Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations 24129

proceeding had raised, and we did not

discuss, whether we had the authority

to continue the pioneer’s preference

program beyond the date specified in

section 309(j)(13)(F) for preference

requests filed on or before September 1,

1994. It is clear, however, that we

retained no such authority. The GATT

legislation required the termination of

the entire pioneer’s preference program

by a date certain, September 30, 1998.

That we retained the discretion to

terminate the program with respect to

earlier-filed preference requests (but

chose not to exercise that discretion)

does not imply that we had discretion

to continue the program in any respect

beyond the date set forth in the

legislation. Our actions in the Order

dismissing QUALCOMM’s preference

request and terminating the pioneer’s

preference program as of the date set

forth in section 309(j)(13)(F) as amended

by the Budget Act, August 5, 1997, are

thus fully consistent with our actions in

the Second R&O.

17. Finally, we note that in comments

filed November 12, 1997, Global

Broadcasting Company, Inc. requests

that we ‘‘consider on the merits’’ the

pioneer’s preference request filed by

Web SportsNet, Inc. and Gregory D.

Deieso but also dismissed in our Order.

We are dismissing these comments as an

improperly late-filed petition for

reconsideration of our action dismissing

the preference request, but also note that

we have no authority to grant the relief

requested.

Ordering Clauses

18. Accordingly, it is ordered that the

petition for reconsideration filed on

October 20, 1997 by QUALCOMM

Incorporated is denied. This action is

taken pursuant to sections 4(i) and

303(r) of the Communications Act of

1934, as amended, 47 U.S.C. 154(i) and

303(r).

19. It is further ordered that the

comments filed on November 6, 1997 by

QUALCOMM Incorporated and on

November 12, 1997 by Global

Broadcasting Company, Inc. are

dismissed. This action is taken pursuant

to section 1.429(d) of the Commission’s

rules.

List of Subjects in 47 CFR Part 1

Administrative practice and

procedure.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98–11616 Filed 4–30–98; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF DEFENSE

Department of the Navy

48 CFR Parts 5243 and 5252

RIN 0703–AA34

Adjustments to Prices Under

Shipbuilding Contracts

AGENCY: Department of the Navy, DOD.

ACTION: Final rule.

SUMMARY: The Department of the Navy

(DON) is removing certain regulations

for adjustments to prices under

shipbuilding contracts contained in the

Navy Acquisition Procedures

Supplement (48 CFR part 5243,

§§ 5252.243–9000 and 5252.243–9001).

The National Defense Authorization Act

of Fiscal Year 1998 eliminated the

statutory authority for these rules. Such

rules are now unnecessary and are

removed immediately. Providing for a

comment period before final action in

this case would be unnecessary,

impracticable, and contrary to public

interest. However, DON will accept and

consider comments from interested

persons in evaluating the effect of this

action.

DATES: Effective Date of Removal: May

1, 1998.

Comment Date: Comments on this

removal action should be submitted in

writing to the address shown below on

or before June 30, 1998.

ADDRESSES: Interested parties should

submit written comments to Department

of the Navy, Office of the Assistant

Secretary of the Navy (Research,

Development and Acquisition)

Acquisition and Business Management,

2211 South Clark Place, Arlington,

Virginia, 22244–5104.

FOR FURTHER INFORMATION CONTACT: Mr.

Michael G. Shaffer, (703)602–1263.

SUPPLEMENTARY INFORMATION:

A. Background

The Department of Defense

Authorization Act, 1985 (Pub. L. 98–525

§ 1234(a), 98 Stat. 2604, Oct. 19, 1984)

established certain limitations on price

adjustments made to shipbuilding

contracts, which were codified at 10

U.S.C. 2405. The DON published

proposed rules to implement the

requirements of 10 U.S.C. 2405 in the

Federal Register on Nov. 16, 1989 (54

FR 47689). A correction and extension

of the public comment period was

published in the Federal Register on

Feb. 2, 1990 (55 FR 3603). Revised

proposed rules and notice of additional

public comment period and public

hearing were published in the Federal

Register on Jun. 29, 1990 (55 FR 26708).

