
[Federal Register: May 19, 2009 (Volume 74, Number 95)]
[Rules and Regulations]               
[Page 23329-23336]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my09-9]                         

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 209 and 211

[Docket No. FRA-2009-0006; Notice No. 1]
RIN 2130-AC02

 
Miscellaneous Revisions to the Procedures for Handling Petitions 
for Emergency Waiver of Safety Regulations and the Procedures for 
Disqualifying Individuals From Performing Safety-Sensitive Functions

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

ACTION: Direct final rule.

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SUMMARY: This direct final rule makes miscellaneous revisions to the 
procedures for obtaining waivers from a safety rule, regulation, or 
standard during an emergency situation or an emergency event, and the 
procedures for disqualifying individuals from performing safety-
sensitive functions. FRA's purpose in revising these

[[Page 23330]]

procedures is to make them consistent with sections 305 and 308 of the 
Rail Safety Improvement Act of 2008 (the ``Act''), Public Law 110-432, 
Division A, which was signed into law on October 16, 2008. Interested 
parties may submit written adverse comments or may request an oral 
hearing on these miscellaneous revisions during the thirty (30) day 
period following publication of this rule. FRA anticipates no adverse 
comments.

DATES: Effective Date: Unless FRA receives a written adverse comment or 
a request for an oral hearing on this direct final rule within the 
specified comment period, the effective date will be July 20, 2009.
    Written Comments: Comments or a request for an oral hearing must be 
received by June 18, 2009.

ADDRESSES: Comments, identified by Docket Number FRA-2009-0006, may be 
submitted by any of the following methods:
     Fax: 1-202-493-2251.
     Mail: DOT Docket Management Facility; W12-140, West 
Building, 1200 New Jersey Ave., SE., Washington, DC 20590.
     Hand Delivery: W12-140 on the ground level of the West 
Building, 1200 New Jersey Ave., SE., Washington, DC, between 9 a.m. and 
5 p.m., Monday through Friday, except Federal Holidays.
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting 
comments.
    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 later in this document 
for more information.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
W12-140 on the ground level of the West Building, 1200 New Jersey Ave., 
SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Grady C. Cothen, Jr., Deputy Associate 
Administrator for Safety Standards and Program Development, FRA, 1200 
New Jersey Ave., SE., RRS-2, Mail Stop 25, Washington, DC 20590 
(Telephone 202-493-6302), or Zeb Schorr, Trial Attorney, Office of 
Chief Counsel, FRA, 1200 New Jersey Ave., SE., Mail Stop 10, 
Washington, DC 20590 (Telephone 202-493-6072).

SUPPLEMENTARY INFORMATION: 

Background

Individual Disqualification Procedures

    Section 305 of the Rail Safety Improvement Act of 2008 expanded the 
scope of 49 U.S.C. 20111(c), which concerns disqualifying individuals 
from performing safety-sensitive functions. Specifically, section 305 
provides, in part, that an individual who has violated the 
Transportation of Hazardous Materials laws (49 U.S.C. Chapt. 51) or a 
regulation or order prescribed under those laws may be prohibited from 
performing safety-sensitive functions in the railroad industry for a 
specified period of time or until specified conditions are met, if it 
is shown that the violation makes the individual unfit for safety-
sensitive functions. Based on section 305 of the Act, FRA is revising 
its existing procedures that govern the process that the agency uses to 
disqualify individuals from performing safety-sensitive functions. 
These procedures are intended to assure the prompt and efficient 
conduct of disqualification proceedings, while affording administrative 
due process to those against whom such proceedings are initiated.

Emergency Waiver Procedures

    Section 308 of the Act includes specific procedures for obtaining 
waivers from a safety rule, regulation, or standard during an emergency 
situation or an emergency event. Based on the modifications contained 
in the Act, FRA is revising the existing emergency waiver procedures 
that it adopted in 2007 to expeditiously handle waiver requests that 
are directly related to an emergency situation or an emergency event. 
These revisions will make the existing procedures consistent with the 
Act and will permit FRA to provide railroads necessary operational 
relief during emergencies while at the same time maintaining public 
safety.
    Due to the catastrophic and devastating damage inflicted on the 
southern portion of the United States in the aftermath of Hurricane 
Katrina, FRA published a notice in the Federal Register establishing a 
temporary means for handling petitions for waiver from the Federal rail 
safety regulations that were directly related to the effects of the 
hurricane or were necessary to effectively address the relief efforts 
being undertaken in the area. See 70 FR 53413 (September 8, 2005). FRA 
recognized that these types of petitions had to be afforded special 
consideration and had to be handled expeditiously in order to ensure 
that the emergency operational needs of the railroads were addressed 
while at the same time ensuring the safety of the public, including 
railroad employees. Such emergency waivers would help ensure that 
routine safety regulations would not stand in the way of the railroads' 
efforts to cope with the emergency and to provide timely relief and 
recovery efforts. FRA subsequently issued an interim final rule, and 
then a final rule, codifying those interim procedures. See 72 FR 17438 
(April 7, 2007). FRA is issuing this direct final rule revising these 
existing procedures so that they are consistent with the Act.

