        DEPARTMENT OF TRANSPORTATION
        Federal Railroad Administration
        49 CFR Part 236
        [Docket No. FRA-2011-0028, Notice No. 1]
        RIN 2130-AC27
        Positive Train Control Systems

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

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          FRA proposes amendments to the regulations implementing a provision of the Rail Safety Improvement Act of 2008 that requires certain passenger and freight railroads to install positive train control (PTC) systems. This notice proposes the removal of various regulatory requirements that require railroads to either conduct further analyses or meet certain risk-based criteria in order to avoid PTC system implementation on track segments that do not transport poison- or toxic-by-inhalation (PIH) hazardous materials traffic and are not used for intercity or commuter rail passenger transportation as of December 31, 2015.

          DATES:
          (1) Written comments must be received by October 24, 2011. Comments received after that date will be considered to the extent possible without incurring additional expenses or delays.

          (2) FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to September 23, 2011, one will be scheduled, and FRA will publish a supplemental notice in the Federal Register to inform interested parties of the date, time, and location of any such hearing.

          ADDRESSES:

            Comments: Comments related to Docket No. FRA-2011-0028, may be submitted by any of the following methods:
          • Web Site: Comments should be filed at the Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Fax: 202-493-2251.
          • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 20590.
          • Hand Delivery: Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

            Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to http://www.regulations.gov, including 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 http://www.regulations.gov at any time or to Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays.

          FOR FURTHER INFORMATION CONTACT:

          Thomas McFarlin, Office of Safety Assurance and Compliance, Staff Director, Signal & Train Control Division, Federal Railroad Administration, Mail Stop 25, West Building 3rd Floor West, Room W35-332, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone: 202-493-6203); or Jason Schlosberg, Trial Attorney, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-207, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone: 202-493-6032).

        SUPPLEMENTARY INFORMATION:
        FRA is issuing this proposed rule to amend the regulatory requirements contained in 49 CFR part 236, subpart I, related to a railroad's ability to remove track segments from the necessity of implementing PTC as mandated by Section 104 of the Railroad Safety Improvement Act of 2008, Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 49 U.S.C. 20157) (hereinafter “RSIA”) based on the track segments not carrying PIH traffic as of December 31, 2015.
        Table of Contents for Supplementary Information

          I. Executive Summary
          II. Background
          A. Regulatory History
          B. Litigation, Executive Order 13563, and Congressional Hearings
          III. Section-by-Section Analysis
          IV. Regulatory Impact and Notices
          A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures
          B. Regulatory Flexibility Act and Executive Order 13272
          C. Paperwork Reduction Act
          D. Federalism Implications
          E. Environmental Impact
          F. Unfunded Mandates Reform Act of 1995
          G. Energy Impact
          H. Privacy Act

        I. Executive Summary

        For years, FRA has supported the nationwide proliferation and implementation of positive train control (PTC) systems, forecasting substantial benefits of advanced train control technology in supporting a variety of business and safety purposes. However, FRA repetitively noted that an immediate regulatory mandate for PTC system implementation could not be justified based upon normal cost-benefit principals relying on direct safety benefits. In 2005, FRA promulgated regulations providing for the voluntary implementation of processor-based train control systems. See 70 FR 11,052 (Mar. 7, 2005) (codified at 49 CFR part 236, subpart H).
        As a consequence of the number and severity of certain very public accidents, coupled with a series of other less publicized accidents, Congress passed RSIA mandating the implementation of PTC systems on lines meeting certain thresholds. RSIA requires PTC system implementation on all Class I railroad lines that carry PIH materials and 5 million gross tons or more of annual traffic, and on any railroad's main line tracks over which intercity or commuter rail passenger train service is regularly provided. In addition, RSIA provided FRA with the authority to require PTC system implementation on any other line.
        In accordance with its statutory authority, FRA's subsequent final rule, issued January 15, 2010, and amended on September 27, 2010, potentially required PTC system implementation on certain track segments that carried PIH traffic and 5 million gross tons or more of annual traffic in 2008 but that will not carry PIH traffic, and will not be used for intercity or commuter rail passenger transportation, as of December 31, 2015. Per the regulation, the determination would be based upon whether the subject track segment would pass what has been called the alternative route analysis and the residual risk analysis (the “two qualifying tests”).
        Upon issuance of the PTC final rule, the Association of American Railroads (AAR) filed suit in the U.S. Court of Appeals for the District of Columbia Circuit challenging the two qualifying tests provisions of the final rule. After the parties filed their briefs, they executed a settlement agreement (Settlement Agreement). In the Settlement Agreement, FRA agreed to issue a notice of proposed rulemaking (NPRM) proposing to amend the PTC rule to eliminate the two qualifying tests; this NPRM fulfills this requirement. The Settlement Agreement further provided that FRA would consider public comments on the NPRM in determining whether to amend the PTC rule.
        For the first 20 years of the proposed rule, the estimated quantified benefits to the industry due to the proposed regulatory relief total approximately $620 million discounted at 7 percent and $818 million discounted at 3 percent. Substantial cost savings would accrue largely from not installing PTC system wayside components along approximately 10,000 miles of track. Although these rail lines would forego some risk reduction, the reductions would likely be small since these lines pose a much lower risk of accidents because they generally do not carry passenger trains or PIH materials and generally have lower accident exposure. The analysis shows that if the assumptions are correct, the savings of the proposed action far outweigh the cost. The following table presents the quantified benefits:

          Benefits
          [20-year, discounted]

            Costs avoided
            7% Discount
            3% Discount

            Reduced Mitigation Costs, Including Maintenance
            $91,793,822
            $121,119,324

            Reduced Wayside Costs, Including Maintenance
            515,695,631
            680,445,643

            Reduced Locomotive Costs, Including Maintenance
            12,479,834
            16,466,785

            Total Benefits
            619,969,287
            818,031,752

        For the same 20-year period, the estimated quantified cost totals $26.7 million discounted at 7 percent and $39.3 million discounted at 3 percent. The costs associated with the proposed regulatory relief result from the reduction of safety benefits in the form of accident reduction due to the affected track segments not being equipped with a PTC system. A substantial part of the accident reduction that FRA expects from PTC systems currently required comes from reducing high-consequence accidents involving passenger trains or the release of PIH materials. FRA believes that the lines impacted by this proposal pose significantly less risk because they generally do not carry passenger trains or PIH materials and generally have lower accident exposure. The following tables present the total costs of the proposed rule as well as the breakdown of the costs by element:

          Costs
          [20-year, discounted]

            Foregone reductions in
            7% Discount
            3% Discount

            Fatality Prevention
            $11,453,106
            $16,860,327

            Injury Prevention
            4,254,484
            6,263,104

            Train Delay
            117,793
            173,406

            Property Damage
            10,163,835
            14,962,367

            Equipment Cleanup
            143,273
            210,915

            Environmental Cleanup
            430,995
            634,475

            Evacuations
            138,780
            204,301

            Total Costs
            26,702,267
            39,308,896

        FRA has also performed a sensitivity analysis for a high case (14,000 miles), expected case (10,000 miles), and low case (7,000 miles).

        The net amounts for each case, subtracting the costs from the benefits, provide the following results:

            Net societal benefits
            7% Discount
            3% Discount

            Expected Case (10,000 miles)
            $593,267,020
            $778,722,856

            High Case (14,000 miles)
            793,856,299
            1,041,764,269

            Low Case (7,000 miles)
            442,825,061
            581,441,797

        Further, the benefit-cost ratios under the scenarios analyzed range between 20:1 and 25:1.

