Meetings: Small business communication and enforcement policies and procedures; small entity definition,
[Federal Register: August 25, 1999 (Volume 64, Number 164)]
[Notices]
[Page 46468-46470]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au99-128]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA--1999--6086; (Formerly FRA Docket No. SBR 97-1)]
RIN No. 2130-AB15
Notice of Public Meeting
AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT).
ACTION: Notice of public meeting.
SUMMARY: In this notice, FRA announces a public meeting that will take place on September 28, 1999 in Washington, D. C. The purpose of the meeting is to discuss the definition of ``small entity,'' for purposes of FRA's small business communication and enforcement policies and procedures, in order to determine the scope of the entities subject to those programs. FRA previously published an Interim Policy Statement Concerning Small Entities Subject to the Railroad Safety Laws and invited comment on the definition of ``small entity'' at that time. FRA received comments from interested parties and plans to discuss those at this meeting.
DATES: Meeting Date: The public meeting will be held on September 28, 1999; 10 a.m. in Conference Room 1 of the FRA, 1120 Vermont Ave., NW, Seventh Floor, Washington, DC.
Written Comments: (1) Written comments must be submitted to DOT's Central Docket Management Facility by September 20, 1999. Commenters should reference the docket number and
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submit two copies of their comments. Any party that submitted comments to Notice #1 of this proceeding, in former docket number SBR 97-1, need not file comments in this proceeding unless the party has additional or alternate information to submit to FRA.
Notice of Attendance: Any party who wishes to attend or participate in the public hearing should notify the FRA Docket Clerk by September 20, 1999.
ADDRESSES: Written Comments: Written comments should be submitted to the DOT's Central Docket Management Facility at Room PL 401, 400 Seventh Street, SW, Washington, DC 20590-0001. All documents in the docket are available for inspection and copying at DOT's Central Docket Management Facility, Plaza level of the Nassif Building at the US Department of Transportation, Room PL 401, 400 Seventh Street, SW, Washington, DC 20590-0001 between the hours of 10 a.m. and 5 p.m. Contents of the docket are also available for viewing on the Internet at http://dms.dot.gov.
Registration: Persons wishing to register for the meeting may do so by contacting Ms. Renee Bridgers, FRA Docket Clerk at 202-493-6030 or by writing her at Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW, Washington, DC 20590. Ms. Bridgers may also be contacted by e-mail at RENEE.BRIDGERS@FRA.DOT.GOV. Any party wishing to attend and participate in the public meeting should notify Ms. Bridgers no later than September 20, 1999.
FOR FURTHER INFORMATION PLEASE CONTACT:
(1) Principal Program Officer: Edward R. English, Director, Office of Safety Enforcement, 400 Seventh Street, SW, Mail Stop 25, Washington, DC 20590; telephone: 202-493-6244.
(2) Principal Economist: Jeffery Horn, Office of Safety Analysis, Planning and Evaluation Division, 400 Seventh Street, SW, Mail Stop 25, Washington, DC 20590; telephone: 202-493-6283.
(3) Principal Attorney: Christine Beyer, Office of Chief Counsel, FRA, 400 Seventh Street, SW, Mail Stop 10, Washington, DC 20590; telephone: 202-493-6027.
SUPPLEMENTARY INFORMATION:
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Background
FRA has broad statutory authority to regulate all areas of railroad safety, and pursuant to that authority, administers comprehensive regulatory and enforcement programs to address the safety of equipment, track and roadbed, and workplace safety in the railroad industry. FRA's implementation of these regulatory and enforcement programs includes consideration of the unique concerns of small entities and seeks to minimize adverse economic burdens on them where possible. Small businesses play a vital role in the economic and operational health of the railroad industry, and consequently, it has been FRA's longstanding policy to devote attention to the special needs of small entities, both in the way the agency communicates and in the agency's enforcement efforts.
The Congress enacted The Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA) to address a variety of issues relating to the federal treatment of small businesses. SBREFA established new requirements for federal agencies to follow with respect to small entities, created new duties for the Small Business Administration (SBA), and amended the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) and the Equal Access to Justice Act (5 U.S.C. 501, et seq.) SBREFA required federal agencies to institute communication and enforcement polices that would give consideration to the unique concerns of small businesses within their jurisdiction. As a result of SBREFA, FRA formalized its existing communication and enforcement policies by incorporating them into written form, and published the Interim Policy Statement Concerning Small Entities Subject to the Railroad Safety Laws (Interim Policy Statement) on August 11, 1997. 62 FR 43024. The Interim Policy Statement outlines FRA's communication efforts and commitments with respect to small entities, and explains how the agency seeks to accommodate the unique characteristics and limited profit margins of small companies in enforcing the railroad safety standards.
