrics can be used to determine if the 

waiver is achieving the intended goals, 

and meeting the ‘‘in the public interest’’ 

and ‘‘consistent with railroad safety’’ 

standards. The metrics need not be 

complex, for example, accident/incident 

measures appropriate to the type of 

waiver proposed (i.e., discipline or 

railroad operation covered by the 

waiver), or relevant casualties. FRA 

estimated this cost as: Cost of analysis 

and metrics = time to perform analysis 

and metrics × wage rate × no. of waivers. 

Using 1 hour for the time, and the 

Professional and Administrative wage 

rate of $89.13 per hour, yields an 

estimated cost of $89.13 per waiver 

request, or $6,239 for the estimated 70 

waiver requests per year. The schedule 

of these costs is shown in the summary 

table below. 

The documentation requirement 

proposed in § 211.9(d) requires 

meaningful consultation between the 

petitioner and affected stakeholders. 

FRA estimated this cost as: Cost of 

consultation and documentation = 

(hours per waiver × wage rate × no. of 

employees) × no. of waivers. The cost is 

incurred by both the petitioner and 

affected stakeholders. FRA assumes the 

cost is equal for both parties. Using an 

average time (including administrative 

time) of 3.125 hours per waiver request, 

a wage rate representing all employee 

types of $77.32 per hour, 2 employees 

each for the petitioner and affected 

stakeholder(s), and 70 total waiver 

requests results in a cost of $33,826 

annually for each party. The cost per 

waiver request is $483, again for each 

party. The total costs are shown in the 

summary table below. 

Under the baseline, FRA expends 

resources to gather missing data from 


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17 87 FR 43467 (July 21, 2022). 

the waiver request that the proposed 

consultation should provide. Thus, 

some of FRA’s burden and associated 

cost may be transferred to the petitioner 

under the proposed requirements in the 

NPRM. However, FRA assumes that the 

time spent by FRA post-waiver request 

submittal is more than the time that 

would be spent by the petitioner prewaiver request submittal. FRA reasons 

that the petitioner has direct knowledge 

of the subject proposed waiver and 

ready access to affected stakeholders 

who may be employees or employee 

representatives on the petitioner’s 

worksite or property. 

Also under the baseline, petitioners 

wishing to renew a waiver are expected 

to provide enough information about its 

impacts (and under certain conditions, 

if so specified) to support its renewal. 

Proposed § 211.9(e) would require 

petitioners to show a waiver’s 

effectiveness over time and compliance 

with the specified waiver conditions 

explicitly. FRA expects there will be 

additional data available by the time a 

waiver is eligible for extension or 

renewal to demonstrate its effectiveness; 

the metrics developed in proposed 

§ 211.9(c) would assist with that effort. 

FRA notes not all waivers are submitted 

to FRA for renewal because of the age 

of the equipment, changes in 

technology, codification of waivers, or 

other operational reasons. Based on the 

Reflectorization of Rail Freight Rolling 

Stock: Codifying Existing Waivers 

NPRM,17 about 64 percent of waivers 

are eligible for renewal. Applying that 

percentage to the 70 waiver requests 

used in this analysis yields about 45 

waivers eligible for renewal annually. 

The cost is therefore accounted by: Cost 

to show renewal effectiveness and 

compliance = time to provide data × 

wage rate × no. of renewals. Using 1 

hour for the time, similar to § 211.9(c) 

for the marginal data analysis and 

metrics development, $89.13 to 

represent Professional and 

Administrative employees who may 

perform the data analysis, and 45 

renewal requests, produces a cost of 

$4,011 annually, or $89.13 per waiver. 

The schedule of NPRM costs is 

summarized in the table below. 

TABLE III–2—SCHEDULE OF NPRM COSTS

[2023 Dollars] 

Year 

§ 211.9(c) 

Analysis and 

metrics 

§ 211.9(d) 

Consultation 

and documentation 

§ 211.9(e) Waiver 

renewal 

effectiveness 

and compliance 

Total 

1 ....................................................................................................... $6,239 $67,653 $4,011 $77,903 

2 ....................................................................................................... 6,239 67,653 4,011 77,903 

3 ....................................................................................................... 6,239 67,653 4,011 77,903 

10 ..................................................................................................... 6,239 67,653 4,011 77,903 

Total .......................................................................................... 62,392 676,529 40,109 779,030 

PV 7% .............................................................................................. 43,821 475,166 28,171 547,158 

PV 3% .............................................................................................. 53,221 577,093 34,214 664,528 

PV 2% .............................................................................................. 56,044 607,698 36,028 699,770 

Annualized 7%, 3%, 2% .................................................................. 6,239 67,653 4,011 77,903 

The figures for analysis of years 4 through 9 repeat and are not shown for brevity. 

Similarly, the annualized costs using discount rates of 7%, 3%, and 2% are the same. 

Government Costs 

FRA does not anticipate any 

additional significant costs under the 

NPRM. FRA may receive more data and 

analysis to evaluate, but expects it will 

be better organized to highlight the 

information needs addressed by the 

NPRM. Overall, FRA estimates minimal 

changes to the time needed for FRA’s 

evaluation of waiver requests, which are 

a part of FRA’s customary duties. 

FRA invites comment on the inputs 

used to estimate the costs for the NPRM. 

5. Benefits 

Because FRA receives a variety of 

waiver requests covering different areas 

of the railroading environment, it is 

difficult to quantify the benefits of the 

NPRM. The benefits will depend on the 

increase in the quality of information 

FRA receives in submitted waiver 

requests. Generally, FRA expects more 

and better information that supports a 

waiver meets the overall statutory 

standard of safety vis-a`-vis the criteria of 

‘‘in the public interest’’ and ‘‘consistent 

with railroad safety.’’ 

6. Other Effects 

Distributional Effects 

The NPRM may have positive 

distributional effects. Through 

consultation and involvement of 

affected stakeholders, their concerns can 

be accounted for in evaluating a waiver 

request and setting conditions for its 

potential use. That may avoid 

concentrating the benefits of a waiver in 

a relatively small number of petitioners, 

while the costs may be spread among 

many affected stakeholders. 

7. Alternatives 

FRA considered two alternatives to 

the NPRM. First, FRA considered 

extending the time provided to 

stakeholders to comment on waiver 

requests. Second, FRA considered a 

process in which FRA would facilitate 

a discussion between a petitioner for 

waiver and affected stakeholders, in lieu 

of the consultation proposed in the 

NPRM. 