            Benefit-cost ratio
            7%Discount

            3%Discount

            Expected Case
            23.22
            20.81

            High Case
            22.24
            19.93

            Low Case
            24.69
            22.13

        II. Background
        A. Regulatory History
        As a consequence of the number and severity of certain widely publicized accidents, coupled with a series of other accidents receiving less media attention, Congress passed RSIA, mandating implementation of PTC systems by December 31, 2015. 75 FR 2598 (Jan. 15, 2010). Under RSIA, such PTC implementation must be completed by each Class I railroad carrier and each entity providing regularly scheduled intercity or commuter rail passenger transportation on:
        (A) Its main line over which intercity rail passenger transportation or commuter rail passenger transportation, as defined in section 24102, is regularly provided;
        (B) its main line over which PIH or TIH hazardous materials, as defined in parts 171.8, 173.115, and 173.132 of title 49, Code of Federal Regulations, are transported; and
        (C) such other tracks as the Secretary may prescribe by regulation or order.

        49 U.S.C. 20157(a)(1). The statute further defined “main line” to mean:

        A segment or route of railroad tracks over which 5,000,000 or more gross tons of railroad traffic is transported annually, except that—
        (A) The Secretary may, through regulations under subsection (g), designate additional tracks as main line as appropriate for this section; and
        (B) for intercity rail passenger transportation or commuter rail passenger transportation routes or segments over which limited or no freight railroad operations occur, the Secretary shall define the term “main line” by regulation.

        49 U.S.C. 20157(i)(2). To effectuate this goal, RSIA required the railroads to submit for FRA approval a PTC Implementation Plan (PTCIP) within 18 months (i.e., by April 16, 2010).

        Consistent with this statutory mandate, FRA published a final rule with a request for further comments on January 15, 2010, which established new regulations codified primarily in subpart I to 49 CFR part 236 (the “PTC rule”). Subsequently, FRA received a number of petitions for reconsideration to the final rule and a number of comments responding to the request for further comments. In a letter dated July 8, 2010, FRA denied all of the petitions for reconsideration. On September 27, 2010, FRA issued a new final rule with clarifying amendments to the PTC rule.

        Under the current regulations applicable to the existing railroads, each PTCIP must have included the sequence and schedule in which track segments required to be equipped with PTC will be so equipped and the basis for those decisions. See 49 CFR 236.1011. This list of track segments must have included all track segments that fit the statutory criteria in calendar year 2008. See 49 CFR 236.1005(b)(1) and (b)(2).
        While the statutory PTC implementation deadline is December 31, 2015, FRA recognized a need for a starting point in time to determine where such implementation must occur. The final rule indicates that such a starting baseline should be based on the facts and data known in calendar year (CY) 2008 (the “2008 baseline”). FRA determined that using CY 2009 data would have been difficult given the proximity to the PTCIP submission deadline and the notably atypical traffic levels caused by the down turn in the economy. Although each railroad's initial PTCIP includes a future PTC implementation route map reflecting 2008 data, FRA recognized that traffic levels and PIH routings could change in the period between the end of 2008 and the start of 2016. Accordingly, in the event of changed circumstances, the PTC rule provides railroads with the option to file a request for amendment (RFA) of its PTCIP to not equip a track segment that the railroad was initially, but may no longer be, required to implement a PTC system. If a particular track segment included in a PTCIP will no longer carry PIH traffic by the statutory implementation deadline, and its PTC system implementation is scheduled, but not yet effectuated, then the host railroad might avoid actual PTC system implementation by filing a supported RFA for FRA approval. Each such RFA must be supported with the data defined under § 236.1005(b)(2) and (b)(4)(i), and satisfy the two qualifying tests that were promulgated under FRA's statutory authority to require PTC to be installed on lines in addition to those required to be equipped by RSIA. If a track segment fails either of these tests, FRA would deny the request, thus requiring PTC system implementation on the track segment.

        The first test, proverbially known as the “alternative route analysis test,” was initially codified at § 236.1005(b)(4)(i)(A) and subsequently moved to a new § 236.1020. Under this test, the railroad must establish that current or prospective rerouting of PIH materials traffic to one or more alternative track segments is justified. If a railroad reroutes all PIH materials off of a track segment requiring PTC system implementation under the 2008 baseline, and onto a new line, PTC system implementation on the initial line may not be required if the new line would have substantially the same overall safety and security risk as the initial line, assuming PTC implementation on both lines. If the initial track segment, despite the elimination of all PIH materials traffic, is determined to pose higher overall safety and security risks under this analysis, then a PTC system must still be installed on that initial track segment. PTC system implementation may also be required on the new line if it meets the 5 million gross ton of annual traffic threshold and does not qualify under the de minimis exception of the rule.

        The second test that the railroad must satisfy in order to avoid having to install a PTC system on a track segment requiring implementation under the 2008 baseline is the so-called “residual risk test.” Under this test, the railroad must show that, without a PTC system, the remaining risk on the track segment—pertaining to events that can be prevented or mitigated in severity by a PTC system—is less than the national average equivalent risk per route mile on track segments required to be equipped with PTC systems due to statutory reasons other than passenger traffic presence. When FRA issued its PTC rule amendments on September 27, 2010, FRA indicated that it was delaying the effective date of 49 CFR 236.1005(b)(4)(i)(A)(2)(iii), as revised under § 236.1020, pending the completion of a separate rulemaking to establish how residual risk is to be determined.
        B. Litigation, Executive Order 13563, and Congressional Hearings
        After FRA issued its PTC final rule on January 15, 2010, and denied reconsideration on July 8, 2010, the AAR filed a petition for review of the rule with the U.S. Court of Appeals for the District of Columbia. Once FRA issued its PTC final rule amendments, AAR filed another petition for review of those amendments on October 5, 2010. The court consolidated those two petitions on October 22, 2010 (collectively, “Petition for Review”).
        In its brief, AAR challenged FRA's determination to use 2008 as the baseline year, arguing that it rests on a fundamental legal error and was arbitrary and capricious. After the parties fully briefed the issues, President Obama issued Executive Order 13563 on January 18, 2011 (76 FR 3821 (Jan. 21, 2011)), which outlined a plan to improve regulations and regulatory review. According to the Order, it is intended to reaffirm and build upon governing principles of contemporary regulatory review, including Executive Order 12866 (Sept. 30, 1993), by requiring federal agencies when issuing safety regulations to design the regulations so that they are cost-effective, evidence-based, and compatible with economic growth, job creation, and competitiveness. The President's plan recognizes that these principles apply to both new and existing regulations. To that end, Executive Order 13563 requires agencies to review existing significant regulations to determine if they are outmoded, ineffective, insufficient, or excessively burdensome. FRA recognizes that the costs associated with PTC rule compliance outweigh the safety benefits by 20-to-1 and, therefore, it is appropriate to reexamine whether FRA should be requiring the installation of PTC on lines that will not be carrying PIH traffic or regularly scheduled passenger service as of December 31, 2015.
        FRA and AAR entered into the Settlement Agreement on March 2, 2011. The terms and conditions of the Settlement Agreement included the joint filing of a motion to hold the Petition for Review in abeyance pending the completion of this rulemaking. That motion was filed on March 2, 2011, and was granted by the court on March 3, 2011.

