
[Federal Register Volume 76, Number 164 (Wednesday, August 24, 2011)]
[Proposed Rules]
[Pages 52918-52929]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21454]


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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

[[Page 52919]]

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,                 $91,793,822       $121,119,324
 Including Maintenance............
Reduced Wayside Costs, Including          515,695,631        680,445,643
 Maintenance......................
Reduced Locomotive Costs,                  12,479,834         16,466,785
 Including Maintenance............
                                   -------------------------------------
    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:

[[Page 52920]]



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

------------------------------------------------------------------------
                                                        7%         3%
                Benefit-cost ratio                   Discount   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 Sec.  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 Sec.  236.1005(b)(4)(i)(A) 
and subsequently moved to a new Sec.  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

[[Page 52921]]

delaying the effective date of 49 CFR 236.1005(b)(4)(i)(A)(2)(iii), as 
revised under Sec.  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

[[Page 52922]]

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 Sec.  
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 Sec.  236.1003 would not change the 
meaning of the term as understood under Sec.  236.1005(b)(1)(i) or its 
cross-referenced Sec. Sec.  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 Sec.  236.1005(b). On September 27, 2010, FRA issued 
amendments to the PTC rule, moving the text to a new Sec.  236.1020 and 
providing more clarifying language. To ensure continuity and 
understanding, however, Sec.  236.1005 contained various cross-
references to Sec.  236.1020. As indicated below, FRA is proposing to 
eliminate Sec.  236.1020. Accordingly, FRA also proposes rule text 
changes to Sec.  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 
Sec.  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

[[Page 52923]]

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,                 $91,793,822       $121,119,324
 Including Maintenance............
Reduced Wayside Costs, Including          515,695,631        680,445,643
 Maintenance......................
Reduced Locomotive Costs,                  12,479,834         16,466,785
 Including Maintenance............
                                   -------------------------------------
    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

[[Page 52924]]

 
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.


------------------------------------------------------------------------
                                                        7%         3%
                Benefit-cost ratio                   Discount   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

[[Page 52925]]

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:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
           CFR Section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
234.275--Processor-Based Systems-- 20 Railroads.......  25 letters.........  4 hours............             100
 Deviations from Product Safety
 Plan (PSP)--Letters.
236.18--Software Mgmt Control      184 Railroads......  184 plans..........  2,150 hours........         395,600
 Plan.
--Updates to Software Mgmt.        90 Railroads.......  20 updates.........  1.50 hours.........              30
 Control Plan.
236.905--Updates to RSPP.........  78 Railroads.......  6 plans............  135 hours..........             810
--Response to Request For          78 Railroads.......  1 updated doc......  400 hours..........             400
 Additional Info.
--Request for FRA Approval of      78 Railroads.......  1 request/modified   400 hours..........             400
 RSPP Modification.                                      RSPP.
236.907--Product Safety Plan       5 Railroads........  5 plans............  6,400 hours........          32,000
 (PSP)--Dev.
236.909--Minimum Performance
 Standard.
--Petitions For Review and         5 Railroads........  2 petitions/PSP....  19,200 hours.......          38,400
 Approval.
--Supporting Sensitivity Analysis  5 Railroads........  5 analyses.........  160 hours..........             800
236.913--Notification/Submission   6 Railroads........  1 joint plan.......  25,600 hours.......          25,600
 to FRA of Joint Product Safety
 Plan (PSP).
--Petitions For Approval/          6 Railroads........  6 petitions........  1,928 hours........          11,568
 Informational Filings.
--Responses to FRA Request For     6 Railroads........  2 documents........  800 hours..........           1,600
 Further Info. After
 Informational Filing.
--Responses to FRA Request For     6 Railroads........  6 documents........  16 hours...........              96
 Further Info. After Agency
 Receipt of Notice of Product
 Development.
--Consultations..................  6 Railroads........  6 consults.........  120 hours..........             720
--Petitions for Final Approval...  6 Railroads........  6 petitions........  16 hours...........              96
--Comments to FRA by Interested    Public/RRs.........  7 comments.........  240 hours..........           1,680
 Parties.
--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.  6 Railroads........  6 documents........  3,200 hours........          19,200
 Filings.
236.917--Retention of Records....  ...................  ...................  160,000 hrs........
--Results of tests/inspections     6 Railroads........  3 documents/records  160,000 hrs.;               360,000
 specified in PSP.                                                            40,000 hrs.
--Report to FRA of                 6 Railroads........  1 report...........  104 hours..........             104
 Inconsistencies with frequency
 of safety-relevant hazards in
 PSP.
236.919--Operations & Maintenance
 Man.
--Updates to O & M Manual........  6 Railroads........  6 updated docs.....  40 hours...........             240
--Plans For Proper Maintenance,    6 Railroads........  6 plans............  53,335 hours.......         320,010
 Repair, Inspection of Safety-
 Critical Products.
--Hardware/Software/Firmware       6 Railroads........  6 revisions........  6,440 hours........          38,640
 Revisions.
236.921--Training Programs:        6 Railroads........  6 Tr. Programs.....  400 hours..........           2,400
 Development.
--Training of Signalmen &          6 Railroads........  300 signalmen; 20    40 hours...........          12,400
 Dispatchers.                                            dispatchers.        20 hours...........
236.923--Task Analysis/Basic       6 railroads........  6 documents........  720 hours..........           4,320
 Requirements: Necessary
 Documents.
--Records........................  6 railroads........  350 records........  10 minutes.........              58
 