For the first alternative, FRA would 

continue to publish Federal Register 

notices concerning waiver requests as it 

currently does under FRA’s Rules of 

Practice. However, FRA could extend 

the time provided for affected 

stakeholders to comment on such 

Federal Register notices. The goal 

would be to expand the opportunity for 

affected stakeholders to provide 

information and share their concerns. 

This option would be a straightforward, 

low-cost alternative. However, simply 

extending the comment period time 

would not achieve FRA’s regulatory 

objective because FRA would still likely 

receive waiver requests that lack the indepth data needed for a thorough 

evaluation of a waiver request in light 

of the statutory standard. 

FRA also considered an alternative 

modeled after the RSAC. RSAC 

membership consists of railroads, 

suppliers, labor union representatives, 


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18Office of Personnel Management (OPM), Salary 

Table 2023–DCB (Jan. 2023). Available: https://

www.opm.gov/policy-data-oversight/pay-leave/ 

salaries-wages/salary-tables/pdf/2023/DCB_h.pdf. 

Calculation: $71.88 per hour × 1.75 fringe benefit 

multiplier = $125.79 per hour burdened rate. 

19Calculation: Cost to attend virtual meeting 

(FRA) = 4 hours × 2 employees × $125.79 per hour 

= $1,006.32. The petitioner cost equals the 

stakeholder cost = 4 hours × 2 employees × $77.32 

per hour = $618.54. 

20Sample calculation: Cost of simple waiver 

request (petitioner) = attendance cost only = 

$618.54. Cost of complex waiver request = 

$1,237.08. Average cost of waiver request = 

($618.54 + $1,237.08)/2 = $927.81 per waiver 

request. The stakeholder cost is the same as the 

petitioner cost. 

public interest groups, other 

governmental agencies, and other 

interested parties—essentially potential 

waiver petitioners and affected 

stakeholders. In the same way that 

RSAC members discuss assigned 

regulatory tasks, FRA could host a 

similar ‘‘roundtable’’ meeting for a 

petitioner and affected stakeholders to 

discuss a petitioner’s proposed waiver. 

FRA would serve as host and facilitator, 

acting in the same role as it currently 

does for RSAC meetings. However, this 

alternative may suggest a perception 

that FRA is bringing all parties together 

to eventually approve the waiver 

petition, rather than FRA serving as the 

arbiter of the petition. Simultaneously, 

in this alternative, FRA could also 

clarify the criteria of ‘‘in the public 

interest’’ and ‘‘consistent with railroad 

safety’’ that FRA uses to evaluate waiver 

requests. Similar to the NPRM, this 

alternative process could provide 

clarity, transparency, and input from 

stakeholders. 

To account for the cost of the RSAClike alternative, FRA reasoned that 

simple and routine proposed waivers 

could be discussed through virtual 

meetings, while more complex waiver 

requests would benefit from in-person 

meetings with an option to attend 

virtually, i.e., hybrid meetings. FRA 

conducts similar types of virtual and 

hybrid meetings for the RSAC. The costs 

for these meetings consist of 

administrative costs to plan meetings, 

and opportunity costs for the 

participants’ time to attend meetings. 

FRA calculated the average cost of a 

meeting to discuss a proposed petition 

and multiplied it by the estimated 70 

waiver requests a year for an overall cost 

for this alternative, as enumerated 

below. 

The administrative costs would vary 

by whether a meeting is virtual or 

hybrid. Based on a discussion with 

FRA’s RSAC program manager, the tasks 

for virtual meetings consist of 

scheduling the meeting, forming an 

agenda, and posting the meeting details 

on FRA’s website. In addition, FRA 

prepares meeting minutes after the 

meeting. For the scheduling, agenda, 

and website posting tasks, FRA 

estimated 1 hour of labor time; for the 

post-meeting minutes preparation, FRA 

estimated 3 hours of labor time; for a 

total of 4 hours. For the hybrid 

meetings, FRA would need to arrange 

for meeting space, and audio/visual (A/ 

V) equipment and personnel to operate 

it. FRA generally pays a fixed price for 

these services. FRA estimated the cost to 

rent meeting space, including 

conference room set-up, to be $5,000, 

and the cost for A/V equipment and the 

operator to be $5,000 per day, for a total 

of $10,000 per meeting (i.e., per 

complex waiver request). For 

monetizing FRA time for planning the 

virtual meeting and for the opportunity 

cost to attend meetings (see below), this 

analysis used the General Schedule (GS) 

pay rate for grade GS–14, step 5 Federal 

employees in the Washington, DC area. 

This Federal employee pay rate of 

$71.88 was burdened by 75 percent for 

fringe to yield a pay rate of $125.79 per 

hour.18 The resulting administrative 

cost for a simple waiver request was 

estimated at $503 per waiver request, 

and $10,000 for a complex waiver 

request. For both virtual and hybrid 

meetings, FRA would bear all the 

administrative costs. 

All parties would incur an 

opportunity cost to attend the meetings. 

FRA assumed two representatives from 

each party to a proposed petition would 

attend the consultation meeting, 

specifically two employees each from 

FRA, the petitioner, and affected 

stakeholders. For the petitioners and 

affected stakeholders, most of whom 

will be railroad employees, FRA used 

the same STB wage rates as used in the 

primary NPRM analysis. In general, the 

cost for attending a virtual or hybrid 

meeting is: Cost to attend meeting = 

meeting hours × no. of employees × 

wage rate, where the meeting hours will 

vary by type of meeting (virtual or 

hybrid) and the wage rate varies by type 

of employee (government or railroad). 

Using the inputs above, the FRA cost to 

attend a meeting for a simple waiver 

request would be $1,006, and would be 

$619 each for petitioners and 

stakeholders.19 The cost to attend a 

hybrid meeting for a complex waiver 

request is double the cost for virtual 

meetings because the time is doubled. 

Therefore, the FRA cost for a complex 

waiver request would be $2,013, and the 

petitioner and stakeholder cost would 

be $1,237 each. 

Adding in the administrative cost to 

FRA’s attendance cost resulted in an 

FRA cost per simple waiver request of 

$1,509, and $12,013 for a complex 

waiver request (with the majority of 

complex waiver request costs resulting 

from conference room rental and A/V 

equipment and operator fees). The 

average cost would be $6,761. For a 

petitioner and stakeholder that incur 

only the attendance cost, the average 

cost would be $928 per waiver 

request.20 Next, the respective average 

cost was multiplied by the estimated 70 

waiver requests a year for estimated 

total costs for FRA, petitioner, and 

stakeholders. These costs would remain 

constant over the 10-year period of 

analysis. The table below shows the 

present values of these cost schedules. 