        The Settlement Agreement provides that FRA will issue two NPRMs. The first NPRM is to address whether the PTC rule should be amended by eliminating the two aforementioned tests that would potentially require PTC to be installed on track segments not specifically required to be equipped by Congress. This NPRM meets that requirement. The Settlement Agreement provides that upon the completion of this rulemaking proceeding, the parties will determine whether to file a joint motion to dismiss the lawsuit in its entirety. The Settlement Agreement also states that FRA is to issue a separate NPRM that will address the issues of how to handle en-route failures of PTC-equipped trains, circumstances under which a signal system may be removed after PTC installation, and whether yard movements and certain other train movements should qualify for a de minimis risk exception to the PTC rule. The second NPRM will also address any other issues that might be raised by interested parties in a properly filed petition for rulemaking under 49 CFR part 211. The Settlement Agreement notes that FRA will consider all comments submitted during the rulemaking comment periods on each of those NPRMs in determining whether to issue amendments to the PTC rule and, if so, the contents of those amendments. Although this NPRM and its associated regulatory impact analysis seek comments relating to the two qualifying tests, it does not seek comments on the issues that will be reserved for the other forthcoming NPRM.
        On March 17, 2011, FRA and AAR testified before the Subcommittee on Railroads, Pipelines, and Hazardous Materials, Committee on Transportation and Infrastructure, U.S. House of Representatives. In addition to reporting on the Settlement Agreement, FRA's testimony discussed PTC system implementation planning and progress made thus far and highlighted the various ways that FRA has assisted the industry in meeting the statutory and regulatory goals. In particular, FRA has supported PTC implementation by developing and approving certain implementation exceptions, providing technical assistance, and granting financial assistance.
        During its testimony, made jointly with Norfolk Southern Railway (NS), AAR asserted that, “If unchanged, the 2008 base-year provision means railroads would have to spend more than $500 million in the next few years to deploy PTC on more than 10,000 miles of rail lines on which neither passenger nor TIH materials will be moving in 2015.” 1
           FRA understands AAR to assume that these 10,000 miles would still require PTC implementation because they would not be able to pass the alternative route analysis and residual risk analysis tests. If this is not correct, FRA seeks AAR's clarification. However, upon its own analysis, FRA assumes that 50 percent of the 10,000 miles would be able to pass both tests with the implementation of mitigation measures. FRA seeks comment on this assumption.

            1 Hearing Before the Subcommittee on Railroads, Pipelines, and Hazardous Materials of the Transportation and Infrastructure Committee, U.S. House of Representatives, 112th Cong. (2011) (Joint statement of Edward R. Hamberger, President and Chief Executive Officer of the AAR, and Mark D. Manion, Executive Vice President and Chief Operating Officer of the Norfolk Southern Railway, on behalf of the AAR's member railroads) [hereinafter AAR Congressional Testimony].

        Under the regulatory impact analysis (RIA) that accompanied the PTC final rule, FRA estimated that the railroads would need to implement PTC systems on approximately 70,000 miles of track. However, PTC system implementation could be avoided on 3,204 miles of those 70,000 miles of track because PIH materials traffic will have ceased by 2015 and the subject track segments would pass the residual risk analysis and alternative route analysis tests. During the earlier rulemakings, no entity, including AAR and NS, challenged or otherwise commented on these conclusions.

        FRA also estimated that PTC system implementation could be avoided on 304 miles of track because gross tonnage will fall below 5 million gross tons per year, or passenger service would end so that neither of the two tests above would apply. Between the two categories, FRA estimated that railroads could exclude more than 3,500 miles. Assuming that the 3,500 miles represents about 50% of those tracks where PIH materials traffic will have ceased, FRA was implicitly estimating that there would be about 7,000 miles of track where PIH materials traffic will have ceased. The AAR and its members appear to have been more effective in the future reduction of PIH materials traffic than FRA had initially estimated based on AAR's congressional testimony and subsequent submissions to FRA. In its analysis of this NPRM, FRA estimates that PIH traffic will cease on 10,000 miles of track on which PTC systems would have been required had the traffic not ceased. FRA considers cases where 7,000 miles, 10,000 miles and, for sensitivity, 14,000 miles of track might be excluded from PTC requirements because of changes in PIH traffic. As FRA was completing its analysis of this proposal, AAR submitted data that indicates its member railroads believe that they can cease PIH traffic on 11,128 miles of track, of which 9,566 miles have no passenger traffic. Some of the passenger traffic miles may later qualify for exclusion from the system on which PTC is required. For more discussion of those miles from which PIH traffic is removed, but on which passenger traffic remains, see FRA's Regulatory Impact Assessment, in this rulemaking docket. FRA seeks comments and information on the accuracy and likelihood of estimated changes in PIH traffic.
        III. Section-by-Section Analysis
        Unless otherwise noted, all section references below refer to sections in title 49 of the Code of Federal Regulations (CFR). FRA seeks comments on all proposals made in this NPRM.
        Proposed Amendments to 49 CFR Part 236
        Section 236.1003 Definitions
        FRA currently defines PIH materials within the rule text at § 236.1005(b)(1)(i), which some may find difficult to locate. Accordingly, for the purposes of clarity, FRA proposes to add the definition for PIH materials to the definitions section of subpart I. The inclusion of this definition in § 236.1003 would not change the meaning of the term as understood under § 236.1005(b)(1)(i) or its cross-referenced §§ 171.8, 173.115, and 173.132.
        Section 236.1005 Requirements for Positive Train Control Systems
        In this NPRM, FRA is proposing the elimination of the alternative route analysis and the residual risk analysis tests. When initially published in the PTC rule on January 15, 2010, these provisions were included in § 236.1005(b). On September 27, 2010, FRA issued amendments to the PTC rule, moving the text to a new § 236.1020 and providing more clarifying language. To ensure continuity and understanding, however, § 236.1005 contained various cross-references to § 236.1020. As indicated below, FRA is proposing to eliminate § 236.1020. Accordingly, FRA also proposes rule text changes to § 236.1005 by removing those cross-references.
        Section 236.1020 Exclusion of Track Segments for Implementation Due to Cessation of PIH Materials Traffic
        As previously noted, the current PTC rule requires that, for each RFA seeking to exclude a track segment from PTC system implementation due to the cessation of PIH materials traffic, a railroad must satisfy both an alternative route analysis, and eventually a residual risk analysis test, in order to secure FRA's approval. FRA's cost benefit analysis of the PTC rule indicates that the railroads will incur approximately $20 in PTC costs for each $1 in PTC safety benefits. In its congressional testimony, AAR testified that 2010 was the safest year for America's railroads, that railroads have lower employee injury rates than most other major industries, that only around 4 percent of all train accidents on Class I main lines are likely to be prevented by PTC systems, and that there are many far less costly ways to provide greater improvements in rail safety than through the implementation of PTC systems on lines not required by Congress to be equipped.2
           According to the testimony, if the PTC rule remains unchanged, railroads may be required to spend more than $500 million in the next few years to deploy PTC systems on more than 10,000 miles of rail lines on which neither passengers nor PIH materials will be transported as of December 31, 2015.

            2 See AAR Congressional Testimony, at 8-9.

        While FRA believes that the alternative route analysis and residual risk tests are legally sustainable, it recognizes that these tests could potentially require the installation of PTC systems at a great cost to the railroads. FRA also recognizes that the railroads have much work to do to have interoperable PTC systems installed in accordance with the congressional mandate. FRA is, therefore, proposing to eliminate the tests that would potentially require the installation of PTC systems on lines not specifically mandated by Congress.
        FRA seeks comments from interested parties on the proposed removal of the alternative route analysis from the PTC rule. FRA also seeks comments on the proposed removal of the residual risk analysis. If FRA were to remove these requirements, it proposes doing so by eliminating § 236.1020 as it currently exists. While FRA is proposing the removal of these analyses from the PTC rule, FRA reserves its statutory and regulatory authority to require PTC system implementation on additional track segments in the future based on risk levels or other rational bases.
        IV. Regulatory Impact and Notices
        A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures

        This proposed rule has been evaluated in accordance with existing policies and procedures, and determined to be significant under Executive Order 12866, Executive Order 13563 and DOT policies and procedures. 44 FR 11,034 (Feb. 26, 1979). We have prepared and placed in the docket a regulatory impact analysis (RIA) addressing the economic impact of this NPRM. FRA is proposing the removal of various regulatory requirements that require railroads to meet two tests in order to avoid PTC system implementation on track segments that were used to transport PIH traffic and carried five million gross tons of annual traffic in 2008, but that will not transport PIH materials traffic and the applicable passenger traffic as of December 31, 2015. Substantial cost savings would accrue largely from not installing PTC system wayside components or other mitigations along approximately 10,000 miles of track. Although these rail lines would forego some risk reduction, the reductions would likely be small since these lines pose a much lower risk of accidents because they generally do not carry passenger trains or PIH materials and generally have lower accident frequency and severity, because the lines have relatively lower traffic volumes than the average segment on which PTC systems will be required, based on FRA's review of the data submitted by AAR. The analysis shows that if the assumptions are correct, the savings to the industry in the form of regulatory relief as proposed far outweigh the cost associated with increased accident exposure.

