[Federal Register Volume 89, Number 209 (Tuesday, October 29, 2024)]
[Proposed Rules]
[Pages 85895-85909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24586]


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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 
Safety-Related Proceedings

AGENCY: Federal Railroad Administration (FRA), U.S. Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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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 <a href="/cdn-cgi/l/email-protection#cfb9aabda0a1a6acaee1aca7a6bbbba6a28faba0bbe1a8a0b9"><span class="__cf_email__" data-cfemail="3741524558595e545619545f5e43435e5a7753584319505841">[email protected]</span></a>, 202-480-3410; 
or Lucinda Henriksen, Senior Advisor, Office of Railroad Safety, at 
<a href="/cdn-cgi/l/email-protection#a4c8d1c7cdcac0c58accc1cad6cdcfd7c1cae4c0cbd08ac3cbd2"><span class="__cf_email__" data-cfemail="89e5fceae0e7ede8a7e1ece7fbe0e2faece7c9ede6fda7eee6ff">[email protected]</span></a>, 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\
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    \1\ The 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 (Sec. Sec.  211.41 through 
211.45).
    \4\ See 49 CFR 211.9.
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    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.
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    \5\ https://railroads.dot.gov/elibrary/guidance-submitting-requests-waivers-block-signal-applications-and-other-approval-requests; 88 FR 1448 (Jan. 10, 2023).
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    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

Sec.  211.1 General

    FRA proposes to make minor editorial amendments to Sec.  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 Sec.  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 Sec.  211.1(a) to the proposed 
updated definition of ``Safety Act'' in Sec.  211.1(b)(3). In the 
definition of ``Docket Clerk'' in Sec.  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 Sec.  211.1(b)(5), FRA proposes to insert the word ``Railroad''

[[Page 85896]]

before ``Safety'' into the outdated term ``Office of Safety.''
    FRA proposes to amend Sec.  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 Sec.  
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 Sec.  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 performance-based regulations and 
interoperability, and the need for a collaborative approach across 
transportation modes.
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    \6\ https://www.transportation.gov/priorities/transformation/us-dot-innovation-principles.
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    For purposes of this part, in Sec.  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 Sec.  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 Sec.  
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.
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    \7\ https://www.transportation.gov/priorities/transformation/us-dot-innovation-principles.
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    For purposes of this part and for understanding the statutory 
standard, in Sec.  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 well-
being 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 Sec.  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

[[Page 85897]]

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 Sec.  211.1(b)(6).
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    \8\ FRA 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.
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    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 Sec.  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.''
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    \9\ https://railroads.dot.gov/about-fra/communications/newsroom/press-releases/usdot-secretary-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.'').
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    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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
211.1(b)(7).

Sec.  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 
<a href="/cdn-cgi/l/email-protection#d096829187b1b9a6b5a2a390b4bfa4feb7bfa6"><span class="__cf_email__" data-cfemail="397f6b786e58504f5c4b4a795d564d175e564f">[email protected]</span></a>.'' 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.''

Sec.  211.9 Content of Waiver and Other Safety-Related Proceeding 
Petitions

    First, FRA proposes to make minor editorial amendments to Sec.  
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 Sec.  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 Sec.  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 Sec.  211.9 and add a 
new Sec.  211.10 dedicated to the content requirements of rulemaking 
petitions. Additionally, in Sec.  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

[[Page 85898]]

detailed cost benefit analysis is more applicable to petitions for 
rulemaking, and thus FRA proposes moving this language into Sec.  
211.10(c) pertaining to rulemakings.
    Second, FRA proposes to amend Sec.  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 Sec.  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.
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    \10\ https://railroads.dot.gov/elibrary/guidance-submitting-requests-waivers-block-signal-applications-and-other-approval-requests.
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    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.
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    \11\ Guidance on Railroad/Employee Consultation Requirements in 
49 CFR parts 270 and 271, https://railroads.dot.gov/elibrary/guidance-railroademployee-consultation-requirements-49-cfr-parts-270-and-271.
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    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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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.''

Sec.  211.10 Content of Rulemaking Petitions

    FRA proposes to establish a new provision, Sec.  211.10, to outline 
content requirements for rulemaking petitions. As discussed above, FRA 
proposes to remove rulemaking petitions from Sec.  211.9, and create a 
standalone Sec.  211.10

[[Page 85899]]

to address rulemaking content requirements. The requirements proposed 
in Sec.  211.10 are substantively similar to the existing Sec.  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.

Sec.  211.11 Processing of Petitions for Rulemaking

    FRA proposes updating the references in this provision from Sec.  
211.9 to Sec.  211.10, to reflect the proposed bifurcation of petitions 
for waivers and petitions for rulemaking content requirements. In Sec.  
211.11(b) and (c), FRA proposes replacing references to the pronoun 
``he'' with ``the Administrator.'' In Sec.  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.