The expected benefit would be the same 

qualitative benefit as for the preferred 

NPRM option. 

TABLE III–3—ALTERNATIVE OPTION: SUMMARY OF COSTS OVER THE 10-YEAR PERIOD

[2023 Dollars] 

Proposed waiver party Undiscounted *PV 7% PV 3% PV 2% **Annualized 

7%, 3%, 2% 

FRA (Gov’t) .......................................................................... $4,737,742 $3,324,080 $4,037,125 $4,251,226 $473,274 

Petitioner .............................................................................. 649,468 456,159 554,009 583,390 64,947 

Stakeholder .......................................................................... 649,468 456,159 554,009 583,390 64,947 

Total Cost ..................................................................... 6,031,678 4,236,398 5,145,144 5,418,006 603,168 

Total Cost without FRA ................................................ 1,298,936 912,318 1,108,019 1,166,781 129,894 

* PV = Present Value. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
85904 Federal Register / Vol. 89, No. 209 / Tuesday, October 29, 2024 / Proposed Rules 

21 Docket Number FRA–2009–0078 (see, e.g., 

https://www.regulations.gov/document/FRA-2009- 

0078-0216). 

** Because the schedule of costs by year are the same, the annualized values are the same. 

To compare the RSAC-like alternative 

to the preferred NPRM option, the 

estimated annualized cost is 

highlighted. The annualized cost 

(without FRA) for this alternative of 

$129,804 exceeds the cost of the NPRM 

option cost of $77,903. The cost of the 

alternative including FRA costs is much 

greater than the preferred NPRM option 

cost. Thus, the alternative would not 

reduce costs in comparison to the 

NPRM option. 

7. Sensitivity Analysis 

The costs are dependent on the 

number of waiver requests per year and 

the estimate of time to address the 

proposed requirements. The largest 

category of costs presented in Table III– 

2 is for the consultation and 

documentation provision in proposed 

§ 211.9(d). FRA assumed an equal 

number of simple and complex waiver 

requests and therefore used a straight 

average to estimate the time required. If 

the stakeholders submit and therefore 

consult on simple or routine waiver 

requests more than complex waiver 

requests, then that cost might be 

overstated; the converse is true if 

petitioners and stakeholders consider 

relatively more complex waiver 

requests. 

FRA’s count of 70 waiver petitions a 

year may underestimate the amount of 

consultation because when petitioners 

are added to existing umbrella or 

blanket waivers, there may not be 

additional discrete Federal Register 

notices (upon which the estimate of 70 

waiver petitions was based). On the 

other hand, such additional 

consultations for an existing waiver 

would be familiar and similar to 

previous consultations on the same 

blanket waiver, i.e., they would impose 

only a small burden. The number of 

blanket waiver requests is also small (3 

waiver requests). Additionally, existing 

blanket waiver requests include an HS 

waiver,21 for which FRA expects 

consultation already occurs, mitigating 

the potential overestimate of costs. 

8. Conclusion 

In this NPRM, FRA is clarifying terms 

and proposing changes to provide more 

complete information for FRA’s waiver 

proceedings. The NPRM addresses 

proposed waiver petitions received by 

FRA that lack description of the full 

range of impacts. 

FRA estimated the NPRM would 

result in costs with a present value of 

about $547,000 using a 7 percent 

discount rate and $665,000 using a 3 

percent discount rate, over a 10-year 

period of analysis in 2023 dollars. The 

benefits are described qualitatively 

because the specific benefits would 

depend on the waiver under 

consideration. In general, FRA expects 

the proposed waivers it receives would 

include more and better information 

reflecting the impacts to affected 

stakeholders. The NPRM would 

establish a way to gather this 

information potentially more efficiently 

before a waiver proposal is submitted to 

FRA instead of FRA, petitioner, and 

stakeholders working to gather this 

information post-waiver request 

submittal to FRA. The additional 

information would facilitate FRA 

determining whether that waiver 

request meets the statutory standard in 

49 U.S.C. 20103(d). FRA would also be 

better able to balance the interests of a 

petitioner and stakeholders in the 

overarching interest of public safety. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

((RFA), 5 U.S.C. 601 et seq.) and E.O. 

13272 (67 FR 53461, Aug. 16, 2002) 

require agency review of proposed and 

final rules to assess their impacts on 

small entities. When an agency issues a 

rulemaking proposal, the RFA requires 

the agency to ‘‘prepare and make 

available for public comment an initial 

regulatory flexibility analysis’’ which 

will ‘‘describe the impact of the 

proposed rule on small entities.’’ 5 

U.S.C. 603(a). 

1. Reasons for Considering Agency 

Action 

In this NPRM, FRA is proposing 

changes to its waiver procedures so 

waiver petitions submitted to FRA 

contain more complete information and 

FRA is informed by sufficient 

coordination with potential affected 

stakeholders. As discussed above, this 

NPRM would apply to waiver requests 

and other safety-related proceedings for 

regulatory relief, including BSAPs, and 

waiver renewal requests. FRA has found 

that some petitions incompletely 

describe the impacts of a proposed 

waiver because they do not address its 

potential impacts on affected 

stakeholders. The lack of sufficient 

information often requires extensive 

efforts by FRA, the petitioner, and 

affected stakeholders to gather this 

information after a waiver petition has 

been submitted to FRA or may result in 

dismissal of a petition due to lack of 

sufficient information. FRA is therefore 

proposing that petitioners requesting a 

waiver consult with affected 

stakeholders before submitting a waiver 

request to FRA. Petitioners would also 

need to provide documentation of 

consultation with affected stakeholders 

in their waiver request. See proposed 

§ 211.9(d). 

To aid petitioners requesting a waiver 

in providing the type of information 

sought by FRA, FRA is proposing to 

define the terms ‘‘in the public interest’’ 

and ‘‘consistent with railroad safety.’’ 

See proposed § 211.1(b)(6) and (7). The 

statute authorizing FRA to waive or 

suspend regulatory requirements uses 

these terms in setting the standard that 

FRA must use in its decision whether to 

grant a waiver request. However, these 

terms are not defined in the statute. 49 

U.S.C. 20103(d). 

Under the NPRM, a waiver request 

must contain analysis demonstrating 

how the proposed waiver would impact 

the overarching standard of safety. A 

waiver request also would need to 

describe the metrics used to measure its 

effectiveness. See proposed § 211.9(c). A 

waiver renewal request would be held 

to same standard, and the petitioner 

would be required to use data and 

metrics to show a waiver was effective 

from approval to request for renewal. 