Section-by-Section Analysis

Disqualification Procedures--49 CFR Part 209

    Section 209.301(a). This paragraph discusses the scope of the rules 
of practice for disqualification proceedings of railroad employees and 
agents from safety-sensitive functions in the rail industry. A 
technical amendment is made to this paragraph so that it refers to the 
Federal railroad safety laws at 49 U.S.C. 20111(c) rather than the 
laws' previous incorporation at title 45 of the United States Code.
    Section 209.303(a). This paragraph makes clear that railroad 
employees who are assigned to perform service subject to the Hours of 
Service Act during a duty tour are subject to the disqualification 
procedures. A technical amendment is made so that this paragraph refers 
to 49 U.S.C. Chapt. 211 rather than the old hours of service statutory 
citation at title 45 of the United States Code.
    Section 209.303(b). This paragraph identifies the railroad 
employees or agents that are subject to the disqualification 
procedures. These include railroad employees or agents who: (1) 
Inspect, install, repair, or maintain track and roadbed; (2) inspect, 
repair or maintain, locomotives, passenger cars, and freight cars; (3) 
conduct training and testing of employees when the training or testing 
is required by the FRA's safety regulations; and (4) perform service 
subject to the Transportation of Hazardous Materials laws (49 U.S.C. 
Chapt. 51), or any regulation prescribed thereunder. This paragraph is 
amended to identify railroad employees and agents who perform service 
subject to 49 U.S.C. Chapt. 51, and any regulation or order prescribed 
thereunder, in order to remain consistent with the Act.

[[Page 23331]]

    Section 209.303(c). This paragraph identifies the following 
railroad managers, supervisors, or agents as subject to the 
disqualification procedures. These include railroad managers, 
supervisors, or agents who: (1) Perform the safety-sensitive functions 
listed in paragraphs (a) and (b) of this section; (2) supervise and 
otherwise direct the performance of the safety-sensitive functions 
listed in paragraphs (a) and (b) of this section; or (3) are in a 
position to direct the commission of violations of any of the 
requirements of parts 213 through 241 of this title, or of any of the 
requirements of the Transportation of Hazardous Materials Laws (49 
U.S.C. Chapt. 51), or any regulation or order prescribed thereunder. A 
technical amendment is made to this paragraph so that it refers to 
parts 213 through 241 of title 49 of the Code of Federal Regulations. 
The existing provision only refers to parts 213 through 236. Because 
parts 238 through 241 have been added to the Code of Federal 
Regulations since the last amendment of this provision, it is necessary 
to make this technical amendment for accuracy and clarity. As indicated 
above, this paragraph is also amended to identify railroad managers, 
supervisors, and agents who perform, supervise, or direct service in 
violation of 49 U.S.C. Chapt. 51, and any regulation or order 
prescribed thereunder, in order to remain consistent with the Act.
    Section 209.327(c). Technical amendments are made so that this 
paragraph cross-references paragraphs (a) and (b). The existing 
provision contains an inaccurate cross-reference to paragraphs (c) and 
(d) of this section. This amendment is necessary for accuracy and 
clarity.
    Section 209.329(a). This paragraph provides that the proof of a 
respondent's willful violation of one of the requirements of parts 213 
through 241 (excluding parts 225, 228, and 233) of this title, or one 
of the requirements of 49 U.S.C. Chapt. 51, or any regulation or order 
prescribed thereunder, establishes a rebuttable presumption that the 
respondent is unfit to perform the safety-sensitive functions described 
in Sec.  209.303. A technical amendment is made to this paragraph so 
that it refers to parts 213 through 241 of title 49 of the Code of 
Federal Regulations. The existing provision only refers to parts 213 
through 236. Because parts 238 through 241 have been added to the Code 
of Federal Regulations since the last amendment of this provision, it 
is necessary to make this technical amendment for accuracy and clarity. 
This paragraph is also amended to include a reference to violations of 
49 U.S.C. Chapt. 51, and any regulation or order prescribed thereunder, 
in order to remain consistent with the Act.
    Section 209.329(b). Minor technical amendments are made to this 
paragraph to correct spelling and punctuation errors in the existing 
provision.