Extension of the public comment period

and rescheduling of the public hearing

were published in the Federal Register

on Aug. 16 and Oct. 26, 1990 (55 FR

33541 and 43150). An interim rule and

request for comments was published in

the Federal Register on Dec. 5, 1991 (56

FR 63664). This interim rule added to

title 48 of the Code of Federal

Regulations a new Part 5243, as well as

new §§ 5252.243–9000 and 5252.243–

9001, and was made effective on Dec. 5,

1991. No final rule was published.

Section 810 of the National Defense

Authorization Act for Fiscal Year 1998

(Pub. L. 105–85, 111 Stat. 1839, Nov. 18,

1997) repealed 10 U.S.C. 2405, making

the Navy’s implementing regulations

contained in 48 CFR parts 5243 and

5252 unnecessary. For this reason, the

Navy is now removing and reserving 48

CFR part 5243 in its entirety, as well as

§§ 5252.243–9000 and 5252.243–9001.

While the Navy is removing part 5243

in its entirety from the Code of Federal

Regulations, information and policy

statements regarding contract

modifications remain in part 5243 of the

Navy Acquisition Procedures

Supplement (‘‘NAPS’’), which may be

accessed at www.abm.rda.hq.navy.mil/

naps, or by contacting the office listed

in the ADDRESSES block.

B. Determination To Remove Without

Prior Public Comment

This removal action is being issued as

a final rule without a public comment

period as an exception to the DON’s

standard practice of soliciting comments

during the rulemaking process.

Providing a period for public comment

in this case would be unnecessary,

impracticable, and contrary to the

public interest. This determination is

based on two factors. First, removal of

these rules is entirely administrative

and corrective in nature, not requiring

the exercise of agency discretion.

Second, to allow these rules to remain

in the Code of Federal Regulations any

longer may mislead and confuse the

public regarding statutory requirements

relating to adjustments of any price

under a shipbuilding contract for the

amount set forth in a claim, request for

equitable adjustment, or demand for

payment.

C. Matters of Regulatory Procedure

Executive Order 12866, Regulatory

Planning and Review

Removal of these rules does not meet

the definition of ‘‘significant regulatory

action’’ for purposes of E.O. 12866.
24130 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 /Rules and Regulations

Regulatory Flexibility Act

Removal of these rules will not have

a significant economic impact on a

substantial number of small entities for

purposes of the Regulatory Flexibility

Act (5 U.S.C. chapter 6).

Paperwork Reduction Act

Removal of these rules will not

impose collection of information

requirements for purposes of the

Paperwork Reduction Act (44 U.S.C.

chapter 35, 5 CFR Part 1320).

List of Subjects in 48 CFR Parts 5243

and 5252

Government procurement.

Dated: April 22, 1998.

Michael I. Quinn,

Commander, Judge Advocate General’s Corps,

U.S. Navy, Federal Register Liaison Officer.

Under the authority of Sec. 810 of

Pub. L. 105–85, and for the reasons set

forth in the preamble, remove and

reserve part 5243 and Sections

5252.243–9000 and 5252.243–9001 of

title 48 of the Code of Federal

Regulations.

[FR Doc. 98–11592 Filed 4–30–98; 8:45 am]

BILLING CODE 3810–FF–P

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[FRA Docket No. PB–9, Notice No. 11]

RIN 2130–AB22

Two-Way End-of-Train Telemetry

Devices and Certain Passenger Train

Operations

AGENCY: Federal Railroad

Administration (FRA), DOT.

ACTION: Final rule.

SUMMARY: FRA is revising the

regulations regarding the use and design

of two-way end-of-train telemetry

devices (two-way EOTs) to specifically

address certain passenger train

operations where multiple units of

freight-type equipment, material

handling cars, or express cars are part of

a passenger train’s consist. Trains of this

nature are currently being operated by

the National Railroad Passenger

Corporation (Amtrak), and these

revisions are intended to clarify and

address the applicability of the two-way

EOT requirements to these types of

operations.

EFFECTIVE DATE: This rule is effective

May 1, 1998.