See proposed § 211.9(e). 

2. A Succinct Statement of the 

Objectives of, and Legal Basis for, the 

Proposed Rule 

The proposed rule seeks to provide 

clarity for petitioners requesting a 

waiver, and result in waiver requests 

submitted to FRA that provide more indepth information upon which to base 

its evaluation. The proposed definitions 

of ‘‘in the public interest’’ and 

‘‘consistent with railroad safety’’ would 

clarify for the regulated community and 

the public the criteria FRA uses in 

deciding whether to grant a waiver 

request. Furthermore, the proposed 

requirement to include analysis and 

metrics in addition to the existing 

requirement to include relevant safety 

data would help show how a proposed 

waiver meets these two criteria. The 

safety data, analysis, and metrics would 

ultimately aid FRA in evaluating that a 

proposed waiver is in the public interest 

and consistent with railroad safety. 

Also, the proposed section requiring 

petitioners to consult with affected 

stakeholders prior to submitting a 

waiver request will help ensure the 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 89, No. 209 / Tuesday, October 29, 2024 / Proposed Rules 85905 

22 ‘‘Size Eligibility Provisions and Standards,’’ 13 

CFR part 121, subpart A. 

23 68 FR 24891 (May 9, 2003) (codified at 49 CFR 

part 209, appendix C). 

24The Class III railroad revenue threshold is 

$46,352,455 or less for 2022, the most recent year 

available. See STB, Economic Data. Available: 

https://www.stb.gov/reports-data/economic-data/. 

25See Docket No. FRA–2009–0078. Available: 

https://www.regulations.gov/document/FRA-2009- 

0078-0217. 

26 87 FR 43367 (July 21, 2022). 

27U.S. Census Bureau, NAICS (2022). Available 

at: https://www.census.gov/naics/?input=

336510&year=2022&details=336510. 

28U.S. SBA, Table of Small Business Size 

Standards Matched to North American Industry 

Classification Codes (Mar. 2023). Available at: 

https://www.sba.gov/document/support-table-sizestandards. 

29U.S. Census Bureau, 2021 SUSB Annual Data 

Tables by Establishment Industry, Data by 

Enterprise Employment Size, U.S. & states, 6-digit 

NAICS (Dec. 2023). Available at: https://

www.census.gov/data/tables/2021/econ/susb/2021- 

susb-annual.html. 

petition captures more complete 

information about a proposed waiver’s 

impacts. FRA intends such a 

consultation would be a ‘‘two-way 

street,’’ serving to gather information 

from, but also inform, affected 

stakeholders who otherwise may have 

minimal knowledge about the proposed 

waiver. Finally, the proposed 

requirements for waiver renewal 

requests would align with the proposed 

greater information needs for waiver 

requests, to show the original waivers 

were effective. 

Regarding the legal basis, this NPRM 

would define the terms ‘‘in the public 

interest’’ and ‘‘consistent with railroad 

safety’’ to help gather information from 

petitioners facilitating FRA to 

implement the statutory standard (when 

determining whether to waive or 

suspend compliance with rules or 

regulations). 49 U.S.C. 20103(d). 

Furthermore, the statute requires FRA to 

consider issuing rules codifying waivers 

that have been in effect for 6 years. For 

codification, these 6-year-old waivers 

must also meet the criteria of being ‘‘in 

the public interest’’ and ‘‘consistent 

with railroad safety;’’ the data and 

metrics proposed in the NPRM will help 

FRA determine if these waivers meet the 

statutory standard. 49 U.S.C. 

20103(d)(4). 

3. A Description of and, Where Feasible, 

an Estimate of the Number of Small 

Entities to Which the Proposed Rule 

Applies 

The RFA requires a review of 

proposed and final rules to assess their 

impact on small entities, unless the 

Secretary certifies that the rule would 

not have a significant economic impact 

on a substantial number of small 

entities. ‘‘Small entity’’ is defined in 5 

U.S.C. 601 as a small business concern 

that is independently owned and 

operated and is not dominant in its field 

of operation. The U.S. Small Business 

Administration (SBA) has authority to 

regulate issues related to small 

businesses, and stipulates in its size 

standards that a ‘‘small entity’’ in the 

railroad industry includes a for-profit 

‘‘line-haul railroad’’ that has fewer than 

1,500 employees and a ‘‘short line 

railroad’’ with fewer than 1,500 

employees.22

Federal agencies may adopt their own 

size standards for small entities in 

consultation with SBA and in 

conjunction with public comment. 

Under that authority, FRA has 

published a final statement of agency 

policy that formally establishes ‘‘small 

entities’’ or ‘‘small businesses’’ as 

railroads, contractors, and hazardous 

materials shippers that meet the revenue 

requirements of a Class III railroad as set 

forth in 49 CFR part 1201, General 

Instruction 1–1, which is $20 million or 

less in inflation-adjusted annual 

revenues; and commuter railroads or 

small governmental jurisdictions that 

serve populations of 50,000 or less.23

The $20 million limit is based on the 

STB’s revenue threshold for a Class III 

railroad carrier. Railroad revenue is 

adjusted for inflation by applying a 

revenue deflator formula in accordance 

with 49 CFR part 1201, General 

Instruction 1–1. The current threshold is 

$46.4 million.24 FRA is using this 

definition for the proposed rule. 

Based on railroads that report to FRA 

under 49 CFR part 225 (Railroad 

Accidents/Incidents), FRA estimated the 

universe of small railroads consists of 

812 Class III railroads. Because any 

railroad may request a waiver, all 812 

Class III railroads may be affected by 

this proposed rule. Considering waiver 

requests actually submitted to FRA in 

the year 2023, about 40 percent of 

petitioners were small railroads, or on 

average about 28 out of the estimated 70 

annual waiver petitions. As mentioned 

in the regulatory analysis for the NPRM, 

there are several categories of waiver 

requests that already require 

consultation and will mitigate the 

number of affected railroads. For 

example, about 215 Class III railroads 

participate in a waiver granting relief 

from provisions of 49 U.S.C. 