   SUBPART I--NEW REQUIREMENTS
 
--236.1001--RR Development of      46 railroads.......  3 rules............  80 hours...........             240
 More Stringent Rules Re: PTC
 Performance Stds.
--236.1005--Requirements for PTC
 Systems.
--Temporary Rerouting: Emergency   46 railroads.......  50 requests........  8 hours............             400
 Requests.
--Written/Telephonic Notification  46 railroads.......  50 notifications...  2 hours............             100
 to FRA Regional Administrator.
--Temporary Rerouting Requests     46 railroads.......  760 requests.......  8 hours............           6,080
 Due to Track Maintenance.
--Temporary Rerouting Requests     46 railroads.......  380 requests.......  8 hours............           3,040
 That Exceed 30 Days.
--236.1006--Requirements for
 Equipping Locomotives Operating
 in PTC Territory.
--Reports of Movements in Excess   46 railroads.......  45 reports + 45      8 hours + 170......           8,010
 of 20 Miles/RR Progress on PTC                          reports.
 Locomotives.
--PTC Progress Reports...........  46 railroads.......  35 reports.........  16 hours...........             560
--236.1007--Additional
 Requirements for High Speed
 Service.
--Required HSR-125 Documents with  46 railroads.......  3 documents........  3,200 hours........           9,600
 approved PTCSP.
--Requests to Use Foreign Service  46 railroads.......  2 requests.........  8,000 hours........           6,000
 Data.

[[Page 52926]]