ADDRESSES: Any petition for

reconsideration should identify the

docket number and the notice number

and must be submitted in triplicate to

the Docket Clerk, Office of Chief

Counsel, FRA, 400 Seventh Street, S.W.,

Stop 10, Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT:

James Wilson, Motive Power and

Equipment Division, Office of Safety,

RRS–14, FRA, 400 Seventh Street, S.W.,

Stop 25, Washington, D.C. 20590

(telephone 202–632–3367), or Thomas

Herrmann, Trial Attorney, Office of the

Chief Counsel, RCC–12, FRA, 400

Seventh Street, S.W., Stop 10,

Washington, D.C. 20590 (telephone

202–632–3178).

SUPPLEMENTARY INFORMATION:

Background

On January 2, 1997, FRA published a

final rule amending the regulations

governing train and locomotive power

braking systems at 49 CFR part 232 to

add provisions pertaining to the use and

design of two-way end-of-train

telemetry devices (two-way EOTs). See

62 FR 278. The purpose of the revisions

was to improve the safety of railroad

operations by requiring the use of twoway EOTs on a variety of trains

pursuant to 1992 legislation, and by

establishing minimum performance and

operational standards related to the use

and design of the devices. See Pub. L.

No. 102–365 (September 3, 1992); 49

U.S.C. 20141.

The regulations published on January

2, 1997, regarding two-way EOTs,

provided an exception from the

requirements for ‘‘passenger trains with

emergency brakes.’’ See 49 CFR

232.23(e)(9). The language used in this

exception was extracted in total from

the statutory exception contained in the

statutory provisions mandating that

FRA develop regulations addressing the

use and operation of two-way EOTs or

similar technology. See 49 U.S.C.

20141(c)(2). A review of the legislative

history reveals that there was no

discussion by Congress as to the precise

meaning of the phrase ‘‘passenger trains

with emergency brakes.’’ Consequently,

FRA is required to effectuate Congress’

intent based on the precise language

used in that and the other express

exceptions and based on the overall

intent of the statutory mandate. See 49

U.S.C. 20141(c)(1)–(c)(5). Furthermore,

any exception contained in a specific

statutory mandate should be narrowly

construed. See Chesapeake & Ohio Ry.

v. United States, 248 F. 85 (6th Cir.

1918) cert. den., 248 U.S. 580; DRG R.R.

v. United States, 249 F. 822 (8th Cir.

1918); United States v. ATSF Ry., 156

F.2d 457 (9th Cir. 1946).

The intent of the statutory provisions

related to two-way EOTs was to ensure

that trains operating at a speed over 30

mph or in heavy grade territory were

equipped with the technology to

effectuate an emergency application of

the train’s brakes starting from both the

front and rear of the train. The specific

exceptions contained in the statute were

aimed at trains (i) that do not operate

within the express parameters or (ii)

that are equipped or operated in a

fashion that provides the ability to

effectuate an emergency brake

application that commences at the rear

of the train without the use of a two-way

EOT. See 49 U.S.C. 20141(c)(1)–(c)(5).

Based on the intent of the statute and

based upon a consistent and narrow

construction of the specific language

used by Congress in the express

exceptions, FRA believes it is clear that

Congress did not intend the phrase

‘‘passenger trains with emergency

brakes’’ to constitute a blanket

exception for all passenger trains. If that

was Congress’ intent, it would not have

added the qualifying phrase ‘‘with

emergency brakes.’’

In FRA’s view, this language limits

the specific statutory exception to

passenger trains equipped with a

separate emergency brake valve in each

car throughout the train and, thus, to

passenger trains possessing the ability to

effectuate an emergency application of

the train’s brakes from the rear of the

train. Therefore, passenger trains that

include RoadRailers, auto racks,

express cars, or other similar vehicles

designed to carry freight that are placed

at the rear of the train, that are not

equipped with emergency brake valves,

would not fall within the specific

statutory or regulatory exception as they

are incapable of effectuating an

emergency brake application that

commences at the rear of the train.

Further, FRA does not believe that

Congress envisioned a significant

number of express or intermodal cars

being hauled at the rear of passenger

trains when the specific exception was

included in the statute.

FRA believes that Congress intended

to except only those trains traditionally

considered to be passenger trains, which

would include passenger trains

containing baggage and mail cars as

these have consistently been considered

passenger equipment with emergency

brakes. However, passenger trains

which operate with numerous

inaccessible baggage or mail cars

attached to the rear of the train that lack

any ability to effectuate an emergency

brake application from the rear of the