21103(a)(4), regarding the required 

number of hours off-duty before 

initiating an on-duty period for train 

employees. When the association 

representing Class III railroads, the 

American Short Line and Regional 

Railroad Association (ASLRRA), 

petitioned to add more of its members 

to this waiver, ASLRRA noted the 

railroads had sought input from 

employees.25 In addition, other 

rulemakings may codify waivers so that 

a small railroad would not need to 

submit a waiver request for the 

regulatory part covered by that 

rulemaking, making consultation 

unnecessary. For example, the 

Reflectorization of Rail Freight Rolling 

Stock (Reflectorization) NPRM would 

provide relief to railroads operating 

equipment used in Tourist, Historic, 

Excursion, Educational, Recreational, or 

Private (THEERP) operations. These are 

primarily small tourist railroads. As of 

2022, FRA had received waiver requests 

from 12 railroads operating THEERP 

equipment; these railroads would not 

need to file waiver renewals under the 

Reflectorization rule. FRA also 

estimated the Reflectorization 

rulemaking could positively affect 123 

tourist railroads.26

FRA is also not aware of any 

commuter railroads that serve cities of 

less than 50,000 people and would thus 

qualify as small entities. As noted in the 

regulatory analysis for the proposed 

rule, waiver requests to establish a quiet 

zone under 49 CFR part 222 already 

would involve extensive discussions 

between the local public authority and 

railroad. Therefore, FRA expects few 

affected communities under the 

proposed rule. However, there may be 

situations where small communities 

adjacent to railroad property for which 

a railroad requests a waiver, may need 

to be consulted; FRA expects these 

situations to be minimal. 

Another class of affected small 

entities may be small railroad suppliers 

that request a waiver. FRA estimated the 

North American Industry Classification 

System (NAICS) code 336510 Railroad 

Rolling Stock Manufacturing would best 

represent these suppliers because that 

classification includes firms engaged in 

manufacturing rail cars and equipment 

for both freight and passenger service.27

The SBA size standard for NAICS code 

336510 is 1,500 employees.28 Combined 

with U.S. Census data, in this industry 

there are 119 out of 137 firms that 

would qualify as small entities.29 Based 

on FRA’s experience, FRA expects most 

suppliers that request waivers would be 

either large manufacturers or associated 

with large manufacturers that would 

exceed the employment threshold to 

qualify as a small entity. For example, 

suppliers such as Wabtec Corp. and 

New York Air Brake are a part of the 

larger firms GE Transportation and 

Knorr-Bremse, respectively. However, 

suppliers may include small entities 


khammond on DSKJM1Z7X2PROD with PROPOSALS
85906 Federal Register / Vol. 89, No. 209 / Tuesday, October 29, 2024 / Proposed Rules 

30ASLRRA, Short Line and Regional Railroad 

Facts and Figures (2019 reprint of 2017 edition), p. 

12. Available at: https://www.aslrra.org/about-us/ 

industry-facts/facts-and-figures-book/. 

31FRA, Guidance on Railroad/Employee 

Consultation Requirements in 49 CFR parts 270 and 

271 (Oct. 2022). Available at: https://

railroads.dot.gov/elibrary/guidancerailroademployee-consultation-requirements-49-cfrparts-270-and-271. 

such as small electronics equipment 

manufacturers. 

Overall, a substantial number of small 

railroads may be affected by this NPRM, 

although that number is reduced by 

existing consultation requirements and 

codification of waivers under 

rulemakings. FRA invites comment on 

the number of small entities affected. 

4. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Rule, 

Including an Estimate of the Class of 

Small Entities That Will Be Subject to 

the Requirements and the Type of 

Professional Skill Necessary for 

Preparation of the Report or Record 

For this NPRM, the compliance costs 

for affected small entities mirror the 

costs for all affected entities. The cost 

categories remain the same as in the 

regulatory analysis and the cost is 

represented by: Cost per waiver = cost 

of analysis and metrics + cost of 

consultation and documentation + cost 

to show waiver renewal effectiveness 

and compliance. Using the same 

assumptions and inputs for time, 

number of employees, and wage rates as 

used in the regulatory analysis, the cost 

per waiver request is calculated by: Cost 

per waiver = $89.13 + $483.24 + 483.24 

+ $89.13 = $1,145 per waiver request. 

Given that almost all Class III railroads 

that submit a waiver request submit 1 

waiver request per year, the cost per 

waiver equals the cost per small railroad 

per year. FRA expects the cost per small 

railroad supplier will be similar. The 

cost is the same $1,145 per waiver 

request in annualized terms at 7 

percent, 3 percent, and 2 percent if the 

same cost is used over a 10-year period 

of analysis. 

ASLRRA reports that the average 

Class III railroad has an annual average 

revenue of $4.75 million.30 Thus, the 

estimated cost of the proposed rule per 

small entity is less than 0.05 percent of 

revenues. FRA determined that the cost 

would not represent a significant 

economic impact. FRA realizes the 

average revenues likely represent a wide 

variety of Class III railroads in terms of 

employment and annual revenues. 

Given these are private firms, it is 

difficult to further classify or ‘‘break 

down’’ these railroads by employment 

and revenue categories to assess the 

impact of the NPRM in more detail. FRA 

requests comment on how many Class 

III railroads may be classified by finer 

ranges of employees or revenues or 

both. 

5. Identification, to the Extent 

Practicable, of All Relevant Federal 

Rules That May Duplicate, Overlap, or 

Conflict With the Proposed Rule 

Although waiver request notifications 

are currently published in the Federal 

Register and open for comment, 

addressing these information needs 

early in the waiver development process 

would potentially result in a more 

streamlined and efficient waiver request 

‘‘workflow,’’ i.e., waiver disposition 

procedure. It would also assist FRA in 

adhering to the waiver review timeframe 

as stated in part 211. 

FRA has issued guidance to 

characterize consultation in reference to 

the regulations for the Risk Reduction 

Program (RRP), System Safety Program 

(SSP), and Fatigue Risk Management 

Program (FRMP).31 That guidance refers 

to the terms ‘‘in good faith’’ and ‘‘best 

efforts’’ that are specifically noted in the 

statute requiring those regulations. 49 

U.S.C. 20156. The terms referenced for 

this NPRM, ‘‘in the public interest’’ and 

‘‘consistent with railroad safety’’ are 

different. Also, while the overall intent 

is for substantive ‘‘good’’ consultations, 

the information to be discussed in the 

consultation for this NPRM is different 

than the information for consultation for 

RRP, SSP, and FRMP. Therefore, the 

consultations that would be required in 

this NPRM would not be duplicative of 

the consultations described in the 

guidance. 

6. A Description of Significant 

Alternatives to the Proposed Rule 

In the regulatory evaluation, FRA 

considered an alternative modeled after 

its Railroad Safety Advisory Committee. 