Processing of Emergency Waivers--Sec.  211.45

    Section 211.45(a). This paragraph makes clear that the emergency 
waiver procedures are intended to go into effect when there is an 
occurrence of, or imminent threat of, an emergency event or an 
emergency situation. The types of emergency events and emergency 
situations intended to be covered by this direct final rule could be 
local, regional, or national in scope and could include natural or 
manmade disasters, such as hurricanes, floods, earthquakes, mudslides, 
forest fires, snowstorms, terrorist acts, biological outbreaks, 
releases of dangerous radiological, chemical, explosive, or biological 
material, or war-related activities that pose a risk of death, serious 
illness, severe injury, or substantial property damage. In order to 
remain consistent with the Act, technical amendments are made so that 
this paragraph identifies relevant emergency situations. This direct 
final rule also amends the definition of the terms ``emergency event'' 
and ``emergency situation'' to make them consistent with the terms as 
used in the Act.
    Section 211.45(b). This paragraph contains information regarding 
FRA's establishment of an annual Emergency Relief Docket (ERD). 
Establishing a new ERD each year allows FRA to receive petitions for 
emergency waivers as soon as the occurrence of, or imminent threat of, 
an emergency event is determined to have occurred. A yearly ERD is also 
a convenient way to organize the emergency waiver petitions and related 
documents. For reference purposes, any petition can be located by the 
year in which the emergency event or emergency situation occurred. The 
Federal eRulemaking Portal (``FeP'') internet site, http://
www.regulations.gov, that is identified in this final rule allows any 
interested party to request notification and to subsequently, without 
fee, be automatically notified via e-mail when documents are added to 
the designated ERD. This paragraph also makes clear that FRA will 
publish by January 31st of each year, a Federal Register notice 
identifying the ERD for that year. This will inform interested parties 
where to find petitions for emergency waiver during an emergency and 
will allow such parties to request e-mail notification. Placing a 
notice in the previous year's ERD will allow the parties interested in 
the prior year to automatically receive the new docket number. The only 
changes made by this direct final rule to the existing paragraph are 
technical amendments so that this paragraph refers to the Federal 
eRulemaking Portal and http://www.regulations.gov which replaced the 
DOT Docket Management System.
    Section 211.45(c). This paragraph identifies the FRA Administrator 
(the ``Administrator'') as the individual responsible for determining 
when the emergency waiver procedures will be utilized. The 
Administrator is the appropriate person to determine whether a 
situation or set of circumstances constitutes an emergency for purposes 
of FRA's use of the emergency waiver procedures. The Administrator has 
a unique familiarity with the rail-industry through oversight of the 
following: Managing comprehensive safety programs and regulatory 
initiatives; enforcement of FRA safety regulations; development and 
implementation of national freight and passenger rail policy; and 
oversight of diverse research and development activities in support of 
improved railroad safety. During significant emergencies the 
Administrator has extensive interaction with the Department of Homeland 
Security, Director of National Intelligence, the Federal Bureau of 
Investigation, the Surface Transportation Board and other Federal 
agencies responsible for addressing public safety, health, security and 
welfare. In addition, the Administrator maintains contemporaneous 
communication with relevant rail transportation entities, including 
passenger and freight railroads. This experience and interaction 
provides a basis from which the Administrator can assess whether a 
situation or set of circumstances rises to the level of an emergency 
event that would necessitate activation of the emergency waiver 
procedures.
    The Administrator's statement declaring that the emergency 
procedures are in effect will be placed in the appropriate ERD as soon 
as practicable. The FeP Internet site that is identified in the rule 
text allows any subscribing interested party to request notification, 
without fee, via e-mail when documents are added to the appropriate 
ERD. In determining whether an emergency exists the Administrator may 
consider states of emergency issued by a local, State, or Federal 
official, and determinations by the Federal government that a credible 
threat of a

[[Page 23332]]