Sec.  211.13 Initiation and Completion of Rulemaking Proceedings

    FRA proposes updating the reference in this provision from Sec.  
211.9 to Sec.  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.''

Sec.  211.41 Processing of Petitions for Waiver of Safety Rules

    FRA proposes to update the language in Sec.  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.

Sec.  211.43 Processing of Other Waiver Petitions

    FRA proposes to update the language in Sec.  211.43(b) to mirror 
the changes as discussed for Sec.  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 non-significant 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.
---------------------------------------------------------------------------

    \12\ 88 FR 21879 (Apr. 6, 2023) located at https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review.

                       Table III-1--Summary of Costs and Benefits Over the 10-Year Period
                                                 [2023 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                   ** Annualized
             Impact                Undiscounted       * PV 7%          PV 3%           PV 2%        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          40,109          28,171          34,214          36,028           4,011
 Conditions Compliance..........
                                 -------------------------------------------------------------------------------
    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.


[[Page 85900]]

    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 safety-related 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 Sec.  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.
---------------------------------------------------------------------------

    \13\ 88 FR 1448 (Jan. 10, 2023).
---------------------------------------------------------------------------

    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-and-comment rulemakings. The burden to 
share information and consult on a proposed waiver rests primarily on 
the petitioner.
---------------------------------------------------------------------------

    \14\ https://rsac.fra.dot.gov/.
---------------------------------------------------------------------------

    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 Sec.  211.9(c), and the data about how 
effective a waiver has been (when a waiver renewal is requested) under 
proposed Sec.  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.

[[Page 85901]]

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.
---------------------------------------------------------------------------

    \15\ Separately, 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).
---------------------------------------------------------------------------

    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 Sec.  211.9(c), which will 
support that the waiver would be aligned with the proposed definition 
of ``consistent with railroad safety'' in Sec.  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\
---------------------------------------------------------------------------

    \16\ STB Quarterly Wage A&B Data (2023). Annual composite for 
All Railroads. Available: https://www.stb.gov/reports-data/economic-data/quarterly-wage-ab-data/. Calculations: Group 200 Professional & 
Administrative employees, $50.93 per hour STB average straight time 
rate x 1.75 fringe benefit multiplier = $89.13 per hour burdened 
wage rate. Similarly, for Group 700 Total All Groups employees, 
$44.18 x 1.75 = $77.32 per hour burdened wage rate.
---------------------------------------------------------------------------

    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:
    <bullet> Sec.  211.1(b) to add definitions of ``in the public 
interest'' and ``consistent with railroad safety.''
    <bullet> Sec.  211.9(c) to require analysis and describe 
effectiveness metrics.
    <bullet> Sec.  211.9(d) to include documentation of meaningful 
consultation.
    <bullet> Sec.  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 Sec.  211.1(b) have no 
direct costs except the data analysis and metrics required under 
proposed Sec.  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 Sec.  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 Sec.  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 x wage rate x 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 Sec.  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 x wage rate x no. of employees) x 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

[[Page 85902]]

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 pre-waiver 
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 
Sec.  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 Sec.  
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 x wage rate 
x no. of renewals. Using 1 hour for the time, similar to Sec.  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.
---------------------------------------------------------------------------

    \17\ 87 FR 43467 (July 21, 2022).
---------------------------------------------------------------------------

    The schedule of NPRM costs is summarized in the table below.

                                       Table III-2--Schedule of NPRM Costs
                                                 [2023 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                Sec.   211.9(e)
                                               Sec.         Sec.   211.9(d)     Waiver renewal
                  Year                       211.9(c)      Consultation and    effectiveness and       Total
                                           Analysis and      documentation        compliance
----------------------------------------------metrics-----------------------------------------------------------
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-
[agrave]-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 
in-depth 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,

[[Page 85903]]

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 RSAC-like 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.
---------------------------------------------------------------------------

    \18\ Office 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 x 1.75 fringe benefit multiplier = 
$125.79 per hour burdened rate.
---------------------------------------------------------------------------

    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 x no. of employees x 
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.
---------------------------------------------------------------------------

    \19\ Calculation: Cost to attend virtual meeting (FRA) = 4 hours 
x 2 employees x $125.79 per hour = $1,006.32. The petitioner cost 
equals the stakeholder cost = 4 hours x 2 employees x $77.32 per 
hour = $618.54.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \20\ Sample 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.

                    Table III-3--Alternative Option: Summary of Costs Over the 10-Year Period
                                                 [2023 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                   **Annualized
      Proposed waiver party        Undiscounted       *PV 7%           PV 3%           PV 2%        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.