In this scenario, FRA would serve as 

host and facilitator for potential 

petitioners and affected stakeholders to 

discuss a waiver request. FRA could 

clarify the terms ‘‘in the public interest’’ 

and ‘‘consistent with railroad safety’’ 

and engage parties to the waiver request 

for meaningful consultation. However, 

because FRA would be involved, rather 

than the petitioner and affected 

stakeholder communicating directly 

with each other, the alternative would 

have higher costs. In addition, for more 

complex waivers, the rental costs for 

meeting space and audio/visual 

equipment to enable a hybrid meeting 

would increase costs. Thus, the 

alternative would have higher total costs 

than the proposed rule. 

C. Paperwork Reduction Act 

The changes in this proposed rule, if 

adopted, would result in a burden 

increase for petitions for regulatory 

relief under the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

FRA reports burden hours for waivers 

processed in accordance with part 211 

of the CFR in each of the relevant 

individual information collection 

submissions. The current number of 

burden hours reported for waiver 

submissions over 17 information 

collections is 674 hours. The additional 

hours estimated from this NPRM are 164 

hours (838¥674 = 164). The Office of 

Management and Budget (OMB) control 

numbers that would have revised 

requirements, as proposed in this 

NPRM, are listed in the table below and 

reflect the revised estimated burden 

hours. The revised burden requirements 

for each OMB number listed in the table 

will be updated in each of the relevant 

individual information collections, after 

issuance of the final rule. 

OMB control No. Title 

Total annual 

waiver 

requests 

Average time 

per waiver 

Total annual 

burden hours Wage rate 

Total cost 

equivalent in 

U.S. dollars 

(A) (B) (C = A * B) (D = C * wage 

rates) 

2130–0010 ........................................... Track Safety Standards ...................... 10 4.25 42.50 89.13 $3,788.03 

2130–0526 ........................................... Control of Alcohol and Drug Use in 

Railroad Operations.

3 4.25 12.75 89.13 1,136.41 

2130–0524 ........................................... Railroad Communications ................... 2 3.25 6.50 89.13 579.35 

2130–0560 ........................................... Use of Locomotive Horns at Highway 

Rail Grade Crossings.

2 6.25 12.50 89.13 1,114.13 

2130–0566 ........................................... Reflectorization of Freight Rolling 

Stock.

10 10.25 102.50 89.13 9,135.83 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 89, No. 209 / Tuesday, October 29, 2024 / Proposed Rules 85907 

32E.O. 14096 ‘‘Revitalizing Our Nation’s 

Commitment to Environmental Justice,’’ issued on 

April 26, 2023, supplements E.O. 12898, but is not 

currently referenced in DOT Order 5610.2C. 

OMB control No. Title 

Total annual 

waiver 

requests 

Average time 

per waiver 

Total annual 

burden hours Wage rate 

Total cost 

equivalent in 

U.S. dollars 

(A) (B) (C = A * B) (D = C * wage 

rates) 

2130–0571 ........................................... Occupational Noise Exposure for Railroad Operating Employees.0.3 3.25 0.98 89.13 86.90 

2130–0005 ........................................... Hours of Service ................................. 2 26.25 52.50 89.13 4,679.33 

2130–0505 ........................................... Inspection and Maintenance of Steam 

Locomotives.

1 3.25 3.25 89.13 289.67 

2130–0594 ........................................... Railroad Safety Appliance Standards 3 18.25 54.75 89.13 4,879.87 

2130–0008 ........................................... Brakes Safety Standards .................... 2 166 332.00 89.13 29,591.16 

2130–0586 ........................................... Bridge Safety Standards ..................... 0.3 6.25 1.88 89.13 167.12 

2130–0544 ........................................... Passenger Equipment Safety Standards.12 8.25 99.00 89.13 8,823.87 

2130–0545 ........................................... Passenger Train Emergency Preparedness.1 12.25 12.25 89.13 1,091.84 

2130–0533 ........................................... Certification of Locomotive Engineers 10 3.25 32.50 89.13 2,896.73 

2130–0525 ........................................... Certification of Glazing Materials ........ 1 6.25 6.25 89.13 557.06 

2130–0596 ........................................... Conductor Certification ....................... 9 5.25 47.25 89.13 4,211.39 

2130–0610 ........................................... Risk Reduction Program ..................... 1 18.25 18.25 89.13 1,626.62 

Total ............................................. ............................................................. 70 ........................ 838 ........................ 74,655.29 

D. Environmental Impact 

FRA has evaluated this proposed rule 

in accordance with the National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321 et seq.), FRA’s regulations 

implementing NEPA, and other 

environmental statutes, E.O.s, and 

related regulatory requirements. FRA 

has determined that the proposed rule is 

categorically excluded from detailed 

environmental review under 23 CFR 

711.116(c)(5). FRA has also evaluated 

this NPRM under 23 CFR 771.116(b) to 

determine whether the rule would 

involve unusual circumstances 

including significant environmental 

impacts; substantial controversy on 

environmental grounds; significant 

impact on certain Federally protected 

properties; or inconsistencies with any 

Federal, State, or local law, requirement, 

or administrative determination related 

to the environmental aspects of the 

action. FRA has determined that no 

unusual circumstances exist with 

respect to this rule that might trigger the 

need for a more detailed environmental 

review. As a result, FRA finds that the 

proposed rule is not a major Federal 

action significantly affecting the quality 

of the human environment. 

E. Environmental Justice 

E.O. 12898, ‘‘Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations,’’ requires DOT agencies to 

achieve environmental justice as part of 

their mission by identifying and 

addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects, 

including interrelated social and 

economic effects, of their programs, 

policies, and activities on minority 

populations and low-income 

populations. DOT Order 5610.2C (‘‘U.S. 

Department of Transportation Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations’’) instructs DOT agencies to 

address compliance with E.O. 12898 

and requirements within the DOT Order 

5610.2C in rulemaking activities, as 

appropriate, and also requires 

consideration of the benefits of 

transportation programs, policies, and 

other activities where minority 

populations and low-income 

populations benefit, at a minimum, to 

the same level as the general population 

as a whole when determining impacts 

on minority and low-income 

populations.32 FRA has evaluated this 

NPRM under E.O.s 12898, 14096, and 

DOT Order 5610.2C, and has 

determined it will not cause 

disproportionate and adverse human 

health and environmental effects on 

communities with environmental justice 

concerns. 

F. Federalism Implications 

This NPRM 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. Thus, in 

accordance with E.O. 13132, Federalism 

(64 FR 43255, Aug. 10, 1999), 

preparation of a Federalism Assessment 

is not warranted. 