terrorist attack exists. The Administrator will consider whether such 
emergencies significantly affect railroad operations, and whether it 
would be beneficial to activate the emergency waiver procedures. Minor 
technical amendments are being made to the existing provision in this 
final rule in order to make the provision consistent with the Act by 
using the term ``emergency situation,'' and by correcting the cross-
reference to paragraph (b) of this section.
    Section 211.45(d). This paragraph identifies the methods by which 
interested parties may be notified of FRA's determination to utilize 
the emergency waiver procedures. If conditions permit, FRA will issue 
the Administrator's determination on FRA's Web site to quickly notify 
the public. FRA will also place the Administrator's determination in 
the ERD as soon as practicable. This direct final rule makes technical 
amendments to the existing provision by slightly modifying the 
notification process consistent with the requirements of the Act. The 
Act does not require publication of the determination in the Federal 
Register and FRA believes that notification to interested parties will 
occur in a more expeditious manner if such notification is accomplished 
through the FRA Web site and the ERD. A minor change is also made in 
this paragraph by correcting the cross-reference to paragraph (c) of 
this section.
    Section 211.45(e). This paragraph identifies the required content 
of a petition for emergency waiver. To be considered under the 
emergency waiver procedures, FRA must first determine that the petition 
is directly related to the occurrence of, or imminent threat of, an 
emergency event or an emergency situation. FRA will base its 
determination on the information provided in the petition. Thus, the 
petition should contain information that sufficiently demonstrates the 
relationship between the emergency event or emergency situation and the 
waiver relief being sought. This direct final rule does not modify the 
existing provision and is included in this document for the convenience 
of interested parties.
    Section 211.45(f). This paragraph instructs the public on how to 
submit a petition under the emergency waiver procedures. FRA is 
permitting submission by e-mail, facsimile, or mail. Permitting a 
variety of methods for submitting petitions for emergency waiver is 
intended to enhance the convenience and effectiveness of the process 
during the occurrence of, or imminent threat of, an emergency event or 
emergency situation. The direct final rule includes a minor technical 
amendment to the existing provision by updating the submission 
information to include FRA's current address which changed subsequent 
to the issuance of the original rule.
    Section 211.45(g). This paragraph contains information regarding 
FRA's handling of waiver petitions under the emergency waiver 
procedures. After FRA declares that the emergency procedures are in 
effect, it will accept petitions for emergency waivers. Petitions that 
are determined to be directly related to an emergency will be placed in 
the ERD for that year. The FeP numbers each document that is added to a 
docket. Thus, each petition submitted to the ERD will have a unique 
document number. For reference purposes, this document number should be 
identified on all communications related to that particular waiver 
petition. The only change being made by this direct final rule to the 
existing provision is a technical amendment so that this paragraph 
refers to the Federal eRulemaking Portal which replaced the DOT Docket 
Management System.
    Section 211.45(h). This paragraph explains the comment process. 
During emergency situations and emergency events the public interest 
requires an expedited review process to ensure public safety. The 
Administrator may waive compliance with any part of a regulation 
prescribed or order issued without prior notice and comment. However, 
comments may be submitted pursuant to the direction in this paragraph, 
and FRA will consider such comments to the extent practicable. This 
direct final rule amends the existing provision by specifically stating 
that FRA's Administrator is able to issue waivers in an emergency 
situation without prior notice and comment. The Act provides FRA with 
this authority. Thus, although interested parties are free to submit 
comments and request hearings, FRA is not required to address them or 
conduct such hearings prior to deciding a petition. The only other 
changes being made by this direct final rule to the existing provision 
are minor technical amendments. These include a reference to the 
Federal eRulemaking Portal and http://www.regulations.gov which 
replaced the DOT Docket Management System and a correction to the 
submission information to include FRA's current address which changed 
subsequent to the issuance of the original rule.
    Section 211.45(i). This paragraph describes how FRA will handle 
requests for hearing. As noted, the Administrator may waive compliance 
with any part of a regulation prescribed or order issued without prior 
notice and comment. Pursuant to the direction in this paragraph, a 
hearing may be requested. FRA may arrange a telephone conference 
between interested parties, a public hearing pursuant to this part, or 
may determine that a public hearing is unnecessary. This direct final 
rule amends the existing provision by specifically stating that FRA's 
Administrator is able to issue waivers in an emergency situation 
without prior notice and comment. The Act provides FRA with this 
authority. Thus, although interested parties are free to submit 
comments and request hearings, FRA is not required to address them or 
conduct such hearings prior to deciding a request for relief related to 
an emergency situation or event.
    Section 211.45(j). This paragraph identifies the process by which 
FRA will make decisions on emergency waivers including: FRA's 
consideration of the petition; FRA's notification of the decision; the 
limits of any relief granted under the procedures, and FRA's right to 
reopen a docket and reconsider a decision.
    The ability to grant or deny a petition without delay is essential 
to ensuring public safety during an emergency. In addition, the 
opportunity to reconsider a petition after the initial decision is made 
will ensure a robust deliberation. FRA's understanding of an emergency 
may change as the emergency event develops. Accordingly, the public 
will benefit from FRA's ability to reconsider decisions, and make 
appropriate adjustments based on further information. During an 
emergency it is a priority to address petitions for emergency waiver 
and to make decisions without delay.
    Posting the decision letters in the appropriate ERD will provide 
notice to interested parties. The FeP Internet site that is identified 
in the rule text allows any interested party to receive, without fee, 
automatic notification via e-mail of ERD documents, including the 
Administrator's determination that emergency waiver procedures are in 
effect.
    This paragraph also makes clear that any relief granted under these 
procedures may be issued for a period of not more than 60 days. If 
relief is needed for a period of time beyond 60 days, such relief may 
only be renewed upon application to the Administrator, after notice and 
an opportunity for a hearing on the waiver. FRA will consult and 
coordinate with other Federal agencies, as appropriate, for matters 
that may impact such agencies.