        The largest part of the cost savings benefit comes from reducing the extent of wayside that must be equipped with PTC. Some of these lines would have qualified for exemption by passing the two tests contained in the 2010 PTC final rule, while others may not have. In addition, benefits would come from reducing the number of locomotives belonging to Class II and Class III (small) railroads that must be equipped with PTC systems, because they run on Class I railroads' track that will no longer need to be equipped with PTC systems. Although these benefits would be small relative to the wayside equipment savings, they would be large relative to the size of the railroads being impacted. The tables below present the total estimated cost savings benefits of the proposed rule, assuming installation or additional mitigation measures would no longer be required along 10,000 miles of track. The analysis assumes that 5,000 miles of track would have passed both tests with some mitigation measures being taken, and the remaining 5,000 miles would not have passed both tests and would have required PTC system implementation under the current rules.

          Benefits
          [20-year, discounted]

            Costs avoided
            7% Discount
            3% Discount

            Reduced Mitigation Costs, Including Maintenance
            $91,793,822
            $121,119,324

            Reduced Wayside Costs, Including Maintenance
            515,695,631
            680,445,643

            Reduced Locomotive Costs, Including Maintenance
            12,479,834
            16,466,785

            Total Benefits
            619,969,287
            818,031,752

        Total costs may also be broken down into initial investment and maintenance costs. Although railroads may already have spent money to install and maintain PTC systems, FRA assumes here that those funds have not been spent on the lines considered here, as they tend to be lower volume, lower priority lines, and FRA assumes that the railroads would not install PTC systems on those lines until 2014, at the earliest, in the absence of this rulemaking. FRA seeks comment on this assumption. FRA estimates that avoiding installation on 10,000 miles would let railroads avoid $300.5 million in initial installation costs (not discounted). Maintenance cost savings would total $366.0 million (discounted at 7%) or $538.9 million (discounted at 3%). Maintenance includes all of the activities and subsequent purchases needed to operate the PTC system over its life-cycle, and to maintain its proper functioning, reliability, and availability. Maintenance includes training, system inspection, testing, adjustments, repair, and replacement of components. Replacement components can be very expensive in processor-based systems with relatively small installed bases, such as PTC. PTC systems are not installed in great enough numbers to justify a processor manufacturer making a processor just for PTC. PTC systems developers must use standard processors, and over time those processors usually become obsolete and are no longer supported or manufactured. Then the PTC system developer must redesign and re-test the PTC system to ensure it will continue to operate safely and reliably with the new processor.
        Costs associated with the proposed regulatory relief will come from reducing the potential for accident reduction. A substantial part of the accident reduction that FRA expects from PTC systems currently required comes from reducing high-consequence accidents involving passenger trains or the release of PIH materials. FRA believes that the track segments impacted by this proposal pose significantly less risk because they generally do not carry passenger trains or PIH materials and generally have lower accident frequency and severity, as discussed above, because the lines have relatively lower traffic volumes and track speeds than the average segment on which PTC systems will be required, based on FRA's review of the data submitted by AAR. The following tables present the total costs of the proposed rule as well as the breakdown of the costs by element.

          Costs
          [20-year, discounted]

            Foregone reductions in
            7% Discount
            3% Discount

            Fatality Prevention
            $11,453,106
            $16,860,327

            Injury Prevention
            4,254,484
            6,263,104

            Train Delay
            117,793
            173,406

            Property Damage
            10,163,835
            14,962,367

            Equipment Cleanup
            143,273
            210,915

            Environmental Cleanup
            430,995
            634,475

            Evacuations
            138,780
            204,301

            Total Costs
            26,702,267
            39,308,896

        The 20-year discounted net benefits (subtracting the costs from the benefits) are expected to be $590 million over 20 years, discounted at 7 percent per year; and $780 million over 20 years, discounted at 3 percent per year. The timing of benefits and costs are such that a large benefit in terms of capital investment is avoided in early years, while the benefit of avoided maintenance and the disbenefit (costs) of accidents not avoided would be realized annually in later years. FRA also assessed the sensitivity of the analysis with respect to scenarios in which railroads may only be able to get relief for 7,000 miles of track and in which railroads may get relief on as many as 14,000 miles of track. Each of these assumes that 50% of the track miles would have passed both tests with some mitigation measures being taken, and that the remaining 50% of the track miles would not have passed both tests and would have required PTC system implementation under the current rules. Such scenarios also show net benefits.

            Net societal benefits
            7% Discount
            3% Discount

            Expected Case (10,000 miles)
            $593,267,020
            $778,722,856

            High Case (14,000 miles)
            793,856,299
            1,041,764,269

            Low Case (7,000 miles)
            442,825,061
            581,441,797

        Further, the benefit-cost ratios under the scenarios analyzed range between 20:1 and 25:1.

            Benefit-cost ratio
            7%Discount

            3%Discount

            Expected Case
            23.22
            20.81

            High Case
            22.24
            19.93

            Low Case
            24.69
            22.13

        The FRA invites comments on all aspects of this analysis, including any costs and benefits regarding this NPRM that may not have been considered in this analysis, and particularly seeks comments on the time frame for installation, maintenance, and realization of costs and benefits.
        B. Regulatory Flexibility Act and Executive Order 13272

        To ensure that the potential impact of this rulemaking on small entities is properly considered, FRA developed this proposed rule in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's policies and procedures to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
        The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant economic impact on a substantial number of small entities.
        As discussed in earlier sections of this preamble, FRA is proposing to amend the regulations implementing a provision of RSIA that requires certain passenger and freight railroads to install PTC systems. Specifically, FRA is proposing the removal of various regulatory requirements that require railroads to either conduct further analyses or meet certain risk-based criteria in order to avoid PTC system implementation on track segments that carried PIH traffic and 5 million or more gross tons of traffic in 2008 but that will not carry PIH hazardous materials traffic as of December 31, 2015.
        FRA is certifying that this proposed rule will result in “no significant economic impact on a substantial number of small entities.” The following section explains the reasons for this certification.
        1. Description of Regulated Entities and Impacts
        The “universe” of the entities under consideration includes only those small entities that can reasonably be expected to be directly affected by the provisions of this rule. In this case, the “universe” would be Class III freight railroads that operate on rail lines that are currently required to have PTC systems installed. Such lines are owned by railroads not considered to be small.
        The U.S. Small Business Administration (SBA) stipulates in its “Size Standards” that the largest a railroad business firm that is “for-profit” may be, and still be classified as a “small entity,” is 1,500 employees for “Line Haul Operating Railroads” and 500 employees for “Switching and Terminal Establishments.” “Small entity” is defined in the Act as a small business that is independently owned and operated, and is not dominant in its field of operation. Additionally, section 601(5) defines “small entities” as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.
        Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final policy that formally establishes “small entities” as railroads which meet the line haulage revenue requirements of a Class III railroad.3
           The revenue requirements are currently $20 million or less in annual operating revenue. The $20 million limit (which is adjusted by applying the railroad revenue deflator adjustment) 4
           is based on the Surface Transportation Board's (STB) threshold for a Class III railroad carrier. FRA is using the STB's threshold in its definition of “small entities” for this rule.