G. Unfunded Mandates Reform Act of 

1995 

This proposed rule will not result in 

the expenditure, in the aggregate, of 

$100,000,000 or more, adjusted for 

inflation, in any one year by State, local, 

or Indian Tribal governments, or the 

private sector. Thus, consistent with 

section 202 of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4, 2 

U.S.C. 1532), FRA is not required to 

prepare a written statement detailing the 

effect of such an expenditure. 

H. Energy Impact 

E.O. 13211 requires Federal agencies 

to prepare a Statement of Energy Effects 

for any ‘‘significant energy action.’’ 66 

FR 28355 (May 22, 2001). FRA has 

evaluated this proposed rule in 

accordance with E.O. 13211 and 

determined that this rule is not a 

‘‘significant energy action’’ within the 

meaning of E.O. 13211. 

I. Executive Order 13175 (Tribal 

Consultation) 

FRA has evaluated this proposed rule 

in accordance with the principles and 

criteria contained in E.O. 13175, 

Consultation and Coordination with 

Indian Tribal Governments, dated 

November 6, 2000. The proposed rule 

would not have a substantial direct 

effect on one or more Indian tribes, 

would not impose substantial direct 

compliance costs on Indian tribal 

governments, and would not preempt 

tribal laws. Therefore, the funding and 

consultation requirements of E.O. 13175 

do not apply, and a tribal summary 

impact statement is not required. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
85908 Federal Register / Vol. 89, No. 209 / Tuesday, October 29, 2024 / Proposed Rules 

J. International Trade Impact 

Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and where 

appropriate, that they be the basis for 

U.S. standards. This rulemaking is 

purely domestic in nature and is not 

expected to affect trade opportunities 

for U.S. firms doing business overseas or 

for foreign firms doing business in the 

United States. 

K. Privacy Act Statement 

In accordance with 5 U.S.C. 553(c), 

DOT solicits comments from the public 

to better inform its rulemaking process. 

DOT posts these comments, without 

edit, to www.regulations.gov, as 

described in the system of records 

notice, DOT/ALL–14 FDMS, accessible 

through www.dot.gov/privacy. To 

facilitate comment tracking and 

response, we encourage commenters to 

provide their name, or the name of their 

organization; however, submission of 

names is completely optional. Whether 

or not commenters identify themselves, 

all timely comments will be fully 

considered. If you wish to provide 

comments containing proprietary or 

confidential information, please contact 

the agency for alternate submission 

instructions. 

L. Rulemaking Summary, 5 U.S.C. 

553(b)(4) 

As required by 5 U.S.C. 553(b)(4), a 

summary of this rulemaking can be 

found in the Abstract section of the 

Department’s Unified Agenda entry for 

this rulemaking at https://

www.reginfo.gov/public/do/eAgenda

ViewRule?pubId=202404&RIN=2130- 

AC97. 

List of Subjects in 49 CFR Part 211 

Administrative practice and 

procedure, Rules of practice. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend part 

211 of chapter II, subtitle B of title 49, 

Code of Federal Regulations, as follows: 

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 1.89. 

■ 2. Revise § 211.1 to read as follows: 

§ 211.1 General. 

(a) This part prescribes rules of 

practice that apply to rulemaking and 

waiver proceedings, review of 

emergency orders issued under 49 

U.S.C. 20104, and miscellaneous safetyrelated proceedings and informal safety 

inquiries. Each proceeding under the 

Safety Act, as defined at paragraph 

(b)(3) of this section, shall be disposed 

of within 12 months after the date it is 

initiated. A proceeding shall be deemed 

to be initiated and the time period for 

its disposition shall begin on the date a 

petition or application that complies 

with the requirements of this chapter is 

confirmed to be complete by FRA. 

(b) As used in this part— 

(1) Administrator means the Federal 

Railroad Administrator or the Deputy 

Administrator or the delegate of either 

of them. 

(2) Waiver includes exemption. 

(3) Safety Act means the Federal 

Railroad Safety Act of 1970, as amended 

(49 U.S.C. ch. 201 et seq.). 

(4) Docket Clerk means the Docket 

Clerk, U.S. Department of 

Transportation, Docket Operations, 

www.regulations.gov. 

(5) Railroad Safety Board means the 

Railroad Safety Board, Office of Railroad 

Safety, Federal Railroad Administration, 

Washington, DC 20590. 

(6) In the Public Interest means the 

proposed request demonstrates positive 

factors including, but not limited to, 

empowering workers, ensuring equity, 

protecting the environment, creating 

robust infrastructure, enabling 

adaptability and resiliency, bringing 

legacy systems up to current standards, 

allowing for experimentation consistent 

with railroad safety, providing 

opportunities to collaborate, ensuring 

interoperability, integrating across 

transportation modes, and the wellbeing of the public at large. 

(7) Consistent with railroad safety 

means the proposal is at least as safe as 

or safer than the status quo (i.e., without 

the proposed relief). 

(c) Records relating to proceedings 

and inquiries subject to this part are 

available for inspection as provided in 

part 7 of this title. 

■ 3. Amend § 211.7 by revising 

paragraph (b)(1) to read as follows: 

§ 211.7 Filing requirements. 

* * * * * 

(b) * * * 

(1) All petitions and applications 

subject to this part, including 

applications for special approval under 

§§ 211.55 and 238.21 of this chapter, 

petitions for approval under § 238.203 

of this chapter, and signal applications 

under parts 235 and 236 of this chapter, 

shall be submitted to FRA via email to 

FRAWaivers@dot.gov. Each petition and 

application received shall be 

acknowledged in writing. The 

acknowledgment shall contain the 

docket number assigned to the petition 

or application and state the date FRA 

determined the petition or application 

was complete. Within 60 days following 

receipt, FRA will advise the petitioner 

or applicant of any deficiencies in its 

petition or application. 

* * * * * 

■ 4. Revise § 211.9 to read as follows: 

§ 211.9 Content of waiver and other safetyrelated proceeding petitions. 

Each petition for waiver or other 

safety-related proceeding for regulatory 

relief must: 

(a) Specify the rule, regulation, or 

standard that the petitioner seeks to 

have waived. 

(b) Explain the interest of the 

petitioner, and the need for the action 

requested; explain the nature and extent 

of the relief sought, and identify and 

describe the persons, equipment, 

installations, and locations to be 

covered by the waiver. 

(c) Contain sufficient information to 

support the action sought including an 

evaluation of anticipated impacts of the 

action sought. Each petition pertaining 

to safety regulations must also contain 

relevant safety data and analysis to 

demonstrate the petition is in the public 

interest and consistent with railroad 

safety, and outline the metrics to be 

used to determine effectiveness of the 

waiver or other relief, if granted. 