[[Page 23333]]

    As discussed above, this direct final rule amends the existing 
provisions contained in this paragraph to make them consistent with the 
requirements and limitations contained in the Act. The final rule makes 
clear that FRA's Administrator is able to grant and issue decisions on 
waivers in an emergency situation without prior notice and comment. 
This final rule also adopts the specific time limits related to 
emergency waivers contained in the Act by changing the nine month 
limitation on the effectiveness of such waivers to the statutorily 
imposed 60-day limit. This paragraph is also amended to note that FRA 
will consult and coordinate with other Federal agencies on any matters 
that may impact such agencies. This broad language is intended to 
incorporate the existing narrow language noting that FRA will consult 
with the Department of Homeland Security on matters that significantly 
impact the mission of that agency.

Notice and Comment Procedures

    FRA has determined that these miscellaneous revisions are non-
controversial, affect FRA internal procedures, and/or involve non-
substantive clarifications to existing rules. While FRA does not 
anticipate any adverse comment, interested parties may submit written 
comments or request an oral hearing on these amendments during the 
thirty (30) day period immediately following publication of this direct 
final rule.

Regulatory Impact

Executive Order 12866 and DOT regulatory policies and procedures

    This direct final rule has been evaluated in accordance with 
Executive Order 12866 and DOT policies and procedures. The 
modifications contained in this direct final rule are considered non-
significant because they are intended to merely revise internal FRA 
procedures for handling waivers directly related to an emergency, and 
for individual disqualification from performing safety-sensitive 
functions, and to make these procedures consistent with Sec. Sec.  305 
and 308 of the Rail Safety Improvement Act of 2008. FRA does not expect 
a change in the number of emergency waivers or the level of effort 
associated with the developing or processing of these as a result of 
the amendments to the procedures for handling waivers. In addition, FRA 
does not expect the impact of the amendments to the procedures for 
disqualification to result in more than a very minimal increase in the 
number of disqualification cases, if any. In the nearly twenty years 
that existing disqualification procedures have been in effect, only 
sixteen disqualification cases have been initiated. Overall, the 
economic impact of the amendments to the procedures contained in this 
direct final rule may potentially increase compliance costs nominally. 
The benefits resulting from the prompt and efficient conduct of 
proceedings, while affording administrative due process, are expected 
to fully justify any additional burden.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of proposed and final rules to assess their impact on 
small entities, unless the Secretary certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Pursuant to Section 312 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has issued a 
final policy that formally establishes ``small entities'' as including 
railroads that meet the line-haulage revenue requirements of a Class 
III railroad. 49 CFR part 209, app. C. For other entities, the same 
dollar limit in revenues governs whether a railroad, contractor, or 
other respondent is a small entity. Id.
    FRA certifies that this direct final rule will have no significant 
economic impact on a substantial number of small entities. FRA does not 
expect a change in the number of emergency waivers filed by small 
entities or the level of effort associated with the developing or 
processing of these as a result of the amendments to the procedures for 
handling waivers. There are approximately 520 railroads that are 
considered small entities. In the nearly twenty years that existing 
disqualification procedures have been in effect, only three 
disqualification cases have been initiated involving small railroads. 
Since this universe of railroads would be the same universe impacted by 
this rulemaking, and the number of overall disqualification cases is 
not expected to increase significantly, FRA does not expect the impact 
of the amendments to the procedures for disqualification involving 
small entities to impact a significant number of small railroads. 
Although there is a potential, FRA has concluded that there are no 
substantial economic impacts on small entities. To the extent that this 
rule has any impact on small entities, the impact will not be 
significant.

Paperwork Reduction Act

    There is no additional burden associated with the expanded scope of 
disqualification proceedings under the revised requirements of Part 209 
of this rule. Any burden associated with the current requirements of 
Part 209 is already covered under OMB No. 2130-0529, which currently 
expires February 28, 2010. The burden for waiver petitions is included 
separately under the OMB currently approved collection of information 
associated with each agency rulemaking. Any burden associated with the 
requirements for emergency waiver petitions in this final rule will be 
included separately in each collection of information associated with 
that particular agency rulemaking, either at the time agency re-
approval is sought from OMB or at the time an agency rulemaking is 
newly published or revised and the agency seeks OMB approval for the 
corresponding collection of information.