            3 See 68 FR 24891 (May 9, 2003); 49 CFR part 209, app. C.

            4 For further information on the calculation of the specific dollar limit, please see 49 CFR part 1201.

        The proposed regulation would impact Class III railroads that operate on lines of other railroads currently required to have PTC systems installed. To the extent that such host railroads receive relief from such a requirement along certain lines as proposed in this NPRM, Class III railroads that operate over those lines would not have to equip their locomotives with PTC system components. FRA believes that elimination of the two tests for relief from the requirement to install PTC systems as proposed would in effect result in PTC systems not being installed on track segments totaling over 10,000 miles in length. Approximately five small railroads operate locomotives on lines currently required to be equipped with PTC systems, but that would receive relief under the proposed rule. In addition, two Class III railroads operate over railroad crossings (diamonds) that intersect tracks required to be equipped with PTC systems in the absence of changes proposed in this notice. The total of seven affected Class III railroads is not a substantial number of small entities, given that there are 674 small railroads. If this FRA proposal becomes effective, Class III railroads would avoid equipping 28 locomotives with PTC onboard apparatuses at a cost savings of $55,000 per locomotive initially plus maintenance of the PTC equipment. In addition, a Class III railroad would avoid paying for PTC system installation at one railroad-to-railroad crossing, at an initial cost of $80,000 plus annual maintenance. Finally, Class III railroads would avoid operational costs associated with having to reduce operating speeds to cross over two railroad-to-railroad crossings at an annual cost of $43,800. The unit costs presented above for installing PTC systems on locomotives, and at railroad-to-railroad crossings, and the operational costs of operating over a crossing at reduced speed are the values used in the Regulatory Flexibility Analysis of the PTC final rule issued January 15, 2010, and can be found in the docket for that rulemaking. The changes FRA is proposing would benefit the small entities impacted. FRA requests comment on whether the impacts on them would be significant and whether the number of small railroads affected is substantial. The seven railroads affected do not represent a substantial number of railroads out of more than approximately 600 Class III railroads.
        2. Certification

        Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the FRA Administrator certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. FRA requests comment on both this analysis and this certification, and its estimates of the impacts on small railroads.
        C. Paperwork Reduction Act

        The information collection requirements in this proposed rule are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain the current information collection requirements and the estimated time to fulfill each proposed requirement are summarized as follows:

            CFR Section
            Respondent universe
            Total annual responses
            Average time perresponse

            Total annual burden hours

            234.275—Processor-Based Systems—Deviations from Product Safety Plan (PSP)—Letters
            20 Railroads
            25 letters
            4 hours
            100

            236.18—Software Mgmt Control Plan
            184 Railroads
            184 plans
            2,150 hours
            395,600

            —Updates to Software Mgmt. Control Plan
            90 Railroads
            20 updates
            1.50 hours
            30

            236.905—Updates to RSPP
            78 Railroads
            6 plans
            135 hours
            810

            —Response to Request For Additional Info
            78 Railroads
            1 updated doc
            400 hours
            400

            —Request for FRA Approval of RSPP Modification
            78 Railroads
            1 request/modified RSPP
            400 hours
            400

            236.907—Product Safety Plan (PSP)—Dev
            5 Railroads
            5 plans
            6,400 hours
            32,000

            236.909—Minimum Performance Standard.

            —Petitions For Review and Approval
            5 Railroads
            2 petitions/PSP
            19,200 hours
            38,400

            —Supporting Sensitivity Analysis
            5 Railroads
            5 analyses
            160 hours
            800

            236.913—Notification/Submission to FRA of Joint Product Safety Plan (PSP)
            6 Railroads
            1 joint plan
            25,600 hours
            25,600

            —Petitions For Approval/Informational Filings
            6 Railroads
            6 petitions
            1,928 hours
            11,568

            —Responses to FRA Request For Further Info. After Informational Filing
            6 Railroads
            2 documents
            800 hours
            1,600

            —Responses to FRA Request For Further Info. After Agency Receipt of Notice of Product Development
            6 Railroads
            6 documents
            16 hours
            96

            —Consultations
            6 Railroads
            6 consults
            120 hours
            720

            —Petitions for Final Approval
            6 Railroads
            6 petitions
            16 hours
            96

            —Comments to FRA by Interested Parties
            Public/RRs
            7 comments
            240 hours
            1,680

            —Third Party Assessments of PSP
            6 Railroads
            1 assessment
            104,000 hours
            104,000

            —Amendments to PSP
            6 Railroads
            15 amendments
            160 hours
            2,400

            —Field Testing of Product—Info. Filings
            6 Railroads
            6 documents
            3,200 hours
            19,200

            236.917—Retention of Records

            160,000 hrs

            —Results of tests/inspections specified in PSP
            6 Railroads
            3 documents/records
            160,000 hrs.; 40,000 hrs
            360,000

            —Report to FRA of Inconsistencies with frequency of safety-relevant hazards in PSP
            6 Railroads
            1 report
            104 hours
            104

            236.919—Operations & Maintenance Man.

            —Updates to O & M Manual
            6 Railroads
            6 updated docs
            40 hours
            240

            —Plans For Proper Maintenance, Repair, Inspection of Safety-Critical Products
            6 Railroads
            6 plans
            53,335 hours
            320,010

            —Hardware/Software/Firmware Revisions
            6 Railroads
            6 revisions
            6,440 hours
            38,640

            236.921—Training Programs: Development
            6 Railroads
            6 Tr. Programs
            400 hours
            2,400

            —Training of Signalmen & Dispatchers
            6 Railroads
            300 signalmen; 20 dispatchers
            40 hours 20 hours

            12,400

            236.923—Task Analysis/Basic Requirements: Necessary Documents
            6 railroads
            6 documents
            720 hours
            4,320

            —Records
            6 railroads
            350 records
            10 minutes
            58

              SUBPART I—NEW REQUIREMENTS

            —236.1001—RR Development of More Stringent Rules Re: PTC Performance Stds
            46 railroads
            3 rules
            80 hours
            240

            —236.1005—Requirements for PTC Systems.

            —Temporary Rerouting: Emergency Requests
            46 railroads
            50 requests
            8 hours
            400

            —Written/Telephonic Notification to FRA Regional Administrator
            46 railroads
            50 notifications
            2 hours
            100

            —Temporary Rerouting Requests Due to Track Maintenance
            46 railroads
            760 requests
            8 hours
            6,080

            —Temporary Rerouting Requests That Exceed 30 Days
            46 railroads
            380 requests
            8 hours
            3,040

            —236.1006—Requirements for Equipping Locomotives Operating in PTC Territory.

            —Reports of Movements in Excess of 20 Miles/RR Progress on PTC Locomotives
            46 railroads
            45 reports + 45 reports
            8 hours + 170
            8,010

            —PTC Progress Reports
            46 railroads
            35 reports
            16 hours
            560

            —236.1007—Additional Requirements for High Speed Service.

            —Required HSR-125 Documents with approved PTCSP
            46 railroads
            3 documents
            3,200 hours
            9,600

            —Requests to Use Foreign Service Data
            46 railroads
            2 requests
            8,000 hours
            6,000

            —PTC Railroads Conducting Operations at More than 150 MPH with HSR-125 Documents
            46 railroads
            3 documents
            3,200 hours
            9,600

            —Requests for PTC Waiver
            46 railroads
            1 request
            1,000 hours
            1,000

            236.1009-Procedural Requirements.