(d) Include documentation 

demonstrating meaningful good faith 

consultation with potentially affected 

stakeholders, including applicable rail 

labor stakeholders, on the proposed 

request for relief, prior to submission to 

FRA for evaluation and processing. 

(e) In any request for renewal or 

expansion: 

(1) provide data on the overall 

effectiveness of the waiver or other 

relief; 

(2) demonstrate compliance with any 

conditions that were included in the 

previous grant of relief; and 

(3) demonstrate how the waiver, 

suspension, or other approval for relief 

is, and will continue to be, in the public 

interest and consistent with railroad 

safety. 

■ 5. Add § 211.10 to read as follows: 

§ 211.10 Content of rulemaking petitions. 

Each petition for rulemaking must: 

(a) Set forth the text or substance of 

the rule, regulation, standard, or 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 89, No. 209 / Tuesday, October 29, 2024 / Proposed Rules 85909 

amendment proposed, or specify the 

rule, regulation, or standard that the 

petitioner seeks to have repealed. 

(b) Explain the interest of the 

petitioner, and the need for the action 

requested. 

(c) Contain sufficient information to 

support the action sought including an 

evaluation of anticipated impacts of the 

action sought; each evaluation must 

include an estimate of resulting costs to 

the private sector, to consumers, and to 

Federal, State, and local governments as 

well as an evaluation of resulting 

benefits, quantified to the extent 

practicable. 

■ 6. Revise § 211.11 to read as follows: 

§ 211.11 Processing of petitions for 

rulemaking. 

(a) General. Each petition for 

rulemaking filed as prescribed in 

§§ 211.7 and 211.10 is referred to the 

head of the office responsible for the 

subject matter of the petition to review 

and recommend appropriate action to 

the Administrator. No public hearing or 

oral argument is held before the 

Administrator decides whether the 

petition should be granted. However, a 

notice may be published in the Federal 

Register inviting written comments 

concerning the petition. Each petition 

shall be granted or denied not later than 

six months after its receipt by the 

Docket Clerk. 

(b) Grants. If the Administrator 

determines that a rulemaking petition 

complies with the requirements of 

§ 211.10 and that rulemaking is 

justified, the Administrator initiates a 

rulemaking proceeding by publishing an 

advance notice or notice of proposed 

rulemaking in the Federal Register. 

(c) Denials. If the Administrator 

determines that a rulemaking petition 

does not comply with the requirements 

of § 211.10 or that rulemaking is not 

justified, the Administrator denies the 

petition. If the petition pertains to 

railroad safety, the Administrator may 

also initiate an informal safety inquiry 

under § 211.61. 

(d) Notification; closing of docket. 

Whenever the Administrator grants or 

denies a rulemaking petition, a notice of 

the grant or denial is sent to the 

petitioner. If the petition is denied, the 

proceeding is terminated and the docket 

for that petition is closed. 

■ 7. Revise § 211.13 to read as follows: 

§ 211.13 Initiation and completion of 

rulemaking proceedings. 

The Administrator initiates all 

rulemaking proceedings on the 

Administrator’s own motion by 

publishing an advance notice of 

proposed rulemaking or a notice of 

proposed rulemaking in the Federal 

Register. However, the Administrator 

may consider the recommendations of 

interested persons or other agencies of 

the United States. A separate docket is 

established and maintained for each 

rulemaking proceeding. Each 

rulemaking proceeding shall be 

completed not later than 12 months 

after the initial notice in that proceeding 

is published in the Federal Register. 

However, if it was initiated as the result 

of the granting of a rulemaking petition, 

the rulemaking proceeding shall be 

completed not later than 12 months 

after the petition was filed as prescribed 

in §§ 211.7 and 211.10. 

■ 8. Amend § 211.41 by revising 

paragraph (b) to read as follows: 

§ 211.41 Processing of petitions for waiver 

of safety rules. 

* * * * * 

(b) Notice and hearing. A notice is 

published in the Federal Register, an 

opportunity for public comment is 

provided (with a standard comment 

period of 60 days), and a hearing is held 

in accordance with § 211.25, before the 

petition is granted or denied. Any 

comment period shorter than 60 days 

must be authorized by the 

Administrator. 

* * * * * 

■ 9. Amend § 211.43 by revising 

paragraph (b) to read as follows: 

§ 211.43 Processing of other waiver 

petitions. 

* * * * * 

(b) Notice and hearing. A notice is 

published in the Federal Register, an 

opportunity for public comment is 

provided (with a standard comment 

period of 60 days), and a hearing is held 

in accordance with § 211.25, before the 

petition is granted or denied. Any 

comment period shorter than 60 days 

must be authorized by the 

Administrator. 

* * * * * 

Issued in Washington, DC. 

Amitabha Bose, 

Administrator. 

[FR Doc. 2024–24586 Filed 10–28–24; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2024–0051; 

FXES1113090FEDR–245–FF09E22000] 

RIN 1018–BF55 

Endangered and Threatened Wildlife 

and Plants; Removing Chipola 

Slabshell and Fat Threeridge From the 

Federal List of Endangered and 

Threatened Wildlife 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

remove the Chipola slabshell (Elliptio 

chipolaensis) and fat threeridge 

(Amblema neislerii), both freshwater 

mussels, from the Federal List of 

Endangered and Threatened Wildlife 

due to recovery. These species occur in 

the Apalachicola-Chattahoochee-Flint 

River Basin of Alabama, Georgia, and 

Florida. Our review of the best available 

scientific and commercial data indicates 

that the threats to the Chipola slabshell 

and fat threeridge have been eliminated 

or reduced to the point that both species 

have recovered and no longer meet the 

definition of an endangered or 

threatened species under the 

Endangered Species Act of 1973, as 

amended (Act). Accordingly, we 

propose to delist the Chipola slabshell 

and the fat threeridge. If we finalize this 

rule as proposed, the prohibitions and 

conservation measures provided by the 

Act, particularly through sections 4 and 

7 for the Chipola slabshell and sections 

7 and 9 for the fat threeridge, would no 

longer apply to these species. This 

proposed rule also serves as the 

completed status review initiated under 

section 4(c)(2) of the Act. 

DATES: We will accept comments 

received or postmarked on or before 

December 30, 2024. We must receive 

requests for public hearings, in writing, 

at the address shown in FOR FURTHER

INFORMATION CONTACT by December 13, 

2024. 

ADDRESSES: 

Written comments: You may submit 

comments by one of the following 

methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter FWS–R4–ES–2024–0051, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the Search panel on 


khammond on DSKJM1Z7X2PROD with PROPOSALS