Environmental Impact

    FRA has evaluated this direct final 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 document 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. 
64 FR 28545, 28547, May 26, 1999. 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 direct final 
rule that might trigger the need for a more detailed environmental 
review. As a result, FRA finds that this direct final rule is not a 
major Federal action significantly affecting the quality of the human 
environment.

Federalism Implications

    FRA believes it is in compliance with Executive Order 13132. This 
rulemaking action has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. This rulemaking will 
not have a substantial direct effect on States, on the relationship 
between the National Government and the States, or on the distribution 
of power and the responsibilities among the various levels of 
government, as specified in Executive Order 1312. Accordingly, FRA has 
determined that this rulemaking will not have sufficient

[[Page 23334]]

federalism implications to warrant consultation with State and local 
officials or the preparation of a federalism assessment. Accordingly, a 
federalism assessment has not been prepared.

Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $128,100,000 or more in any 1 
year, and before promulgating any final rule for which a general notice 
of proposed rulemaking was published, the agency shall prepare a 
written statement'' detailing the effect on State, local, and tribal 
governments and the private sector. Because this direct final rule will 
not change any regulatory requirements, this document will not result 
in the expenditure, in the aggregate, of $128,100,000 or more in any 
one year, and thus preparation of such a statement is not required.

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 that: (1)(i) 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) is designated by the Administrator of the Office 
of Information and Regulatory Affairs as a significant energy action. 
FRA has evaluated this direct final rule in accordance with Executive 
Order 13211. Because the miscellaneous revisions will not change any 
regulatory requirements, FRA has determined that this direct final rule 
will not 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 energy action'' within the meaning of 
Executive Order 13211.

Privacy Act Information

    Interested parties should be aware that anyone is able to search 
the electronic form of all comments received into any agency docket by 
the name of the individual submitting the comment (or signing the 
comment, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78) or you may visit http://www.regulations.gov.

List of Subjects

49 CFR Part 209

    Administrative practice and procedure, Hazardous materials 
transportation, Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

49 CFR part 211

    Administrative practice and procedure, Railroad safety.

Adoption of the Amendment

0
In consideration of the foregoing, FRA amends part 209 and part 211 of 
chapter II, subtitle B of title 49, Code of Federal Regulations, as 
follows:

PART 209--[AMENDED]

0
1. The authority citation for part 209 continues to read as follows:

    Authority:  49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112, 
20112, 20114; 28 U.S.C. 2461, note; and 49 CFR 1.49.


0
2. Section 209.301 is amended by revising paragraph (a) to read as 
follows:


Sec.  209.301  Purpose and scope.

    (a) This subpart prescribes the rules of practice for 
administrative proceedings relating to the determination of an 
individual's fitness for performing safety-sensitive functions under 
the Federal railroad safety laws at 49 U.S.C. 20111(c).
* * * * *

0
3. Section 209.303 is revised to read as follows:


Sec.  209.303  Coverage.

    This subpart applies to the following individuals:
    (a) Railroad employees who are assigned to perform service subject 
to the Hours of Service Act (49 U.S.C. Chapt. 211) during a duty tour, 
whether or not the person has performed or is currently performing such 
service, and any person who performs such service.
    (b) Railroad employees or agents who:
    (1) Inspect, install, repair, or maintain track and roadbed;
    (2) Inspect, repair or maintain, locomotives, passenger cars, and 
freight cars;
    (3) Conduct training and testing of employees when the training or 
testing is required by the FRA's safety regulations; or
    (4) Perform service subject to the Transportation of Hazardous 
Materials laws (49 U.S.C. Chapt. 51), or any regulation or order 
prescribed thereunder;
    (c) Railroad managers, supervisors, or agents when they:
    (1) Perform the safety-sensitive functions listed in paragraphs (a) 
and (b) of this section;
    (2) Supervise and otherwise direct the performance of the safety-
sensitive functions listed in paragraphs (a) and (b) of this section; 
or
    (3) Are in a position to direct the commission of violations of any 
of the requirements of parts 213 through 241 of this title, or any of 
the requirements of 49 U.S.C. Chapt. 51, or any regulation or order 
prescribed thereunder.

0
4. Section 209.327 is amended by revising paragraph (c) to read as 
follows:


Sec.  209.327  Appeal.

* * * * *
    (c) The Administrator may extend the period for filing an appeal or 
a response for good cause shown, provided the written request for 
extension is served before the expiration of the applicable period 
provided in paragraph (a) or (b) of this section.
* * * * *

0
5. Section 209.329 is revised to read as follows:


Sec.  209.329  Assessment considerations.