            —Host Railroads Filing PTCIP or Request for Amendment (RFAs)
            46 Railroads
            1 PCTIP; 20 RFAs
            535 hours; 320 hours
            6,935

            —Jointly Submitted PTCIPs
            46 Railroads
            5 PTCIPs
            267 hours
            1,335

            —Notification of Failure to File Joint PTCIP
            46 Railroads
            1 notification
            32 hours
            32

            —Comprehensive List of Issues Causing Non-Agreement
            46 Railroads
            1 list
            80 hours
            80

            —Conferences to Develop Mutually Acceptable PCTIP
            46 Railroads
            1 conf. calls
            60 minutes
            1 hour

            —Type Approval
            46 Railroads
            2 Type Appr.
            8 hours
            16

            —PTC Development Plans Requesting Type Approval
            46 Railroads
            20 Ltr. + 20 App; 2 Plans
            8 hrs/1600 hrs.; 6,400 hours
            44,960

            —Notice of Product Intent w/PTCIPs (IPs)
            46 Railroads
            3 NPI; 1 IP
            1,070 + 535 hrs
            3,745

            —PTCDPs with PTCIPs (DPs + IPs)
            46 Railroads
            1 DP
            2,135 hours
            2,135

            —Updated PTCIPs w/PTCDPs (IPs + DPs)
            46 Railroads
            1 IP; 1 DP
            535 + 2,135 hrs
            2,670

            —Disapproved/Resubmitted PTCIPs/NPIs
            46 Railroads
            1 IP + 1 NPI
            135 + 270 hrs
            405

            —Revoked Approvals—Provisional IPs/DP
            46 Railroads
            IP + 1 DP
            135 + 535 hrs
            670

            —PTC IPs/PTCDPs Still Needing Rework
            46 Railroads
            1 IP + 1 DP
            135 + 535 hrs
            670

            —PTCIP/PTCDP/PTCSP Plan Contents—Documents Translated into English
            46 Railroads
            1 document
            8,000 hours
            8,000

            —Requests for Confidentiality
            46 Railroads
            46 ltrs; 46 docs
            8 hrs.; 800 hrs
            37,168

            —Field Test Plans/Independent Assessments—Req. by FRA
            46 Railroads
            230 field tests; 2 assessments
            800 hours
            185,600

            —FRA Access: Interviews with PTC Wrkrs
            46 Railroads
            92 interviews
            30 minutes
            46

            —FRA Requests for Further Information
            46 Railroads
            8 documents
            400 hours
            3,200

            236.1011—PTCIP Requirements—Comment
            7 Interested Groups
            1 rev.; 40 com
            143 + 8 hrs
            463

            236.1015—PTCSP Content Requirements & PTC System Certification.

            —Non-Vital Overlay
            46 Railroads
            3 PTCSPs
            16,000 hours
            48,000

            —Vital Overlay
            46 Railroads
            28 PTCSPs
            22,400 hours
            627,200

            —Stand Alone
            46 Railroads
            14 PTCSPs
            32,000 hours
            448,000

            —Mixed Systems—Conference with FRA regarding Case/Analysis
            46 Railroads
            3 conferences
            32 hours
            96

            —Mixed Sys. PTCSPs (incl. safety case)
            46 Railroads
            1 PTCSP
            28,800 hours
            28,800

            —FRA Request for Additional PTCSP Data
            46 Railroads
            23 documents
            3,200 hours
            73,600

            —PTCSPs Applying to Replace Existing Certified PTC Systems
            46 Railroads
            23 PTCSPs
            3,200 hours
            73,600

            —Non-Quantitative Risk Assessments Supplied to FRA
            46 Railroads
            23 assessments
            3,200 hours
            73,600

            236.1017—PTCSP Supported by Independent Third Party Assessment
            46 Railroads
            1 assessment
            8,000 hours
            8,000

            —Written Requests to FRA to Confirm Entity Independence
            46 Railroads
            1 request
            8 hours
            8

            —Provision of Additional Information After FRA Request
            46 Railroads
            1 document
            160 hours
            160

            —Independent Third Party Assessment: Waiver Requests
            46 Railroads
            1 request
            160 hours
            160

            —RR Request for FRA to Accept Foreign Railroad Regulator Certified Info
            46 Railroads
            1 request
            32 hours
            32

            236.1019—Main Line Track Exceptions.

            —Submission of Main Line Track Exclusion Addendums (MTEAs)
            46 Railroads
            46 MTEAs
            160 hours
            7,360

            —Passenger Terminal Exception—MTEAs
            46 Railroads
            23 MTEAs
            160 hours
            3,680

            —Limited Operation Exception—Risk Mit
            46 Railroads
            23 plans
            160 hours
            3,680

            —Ltd. Exception—Collision Hazard Anal
            46 Railroads
            12 analyses
            1,600 hours
            19,200

            —Temporal Separation Procedures
            46 Railroads
            11 procedures
            160 hours
            1,760

            236.1021—Discontinuances, Material Modifications, Amendments—Requests to Amend (RFA) PTCIP, PTCDP or PTCSP
            46 Railroads
            23 RFAs
            160 hours
            3,680

            —Review and Public Comment on RFA
            7 Interested Groups
            7 reviews + 20 comments
            3 hours; 16 hours
            341

            236.1023—PTC Product Vendor Lists
            46 Railroads
            46 lists
            8 hours
            368

            —RR Procedures Upon Notification of PTC System Safety-Critical Upgrades, Rev., Etc
            46 Railroads
            46 procedures
            16 hours
            736

            —RR Notifications of PTC Safety Hazards
            46 Railroads
            150 notification
            16 hours
            2,400

            —RR Notification Updates
            46 Railroads
            150 updates
            16 hours
            2,400

            —Manufacturer's Report of Investigation of PTC Defect
            5 System Suppliers
            5 reports
            400 hours
            2,000

            —PTC Supplier Reports of Safety Relevant Failures or Defective Conditions
            5 System Suppliers
            150 reports + 150 rpt. copies
            16 hours + 8 hours
            3,600

            236.1029—Report of On-Board Lead Locomotive PTC Device Failure
            46 Railroads
            1,012 reports
            96 hours
            97,152

            236.1031—Previously Approved PTC Systems.

            —Request for Expedited Certification (REC) for PTC System
            46 Railroads
            3 REC Letters
            160 hours
            480

            —Requests for Grandfathering on PTCSPs
            46 Railroads
            3 requests
            1,600 hours
            4,800

            236.1035—Field Testing Requirements
            46 railroads
            230 field test plans
            800 hours
            184,000

            —Relief Requests from Regulations Necessary to Support Field Testing
            46 Railroads
            46 requests
            320 hours
            14,720

            236.1037—Records Retention.

            —Results of Tests in PTCSP and PTCDP
            46 railroads
            1,012 records
            4 hours
            4,048

            —PTC Service Contractors Training Records
            46 Railroads
            22,080 records
            30 minutes
            11,040

            —Reports of Safety Relevant Hazards Exceeding Those in PTCSP and PTCDP
            46 Railroads
            4 reports
            8 hours
            32

            —Final Report of Resolution of Inconsistency
            46 Railroads
            4 final reports
            160 hours
            640

            —236.1039—Operations & Maintenance Manual (OMM): Development
            46 railroads
            46 manuals
            250 hours
            11,500

            —Positive Identification of Safety-critical components
            46 railroads
            120,000 i.d. components
            1 hour
            120,000

            —Designated RR Officers in OMM. regarding PTC issues
            46 railroads
            92 designations
            2 hours
            184

            —236.1041—PTC Training Programs
            46 Railroads
            46 programs
            400 hours
            18,400

            —236.1043—Task Analysis/Basic Requirements: Training Evaluations
            46 railroads
            46 evaluations
            720 hours
            33,120

            —Training Records
            46 railroads
            560 records
            10 minutes
            93

            —236.1045—Training Specific to Office Control Personnel
            46 railroads
            32 trained employees
            20 hours
            640

            —236.1047—Training Specific to Loc. Engineers & Other Operating Personnel.

            —PTC Conductor Training
            30 railroads
            8,000 trained conductors
            3 hours
            24,000

        All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at 202-493-6073.

        Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also be submitted via e-mail to Mr. Brogan or Ms. Toone at the following address: Robert.Brogan@dot.gov;
          Kimberly.Toone@dot.gov.

        OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after its publication in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

        FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register.
        D. Federalism Implications

        This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, “Federalism.” See 64 FR 43,255 (Aug. 4, 1999). As discussed earlier in the preamble, this proposed rule would provide regulatory relief from the mandated implementation of PTC systems.