[[Page 85904]]

 
** 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 Sec.  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.
---------------------------------------------------------------------------

    \21\ Docket Number FRA-2009-0078 (see, e.g., https://www.regulations.gov/document/FRA-2009-0078-0216).
---------------------------------------------------------------------------

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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 in-depth 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

[[Page 85905]]

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\
---------------------------------------------------------------------------

    \22\ ``Size Eligibility Provisions and Standards,'' 13 CFR part 
121, subpart A.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \23\ 68 FR 24891 (May 9, 2003) (codified at 49 CFR part 209, 
appendix C).
    \24\ The 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/.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \25\ See Docket No. FRA-2009-0078. Available: https://www.regulations.gov/document/FRA-2009-0078-0217.
    \26\ 87 FR 43367 (July 21, 2022).
---------------------------------------------------------------------------

    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

[[Page 85906]]

such as small electronics equipment manufacturers.
---------------------------------------------------------------------------

    \27\ U.S. Census Bureau, NAICS (2022). Available at: https://www.census.gov/naics/?input=336510&year=2022&details=336510.
    \28\ U.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-size-standards.
    \29\ U.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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \30\ ASLRRA, 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/.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \31\ FRA, Guidance on Railroad/Employee Consultation 
Requirements in 49 CFR parts 270 and 271 (Oct. 2022). Available at: 
https://railroads.dot.gov/elibrary/guidance-railroademployee-consultation-requirements-49-cfr-parts-270-and-271.
---------------------------------------------------------------------------

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.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Total annual                                                     Total cost
              OMB control No.                           Title                 waiver       Average time    Total annual      Wage rate     equivalent in
                                                                             requests       per waiver     burden hours                    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                3            4.25           12.75           89.13        1,136.41
                                             Use in Railroad Operations.
2130-0524.................................  Railroad Communications.....               2            3.25            6.50           89.13          579.35
2130-0560.................................  Use of Locomotive Horns at                 2            6.25           12.50           89.13        1,114.13
                                             Highway Rail Grade
                                             Crossings.
2130-0566.................................  Reflectorization of Freight               10           10.25          102.50           89.13        9,135.83
                                             Rolling Stock.

[[Page 85907]]

 
2130-0571.................................  Occupational Noise Exposure              0.3            3.25            0.98           89.13           86.90
                                             for Railroad Operating
                                             Employees.
2130-0005.................................  Hours of Service............               2           26.25           52.50           89.13        4,679.33
2130-0505.................................  Inspection and Maintenance                 1            3.25            3.25           89.13          289.67
                                             of Steam Locomotives.
2130-0594.................................  Railroad Safety Appliance                  3           18.25           54.75           89.13        4,879.87
                                             Standards.
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                12            8.25           99.00           89.13        8,823.87
                                             Standards.
2130-0545.................................  Passenger Train Emergency                  1           12.25           12.25           89.13        1,091.84
                                             Preparedness.
2130-0533.................................  Certification of Locomotive               10            3.25           32.50           89.13        2,896.73
                                             Engineers.
2130-0525.................................  Certification of Glazing                   1            6.25            6.25           89.13          557.06
                                             Materials.
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.
---------------------------------------------------------------------------

    \32\ E.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.
---------------------------------------------------------------------------

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.

[[Page 85908]]

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/eAgendaViewRule?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

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

    Authority:  49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, 
and 49 CFR 1.89.

0
2. Revise Sec.  211.1 to read as follows:


Sec.  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 safety-related 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 well-being 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.
0
3. Amend Sec.  211.7 by revising paragraph (b)(1) to read as follows:


Sec.  211.7   Filing requirements.

* * * * *
    (b) * * *
    (1) All petitions and applications subject to this part, including 
applications for special approval under Sec. Sec.  211.55 and 238.21 of 
this chapter, petitions for approval under Sec.  238.203 of this 
chapter, and signal applications under parts 235 and 236 of this 
chapter, shall be submitted to FRA via email to <a href="/cdn-cgi/l/email-protection#3a7c687b6d5b534c5f48497a5e554e145d554c"><span class="__cf_email__" data-cfemail="a0e6f2e1f7c1c9d6c5d2d3e0c4cfd48ec7cfd6">[email protected]</span></a>. 
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.
* * * * *
0
4. Revise Sec.  211.9 to read as follows:


Sec.  211.9   Content of waiver and other safety-related 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.
0
5. Add Sec.  211.10 to read as follows:


Sec.  211.10  Content of rulemaking petitions.

    Each petition for rulemaking must:
    (a) Set forth the text or substance of the rule, regulation, 
standard, or

[[Page 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.
0
6. Revise Sec.  211.11 to read as follows:


Sec.  211.11  Processing of petitions for rulemaking.

    (a) General. Each petition for rulemaking filed as prescribed in 
Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  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.
0
7. Revise Sec.  211.13 to read as follows:


Sec.  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 
Sec. Sec.  211.7 and 211.10.
0
8. Amend Sec.  211.41 by revising paragraph (b) to read as follows:


Sec.  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 Sec.  211.25, before the petition is granted or denied. 
Any comment period shorter than 60 days must be authorized by the 
Administrator.
* * * * *
0
9. Amend Sec.  211.43 by revising paragraph (b) to read as follows:


Sec.  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 Sec.  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


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