    (a) Proof of a respondent's willful violation of one of the 
requirements of parts 213 through 241 (excluding parts 225, 228, and 
233) of this title, or of one of the requirements of 49 U.S.C. Chapt. 
51, or any regulation or order prescribed thereunder, establishes a 
rebuttable presumption that the respondent is unfit to perform the 
safety-sensitive functions described in Sec.  209.303. Where such 
presumption arises, the respondent has the burden of establishing that, 
taking account of the factors in paragraph (b) of this section, he or 
she is fit to perform the foregoing safety-sensitive functions for the 
period and under the other

[[Page 23335]]

conditions, if any, proposed in the notice of proposed 
disqualification.
    (b) In determining respondent's lack of fitness to perform safety-
sensitive functions and the duration and other conditions, if any, of 
appropriate disqualification orders under Sec. Sec.  209.309, 209.323, 
and 209.327, the factors to be considered, to the extent each is 
pertinent to the respondent's case, include but are not limited to the 
following:
    (1) The nature and circumstances of the violation, including 
whether the violation was intentional, technical, or inadvertent, was 
committed willfully, or was frequently repeated;
    (2) The adverse impact or the potentially adverse impact of the 
violation on the health and safety of persons and the safety of 
property;
    (3) The employing railroad's operating rules, safety rules, and 
repair and maintenance standards;
    (4) Repair and maintenance standards adopted by the railroad 
industry;
    (5) The consistency of the conditions of the proposed 
disqualification with disqualification orders issued against other 
employees of the employing railroad for the same or similar violations;
    (6) Whether the respondent was on notice of any safety regulations 
that were violated or whether the respondent had been warned about the 
conduct in question;
    (7) The respondent's past record of committing violations of safety 
regulations, including previous FRA warnings issued, disqualifications 
imposed, civil penalties assessed, railroad disciplinary actions, and 
criminal convictions therefor;
    (8) The civil penalty scheduled for the violation of the safety 
regulation in question;
    (9) Mitigating circumstances surrounding the violation, such as the 
existence of an emergency situation endangering persons or property and 
the need for the respondent to take immediate action; and
    (10) Such other factors as may be warranted in the public interest.

PART 211--[AMENDED]

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

    Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, 
and 49 CFR 1.49.


0
7. Section 211.45 is revised to read as follows:
* * * * *


Sec.  211.45  Petitions for emergency waiver of safety rules.

    (a) General. This section applies only to petitions for waiver of a 
safety rule, regulation, or standard that FRA determines are directly 
related to the occurrence of, or imminent threat of, an emergency event 
or an emergency situation. For purposes of this section, the terms 
``emergency event'' and ``emergency situation'' mean a natural or 
manmade disaster, such as a hurricane, flood, earthquake, mudslide, 
forest fire, snowstorm, terrorist act, biological outbreak, release of 
a dangerous radiological, chemical, explosive, or biological material, 
or a war-related activity, that poses a risk of death, serious illness, 
severe injury, or substantial property damage. The disaster may be 
local, regional, or national in scope.
    (b) Emergency Relief Docket. Each calendar year FRA creates an 
Emergency Relief Docket (ERD) in the publicly accessible Federal 
eRulemaking Portal (FeP). The FeP can be accessed 24 hours a day, seven 
days a week, via the Internet at the docket's Web site at http://
www.regulations.gov. All documents in the FeP are available for 
inspection and copying on the Web site or are available for examination 
at the DOT Docket Management Facility, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590 during regular 
business hours (9 a.m.-5 p.m.). By January 31st of each year, FRA 
publishes a notice in the Federal Register identifying by docket number 
the ERD for that year. A notice will also be placed in the previous 
year's ERD identifying the new docket number.
    (c) Determining the existence of an emergency event or an emergency 
situation. If the Administrator determines that an emergency event or 
an emergency situation identified in paragraph (a) of this section has 
occurred, or that an imminent threat of it occurring exists, and 
determines that public safety or recovery efforts require that the 
provisions of this section be implemented, the Administrator will 
activate the Emergency Relief Docket identified in paragraph (b) of 
this section. In determining whether an emergency exists, the 
Administrator may consider declarations of emergency made by local, 
State, or Federal officials, and determinations by the Federal 
government that a credible threat of a terrorist attack exists.
    (d) Notification. When possible, FRA will post the FRA 
Administrator's determination described in paragraph (c) of this 
section on its Web site at http://www.fra.dot.gov. FRA will also place 
the FRA Administrator's determination in the ERD as soon as 
practicable.
    (e) Content of petitions for emergency waivers. Petitions submitted 
to FRA pursuant to this section should specifically address how the 
petition is related to the emergency, and to the extent practicable, 
contain the information required under Sec.  211.9(a) and (b). The 
petition should at a minimum describe the following: how the petitioner 
or public is affected by the emergency (including the impact on 
railroad operations); what FRA regulations are implicated by the 
emergency (e.g., movement of defective equipment); how waiver of the 
implicated regulations would benefit petitioner during the emergency; 
and how long the petitioner expects to be affected by the emergency.
    (f) Filing requirements. Petitions filed under this section, shall 
be submitted using any of the following methods:
    (1) E-mail to FRA at: RRS.Correspondence@fra.dot.gov;
    (2) Facsimile to FRA at: 202-493-6309; or
    (3) Mail to FRA at: FRA Docket Clerk, Office of Chief Counsel, RCC-
10, Mail Stop 10, 1200 New Jersey Ave. SE., Washington, DC 20590, 
facsimile no. 202-493-6068.
    (g) FRA Handling and Initial Review. Upon receipt and initial 
review of a petition for waiver, to verify that it meets the criteria 
for use of these emergency procedures, FRA will add the petition to the 
ERD. The FeP numbers each document that is added to a docket. (For 
example, the first document submitted to the docket in 2009 will be 
identified as FRA-2009-XXX-1.) Thus, each petition submitted to the ERD 
will have a unique document number which should be identified on all 
communications related to petitions contained in this docket. If FRA 
determines that the petition does not meet the criteria for use of 
these emergency procedures, FRA will notify the petitioner and will 
process the petition under normal waiver procedures of this subpart.
    (h) Comments. Although the Administrator may waive compliance with 
any part of a regulation prescribed or order issued without prior 
notice and comment, comments may be submitted. Comments should be 
submitted as soon as possible, after a petition is available on the 
FeP. Any comment received will be considered to the extent practicable. 
All comments should identify the appropriate ERD and should identify 
the specific document number of the petition designated by the FeP in 
the ERD. Interested parties commenting on