 
--PTC Railroads Conducting         46 railroads.......  3 documents........  3,200 hours........           9,600
 Operations at More than 150 MPH
 with HSR-125 Documents.
--Requests for PTC Waiver........  46 railroads.......  1 request..........  1,000 hours........           1,000
236.1009-Procedural Requirements.
--Host Railroads Filing PTCIP or   46 Railroads.......  1 PCTIP; 20 RFAs...  535 hours; 320                6,935
 Request for Amendment (RFAs).                                                hours.
--Jointly Submitted PTCIPs.......  46 Railroads.......  5 PTCIPs...........  267 hours..........           1,335
--Notification of Failure to File  46 Railroads.......  1 notification.....  32 hours...........              32
 Joint PTCIP.
--Comprehensive List of Issues     46 Railroads.......  1 list.............  80 hours...........              80
 Causing Non-Agreement.
--Conferences to Develop Mutually  46 Railroads.......  1 conf. calls......  60 minutes.........          1 hour
 Acceptable PCTIP.
--Type Approval..................  46 Railroads.......  2 Type Appr........  8 hours............              16
--PTC Development Plans            46 Railroads.......  20 Ltr. + 20 App; 2  8 hrs/1600 hrs.;             44,960
 Requesting Type Approval.                               Plans.               6,400 hours.
--Notice of Product Intent w/      46 Railroads.......  3 NPI; 1 IP........  1,070 + 535 hrs....           3,745
 PTCIPs (IPs).
--PTCDPs with PTCIPs (DPs + IPs).  46 Railroads.......  1 DP...............  2,135 hours........           2,135
--Updated PTCIPs w/PTCDPs (IPs +   46 Railroads.......  1 IP; 1 DP.........  535 + 2,135 hrs....           2,670
 DPs).
--Disapproved/Resubmitted PTCIPs/  46 Railroads.......  1 IP + 1 NPI.......  135 + 270 hrs......             405
 NPIs.
--Revoked Approvals--Provisional   46 Railroads.......  IP + 1 DP..........  135 + 535 hrs......             670
 IPs/DP.
--PTC IPs/PTCDPs Still Needing     46 Railroads.......  1 IP + 1 DP........  135 + 535 hrs......             670
 Rework.
--PTCIP/PTCDP/PTCSP Plan           46 Railroads.......  1 document.........  8,000 hours........           8,000
 Contents--Documents Translated
 into English.
--Requests for Confidentiality...  46 Railroads.......  46 ltrs; 46 docs...  8 hrs.; 800 hrs....          37,168
--Field Test Plans/Independent     46 Railroads.......  230 field tests; 2   800 hours..........         185,600
 Assessments--Req. by FRA.                               assessments.
--FRA Access: Interviews with PTC  46 Railroads.......  92 interviews......  30 minutes.........              46
 Wrkrs.
--FRA Requests for Further         46 Railroads.......  8 documents........  400 hours..........           3,200
 Information.
236.1011--PTCIP Requirements--     7 Interested Groups  1 rev.; 40 com.....  143 + 8 hrs........             463
 Comment.
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   46 Railroads.......  3 conferences......  32 hours...........              96
 FRA regarding Case/Analysis.
--Mixed Sys. PTCSPs (incl. safety  46 Railroads.......  1 PTCSP............  28,800 hours.......          28,800
 case).
--FRA Request for Additional       46 Railroads.......  23 documents.......  3,200 hours........          73,600
 PTCSP Data.
--PTCSPs Applying to Replace       46 Railroads.......  23 PTCSPs..........  3,200 hours........          73,600
 Existing Certified PTC Systems.
--Non-Quantitative Risk            46 Railroads.......  23 assessments.....  3,200 hours........          73,600
 Assessments Supplied to FRA.
236.1017--PTCSP Supported by       46 Railroads.......  1 assessment.......  8,000 hours........           8,000
 Independent Third Party
 Assessment.
--Written Requests to FRA to       46 Railroads.......  1 request..........  8 hours............               8
 Confirm Entity Independence.
--Provision of Additional          46 Railroads.......  1 document.........  160 hours..........             160
 Information After FRA Request.
--Independent Third Party          46 Railroads.......  1 request..........  160 hours..........             160
 Assessment: Waiver Requests.
--RR Request for FRA to Accept     46 Railroads.......  1 request..........  32 hours...........              32
 Foreign Railroad Regulator
 Certified Info.
236.1019--Main Line Track
 Exceptions.
--Submission of Main Line Track    46 Railroads.......  46 MTEAs...........  160 hours..........           7,360
 Exclusion Addendums (MTEAs).
--Passenger Terminal Exception--   46 Railroads.......  23 MTEAs...........  160 hours..........           3,680
 MTEAs.
--Limited Operation Exception--    46 Railroads.......  23 plans...........  160 hours..........           3,680
 Risk Mit.
--Ltd. Exception--Collision        46 Railroads.......  12 analyses........  1,600 hours........          19,200
 Hazard Anal.
--Temporal Separation Procedures.  46 Railroads.......  11 procedures......  160 hours..........           1,760
236.1021--Discontinuances,         46 Railroads.......  23 RFAs............  160 hours..........           3,680
 Material Modifications,
 Amendments--Requests to Amend
 (RFA) PTCIP, PTCDP or PTCSP.
--Review and Public Comment on     7 Interested Groups  7 reviews + 20       3 hours; 16 hours..             341
 RFA.                                                    comments.
236.1023--PTC Product Vendor       46 Railroads.......  46 lists...........  8 hours............             368
 Lists.
--RR Procedures Upon Notification  46 Railroads.......  46 procedures......  16 hours...........             736
 of PTC System Safety-Critical
 Upgrades, Rev., Etc.
--RR Notifications of PTC Safety   46 Railroads.......  150 notification...  16 hours...........           2,400
 Hazards.
--RR Notification Updates........  46 Railroads.......  150 updates........  16 hours...........           2,400
--Manufacturer's Report of         5 System Suppliers.  5 reports..........  400 hours..........           2,000
 Investigation of PTC Defect.