        Executive Order 13132 requires FRA to develop a process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” Policies that have “federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects 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.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts state law, the agency seeks to consult with State and local officials in the process of developing the regulation.
        FRA has determined that this proposed rule would not have substantial direct effects on the States, on the relationship between the national government and the States, nor on the distribution of power and responsibilities among the various levels of government. In addition, FRA has determined that this proposed rule would not impose any direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
        However, this proposed rule will have preemptive effect. Section 20106 of Title 49 of the United States Code provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the local safety or security exception to § 20106. Furthermore, the Locomotive Boiler Inspection Act (49 U.S.C. 20701-20703) has been held by the U.S. Supreme Court to preempt the entire field of locomotive safety.
        In sum, FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this proposed rule is not required.
        E. Environmental Impact
        FRA has evaluated this proposed rule in accordance with its “Procedures for Considering Environmental Impacts” (“FRA's Procedures”) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this proposed rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this proposed rule is not a major Federal action significantly affecting the quality of the human environment.
        F. Unfunded Mandates Reform Act of 1995
        The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531) (UMRA) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a federal mandate likely to result in the expenditures by state, local or tribal governments, in the aggregate, or by the private sector, of $100 million (adjusted annually for inflation with base year of 1995) or more in any one year. The value equivalent of $100 million in CY 1995, adjusted annual for inflation to CY 2008 levels by the Consumer Price Index for All Urban Consumers (CPI-U) is $141.3 million. The assessment may be included in conjunction with other assessments, as it is in this rulemaking.
        FRA is publishing this NPRM to provide additional flexibility in standards for the development, testing, implementation, and use of PTC systems for railroads mandated by RSIA to implement PTC systems. The RIA provides a detailed analysis of the costs and benefits of the NPRM. This analysis is the basis for determining that this rule will not result in total expenditures by State, local or tribal governments, in the aggregate, or by the private sector of $141.3 million or more in any one year. The costs associated with this NPRM are reduced accident reduction from an existing rule. The aforementioned costs borne by all parties will not exceed $3.3 million in any one year.
        G. Energy Impact

        Executive Order 13211 requires federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this proposed rule in accordance with Executive Order 13211. FRA has determined that this proposed rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this regulatory action is not a “significant regulatory action” within the meaning of Executive Order 13211.
        H. Privacy Act

        FRA wishes to inform all interested parties that anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Interested parties may also review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477) or visit http://www.regulations.gov.

          List of Subjects
          49 CFR Part 236
          Penalties, Positive train control, Railroad safety, Reporting and recordkeeping requirements.

        V. The Proposed Rule
        In consideration of the foregoing, FRA proposes to amend chapter II, subtitle B of title 49, Code of Federal Regulations as follows:

          PART 236—[AMENDED]
          1. The authority citation for part 236 continues to read as follows:

            Authority:
             49 U.S.C. 20102-20103, 20107, 20133, 20141, 20157, 20301-20303, 20306, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.

          2. Amend § 236.1003 by adding the definition “PIH Materials” to paragraph (b) to read as follows:

            § 236.1003
            Definitions.

            (b) * * *

              PIH Materials means materials poisonous by inhalation, as defined in §§ 171.8, 173.115, and 173.132 of this title.

            3. Amend § 236.1005 by redesignating paragraph (b)(4)(ii) as paragraph (b)(4)(iii); revise paragraph (b)(4)(i) and add a new paragraph (b)(4)(ii) to read as follows:

            § 236.1005
            Requirements for Positive Train Control systems.

            (b) * * *
            (4) * * *
            (i) Routing changes. In a PTCIP or an RFA, a railroad may request review of the requirement to install PTC on a track segment where a PTC system is otherwise required by this section, but has not yet been installed, based upon changes in rail traffic such as reductions in total traffic volume to a level below 5 million gross tons annually or cessation of passenger service or PIH materials traffic. Any such request shall be accompanied by estimated traffic projections for the next 5 years (e.g., as a result of planned rerouting, coordinations, or location of new business on the line).
            (ii) FRA will approve the exclusion requested pursuant to paragraph (b)(4)(i) of this section if the railroad establishes the following:
            (A) The cessation of passenger service on the involved track segment prior to January 1, 2016;
            (B) A decline in gross tonnage below 5 million gross tons annually as computed over a 2-year period on the involved track segment; or
            (C) The cessation or expected cessation of PIH traffic over the involved track segment prior to January 1, 2016.

            § 236.1020
            [Removed and reserved]
            4. Remove and reserve § 236.1020.

            Issued in Washington, DC, on August 17, 2011.
            Joseph C. Szabo,
            Administrator.

      [FR Doc. 2011-21454 Filed 8-23-11; 8:45 am]
      BILLING CODE 4910-06-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 229
        RIN 0648-XX003
        Atlantic Large Whale Take Reduction Plan Modifications To Reduce Serious Injury and Mortality of Large Whales in Commercial Trap/Pot Fisheries Along the U.S. East Coast

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of intent to prepare environmental impact statement, request for comments.

          SUMMARY:

          The National Marine Fisheries Service (NMFS) intends to begin a rulemaking process that will amend the Atlantic Large Whale Take Reduction Plan (Plan) to reduce the risk of serious injuries and mortalities to North Atlantic right whales (Eubalaena glacialis) and other large whales caused by entanglement in commercial trap/pot fisheries along the U.S. East Coast. An Environmental Impact Statement (EIS) will be prepared in accordance with the National Environmental Policy Act (NEPA) to analyze the impacts to the environment of alternatives to amend the Plan.
          This notice informs the public of upcoming scoping meetings to solicit public comments on ways to reduce the risk of entanglement in trap and pot fisheries for right, humpback, and finback whales.
          NMFS requests comments on management options for this action, particularly including information about operational challenges, time, and costs required to modify gear by changing configurations such as traps per trawl to reduce endline numbers, installing new line or sleeves, and by expanding gear marking requirements. Team recommendations and additional risk reduction measures identified during Team discussions and during this scoping period will form the basis of the alternatives that will be analyzed through the EIS process.

          DATES:

          Written or electronic scoping comments must be received at the appropriate address or email mailbox (see ADDRESSES) September 16, 2019.

          ADDRESSES:
          You may submit comments on this document by either of the following methods:
          • Electronic Submission: Submit all electronic public comments by sending an email to nmfs.gar.ALWTRT2019@noaa.gov using the subject line “Comments on Atlantic Large Whale Take Reduction Plan Scoping.”
          • Mail: Submit written comments to Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930-2276. Mark the outside of the envelope: “Comments on Atlantic Large Whale Take Reduction Plan Scoping.”
          Comments can also be provided in person during scoping meetings, listed below.

          FOR FURTHER INFORMATION CONTACT:

          Colleen Coogan, Take Reduction Team Coordinator, Greater Atlantic Region. Telephone: 978 281-9181. Address: 55 Great Republic Drive, Gloucester, MA 01930. Email: colleen.coogan@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        Dates, Times and Locations
        The dates, times, and locations of scoping meetings are scheduled as follows:

        1. Thursday, August 8, 2019—Narragansett, RI, 6 p.m. to 9 p.m.
        URI Graduate School of Oceanography, Corless Auditorium, 215 South Ferry Road, Narragansett, RI 02882
        2. Monday, August 12, 2019—Machias, ME, 6 p.m. to 9 p.m.
        University of Maine at Machias, Performing Arts Center, 116 O'Brien Avenue, Machias, ME 04654
        3. Tuesday, August 13, 2019—Ellsworth, ME, 6 p.m. to 9 p.m.
        Ellsworth High School Performing Arts Center, 24 Lejok Street, Ellsworth, ME 04605
        4. Wednesday, August 14, 2019—Waldoboro, ME, 6 p.m. to 9 p.m.
        Medomak Valley High School, 320 Manktown Road, Waldoboro, Maine 04572
        5. Thursday, August 15, 2019—Portland, ME, 6 p.m. to 9 p.m.
        South Portland High School, 637 Highland Ave., South Portland ME, 04106
        6. Monday, August 19, 2019—Portsmouth, NH, 6 p.m. to 9 p.m.
        Urban Forestry Center, 45 Elwyn Road, Portsmouth, NH 03801
        7. Tuesday, August 20, 2019—Gloucester, MA, 6 p.m. to 9 p.m.
        NOAA Fisheries Greater Atlantic Region, 55 Great Republic Drive, Gloucester, MA 01930
        8. Wednesday, August 21, 2019—Bourne, MA, 6 p.m. to 9 p.m.
        Upper Cape Cod Regional Technical School, 220 Sandwich Rd., Bourne, MA 02352
        Background
        The North Atlantic right whale population has been declining since 2010, and the most recent estimate indicates a population of no more than 411 individuals at the end of 2017. The decline has been exacerbated by an Unusual Mortality Event in 2017, following a calving season (2016-2017) with only five documented births and coinciding with the first calving season since monitoring began in 1990 with no new births documented (2017-2018). While climate change and the availability and redistribution of prey appear to be contributing to the population's declining fitness, a primary cause of significant injury and mortality of North Atlantic right whales is entanglement in fishing gear. With mortalities continuing to outpace births, the population decline is continuing, and further mitigation of entanglements that cause serious injury or mortality is needed.