[[Page 23336]]

a petition under this section should also include in their comments to 
the ERD telephone numbers at which their representatives may be 
reached. Interested parties may submit their comments using any of the 
following methods:
    (1) E-mail to FRA at: RRS.Correspondence@fra.dot.gov.
    (2) Facsimile to FRA at: 202-493-6309.
    (3) Mail to the Docket Clerk, DOT Docket Management Facility, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., 
Washington, DC 20590 or electronically via the internet at http://
www.regulations.gov. Any comments or information sent directly to FRA 
will be immediately provided to the DOT FeP for inclusion in the ERD.
    (i) Request for hearing. Although the Administrator may waive 
compliance with any part of a regulation prescribed or order issued 
without prior notice and comment, parties desiring a public hearing on 
any petition being processed under this section must notify FRA through 
the comment process identified in paragraph (h) of this section within 
72 hours from the close of business on the day that the petition is 
entered into and available on the FeP. In response to a request for a 
public hearing, FRA may:
    (1) Arrange a telephone conference between all interested parties 
to provide an opportunity for oral comment;
    (2) Arrange a public hearing pursuant to the provisions contained 
in 49 CFR part 211; or
    (3) Determine that a public hearing is unnecessary, inconsistent 
with safety, or not in the public interest.
    (j) Decisions. FRA may grant a petition for waiver without prior 
notice and comment if the Administrator determines that it is in the 
public interest to grant the waiver; the waiver is not inconsistent 
with railroad safety; and the waiver is necessary to address an actual 
or impending emergency situation or emergency event. The Administrator 
will state in the decision issued under this section the reasons for 
granting the waiver.
    (1) FRA reserves the right to reopen any docket and reconsider any 
decision made pursuant to these emergency procedures based upon its own 
initiative or based upon information or comments otherwise received.
    (2) FRA decision letters, either granting or denying a petition, 
will be posted in the appropriate ERD and will reference the document 
number of the petition to which it relates.
    (3) A waiver under this section may be issued for a period of not 
more that 60 days and may be renewed upon application to the 
Administrator only after notice and an opportunity for a hearing on the 
waiver. The Administrator will immediately revoke the waiver if 
continuation of the waiver would not be consistent with the goals and 
objectives of this part.
    (4) In granting a waiver under this section, the Administrator will 
consult and coordinate with other Federal agencies, as appropriate, for 
matters that may significantly impact such agencies.

    Issued in Washington, DC, on May 13, 2009.
Joseph Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. E9-11598 Filed 5-18-09; 8:45 am]

BILLING CODE 4910-06-P