[[Page 52927]]

 
--PTC Supplier Reports of Safety   5 System Suppliers.  150 reports + 150    16 hours + 8 hours.           3,600
 Relevant Failures or Defective                          rpt. copies.
 Conditions.
236.1029--Report of On-Board Lead  46 Railroads.......  1,012 reports......  96 hours...........          97,152
 Locomotive PTC Device Failure.
236.1031--Previously Approved PTC
 Systems.
--Request for Expedited            46 Railroads.......  3 REC Letters......  160 hours..........             480
 Certification (REC) for PTC
 System.
--Requests for Grandfathering on   46 Railroads.......  3 requests.........  1,600 hours........           4,800
 PTCSPs.
236.1035--Field Testing            46 railroads.......  230 field test       800 hours..........         184,000
 Requirements.                                           plans.
--Relief Requests from             46 Railroads.......  46 requests........  320 hours..........          14,720
 Regulations Necessary to Support
 Field Testing.
236.1037--Records Retention.
--Results of Tests in PTCSP and    46 railroads.......  1,012 records......  4 hours............           4,048
 PTCDP.
--PTC Service Contractors          46 Railroads.......  22,080 records.....  30 minutes.........          11,040
 Training Records.
--Reports of Safety Relevant       46 Railroads.......  4 reports..........  8 hours............              32
 Hazards Exceeding Those in PTCSP
 and PTCDP.
--Final Report of Resolution of    46 Railroads.......  4 final reports....  160 hours..........             640
 Inconsistency.
--236.1039--Operations &           46 railroads.......  46 manuals.........  250 hours..........          11,500
 Maintenance Manual (OMM):
 Development.
--Positive Identification of       46 railroads.......  120,000 i.d.         1 hour.............         120,000
 Safety-critical components.                             components.
--Designated RR Officers in OMM.   46 railroads.......  92 designations....  2 hours............             184
 regarding PTC issues.
--236.1041--PTC Training Programs  46 Railroads.......  46 programs........  400 hours..........          18,400
--236.1043--Task Analysis/Basic    46 railroads.......  46 evaluations.....  720 hours..........          33,120
 Requirements: Training
 Evaluations.
--Training Records...............  46 railroads.......  560 records........  10 minutes.........              93
--236.1045--Training Specific to   46 railroads.......  32 trained           20 hours...........             640
 Office Control Personnel.                               employees.
--236.1047--Training Specific to
 Loc. Engineers & Other Operating
 Personnel.
--PTC Conductor Training.........  30 railroads.......  8,000 trained        3 hours............          24,000
                                                         conductors.
----------------------------------------------------------------------------------------------------------------

    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

[[Page 52928]]

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 Sec.  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 Sec.  236.1003 by adding the definition ``PIH Materials'' 
to paragraph (b) to read as follows:


Sec.  236.1003  Definitions.

* * * * *
    (b) * * *
    PIH Materials means materials poisonous by inhalation, as defined 
in Sec. Sec.  171.8, 173.115, and 173.132 of this title.
* * * * *
    3. Amend Sec.  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:

[[Page 52929]]

Sec.  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.
* * * * *


Sec.  236.1020  [Removed and reserved]

    4. Remove and reserve Sec.  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