        The Marine Mammal Protection Act (MMPA) mandates that NMFS develop and implement Take Reduction Plans for preventing the depletion and assisting in the recovery of certain marine mammal stocks that are seriously injured or killed in commercial fisheries. Pursuant to the MMPA, NMFS convenes Take Reduction Teams, composed of stakeholders that make recommendations for reducing serious injuries and deaths to acceptable levels. The teams design each plan to reduce bycatch within a specific timeframe through a combination of voluntary and regulatory measures implemented by NMFS.
        Right whales are listed as endangered under the Endangered Species Act and considered depleted under the MMPA. NMFS formed the Team in 1997 to consider serious injuries and mortalities caused by incidental take in commercial fisheries of right whales as well as humpback and fin whales. The Team develops and recommends measures to reduce the impact of commercial fisheries on large whales in the Atlantic to achieve the Potential Biological Removal (PBR) level. This level is defined by the MMPA as the maximum number of animals, not including natural mortalities that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.
        The Team has previously implemented several regulations to reduce the impacts of fishing gear on large whales in the region, such as area closures, gear configuration requirements, and gear marking rules. The most recent rule in 2014, amended in 2015, was implemented to reduce the risk of entanglement by decreasing the number of buoy lines, vertical lines in the water column that identify where fishing gear is set and allow fishermen to retrieve the gear.
        During a meeting in April 2019, the Team provided near-consensus recommendations to NMFS to reduce entanglements that cause right whale serious injuries and mortalities in trap/pot gear in New England waters by more than half to achieve the PBR level of less than one right whale per year in New England trap/pot fisheries. At the 2019 meeting, the Team discussed several management options to decrease the risk and severity of entanglements in these fisheries including: Vertical line reduction through trap or line limits and ropeless fishing technologies, gear modifications to reduce the breaking strength of ropes so entangled whales could break free, and area closures where right whales can be predicted to aggregate seasonally. Ultimately, all but one Team member present recommended jurisdiction-specific vertical line reductions and gear modifications.

          Table 1—April 2019 Take Reduction Framework

            April 2019 take reduction framework
            State/jurisdiction
            Vertical line reduction
            Gear modification
            Est. % risk reduction

            Maine permitted vessels through LMA1
            50% vertical line reduction through LMA1 (50% risk reduction)
            LMA 1—Weak rope outside of 3 miles on 3/4 length of buoy line (toppers) (11.6% risk reduction)
            61.6.

            NH LMA1
            30% vertical line reduction (30% risk reduction)
            1700 lb. breaking strength or sleeves (28.5% risk reduction)
            58.5.

            Massachusetts LMA1 and Outer Cape
            Mass Bay Restricted Area Closure (24% risk reduction)
            Sleeves or 1700 lb. breaking strength or equivalent
            60.

            30% vertical line reduction, not including MBRA fishermen (−5%) (25% risk reduction)
            (11% risk reduction)

            LMA 2—Massachusetts and Rhode Island
            18% (2018-2020) vertical line reduction (18% risk reduction)
            1700 lb. or equivalent
            60.

            LMA 2/3 Overlap—Massachusetts, Rhode Island
            Trawling up to 30 traps (from 20) (30% risk reduction for that area)
            (42% risk reduction)

            LMA 3
            Accelerate planned line reduction (18% risk reduction)
            Rapid research on alternatives to introduce weak rope or weak link elements in to offshore line
            18% + TBD Commit to 60%.

        In addition to changes in line numbers and strength, the Team strongly supported amplification of gear marking requirements to reduce uncertainty about where and in what fisheries large whales are entangled. During a June 2019 teleconference, the Team supported consideration of expanding the markings on buoy lines to all U.S. fixed gear fisheries including previously exempted waters, increasing spatial resolution in nearshore New England fisheries (“red” areas), adding a three-foot long mark within one fathom of the surface buoy system, and increasing the frequency of marks on buoy lines. Further information regarding that discussion can be found here: https://go.usa.gov/xmSS3.

        Further information about the Atlantic Large Whale Take Reduction Plan can be found at the website: https://go.usa.gov/xmSKh. Further information about the April 2019 Team meeting that resulted in the recommendations to modify the Take Reduction Plan can be found here: https://go.usa.gov/xmSk3.
        Environmental Impact Statement
        NEPA (42 U.S.C. 4321 et seq.) requires that Federal agencies conduct an environmental analysis of their proposed actions to determine if the actions may significantly affect the human environment. NMFS has determined that an EIS should be prepared under NEPA for the purpose of informing rulemaking to modify the Atlantic Large Whale Take Reduction Plan. We will prepare an EIS in accordance with NEPA requirements, as amended (42 U.S.C. 4321 et seq.); NEPA implementing regulations (40 CFR 1500-1508); and other Federal laws, regulations, and policies.
        The Proposed Action for analysis in the Final EIS is NMFS rulemaking to modify the Atlantic Large Whale Take Reduction Plan. NMFS' purpose for the proposed action is to fulfill the mandates of the MMPA to reduce impacts of fisheries on large whale species below their PBR level.

        The EIS will consider the Team's recommendations to reduce vertical lines by changing gear reconfigurations and/or trap allocations to reduce buoy lines and to modify gear to require rope that whales can break. Additional buoy line marking will likely also be considered as part of this rulemaking. Additions or modifications to areas closed to trap/pot fishing may also be considered. Measures to be considered will respect the framework adopted by the Team to include area-specific measures that are operationally feasible for the varying gear configurations and lobster fishing conditions across New England. Measures will be created in collaboration with New England states and will take into account any measures states propose as they respond to Team recommendations.
        Public Comments
        Everyone potentially impacted by or interested in changes to the Atlantic Large Whale Take Reduction Plan, and particularly, management of trap/pot fisheries in New England, is invited to participate in the public scoping process by submitting written comments or attending public scoping meetings. This scoping process aims to gather input regarding the scope of actions to be proposed for rulemaking, the development of alternatives to analyze in the EIS, and the potential impact of management actions. NMFS particularly requests comments and input on the operational challenges of gear modifications likely to be considered. In addition to direct costs of replacing new gear, input is requested on indirect cost of gear modification measure alternatives, such as costs in time required to install sleeves, install weak rope, and mark gear and costs related to fewer vertical lines or seasonal closures.
        Comments and suggestions that are within the scope of the proposed actions to reduce risk of serious injury and mortality of large whales due to entanglements and to improve gear marking to reduce uncertainty about where entanglements occur will be considered when developing the alternatives for analysis in the draft EIS. Previous comments that have already been received regarding a proposed rule are already being considered and do not need to be resubmitted.

          Dated: July 29, 2019.
          Donna S. Wieting,
          Director, Office of Protected Resources, National Marine Fisheries Service.

      [FR Doc. 2019-16487 Filed 7-31-19; 11:15 am]
       BILLING CODE 3510-22-P