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Definition of Small Entity in the Railroad Industry
In the Interim Policy Statement, FRA articulated its communication and enforcement policies concerning small entities, and discussed the meaning of the term ``small entity'' for purposes of the formalized policies. The Interim Policy Statement explained that SBREFA incorporated the definition for ``small entity'' established by existing law for those businesses to be covered by the federal policies. See, 5 U.S.C. 601, 15 U.S.C. 632, 13 CFR part 121. Generally, a small entity is a business concern that is independently owned and operated, and is not dominant in it field of operation. SBA was granted authority to develop size categories through regulation, which clarify the term ``small entity'' by industry, using number of employees or annual income as criteria. In the SBA regulations, main line railroads with 1500 or fewer employees, and switching or terminal establishments with 500 or fewer employees constitute small entities. However, an agency may establish one or more other definition for this term, in consultation with the SBA and after opportunity for public comment, that are appropriate to the agency's activities. Also, ``small governmental jurisdictions'' that serve populations of 50,000 or less are small entities. (This is significant for the railroad industry because commuter operations are governmental jurisdictions, and some may fit within this statutory definition for small governmental jurisdictions, or small entities, for purposes of treatment under SBREFA.)
As the Interim Policy Statement noted, the Interstate Commerce Commission (ICC) had developed a size classification system for freight railroads, based on annual operating revenue, long before SBA's regulations establishing size categories were promulgated. (The qualifying criteria for the ICC classifications are set forth in 49 CFR part 1201.) The ICC classification system has been used pervasively by the railroad industry and FRA to identify entities by size, and the Surface Transportation Board (STB), which succeeded the ICC, has not changed these classifications. In consultation with SBA, and as a result of its own judgment concerning railroad safety and appropriate limits on the number and economic status of companies that should take advantage of the benefits provided by SBREFA and the Interim Policy Statement, FRA determined that the ICC size classifications should be used, at least on an interim basis, in the railroad industry. Therefore, the Interim Policy Statement established that ``small entity'' in the railroad industry would be Class III railroads, shippers and railroad contractors that meet the economic limits set for Class III railroads, and commuter operations that serve population centers of 50,000 or less. The current annual operating revenue benchmark for Class III railroads is $20 million, adjusted by applying the railroad revenue deflator adjustment; this figure may change, based on calculations made by the STB and consistent with economic trends. However, FRA requested comments from the industry concerning this decision, and alternate classifications that would identify small companies in need of special treatment in such a way
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that railroad safety would not be compromised and the intent of SBREFA would be met.
In addition to establishing this interim definition for the railroad industry in the Interim Policy Statement, FRA requested comment on a variety of potential definitions: (1) Fifteen employees subject to the hours of service laws, which Congress used as a benchmark for small business exemptions in the hours of service law, 49 U.S.C. 21102(b); (2) a total of at least 400,000 person/hours worked annually, which equates to approximately 200 employees and which FRA has used as a size classification previously; (3) the Class III designation currently in use; (4) the employee delineations established by SBA regulation; (5) any combination of these; and (6) entirely new designations. FRA invited comment on these possible definitions from all interested parties, and asked those submitting comments to provide the rationale for the proposals offered, including economic and employee data, operating concerns, and an explanation of how SBREFA's intent would be met by adoption of a particular definition. In addition, FRA stated that the agency would conduct a public meeting to discuss comments received and adoption of a permanent definition for ``small entity.''
In response to the Interim Policy Statement, the National Railroad Construction and Maintenance Association, Inc. (NRC) and The American Short Line Railroad Association (now known as The American Short Line and Regional Railroad Association) (ASLRRA) submitted comments to FRA. The comments of these organizations are available for review in the docket of this proceeding. In general terms, the NRC urged FRA to adopt the 400,000/person hours designation, and the ASLRRA urged FRA to expand its definition to include Class II, as well as Class III companies, in its definition of ``small entity.'' Class II railroads are those with annual operating revenues in excess of $20 million and less than $250 million.
FRA will hold a public meeting on September 28 at 10:00 a.m. to discuss these proposals, others FRA has outlined above, and all other appropriate proposals that have not yet been illuminated. FRA also requests comment on methods by which flexibility might be incorporated into the definition to address changing economic trends; sudden changes in employee staffing levels; the development of low cost, innovative equipment improvements; and other future events that could make the definition FRA adopts now obsolete in a very short time. It is important to note that any new definition of ``small entity'' FRA adopts in this proceeding must be consistent with the principles of railroad safety and the intent of SBREFA. That is to say, a definition based solely on economic considerations would not suffice. FRA's statutory mandate and SBREFA require that the safety and health of the public, railroad employees, and the environment are the predominant concerns where a company's economic fitness is juxtaposed against them. Therefore, FRA asks that commenters and participants in the public meeting address how their respective proposals would meet the statutory requirements involved, if the definition proposed broadly covers a substantial sector of the industry, or includes entities in robust financial condition. Participants should keep in mind that the ``small entity'' definition FRA ultimately adopts will not necessarily determine the reach of any particular safety rule. This determination will be used in FRA's communication and enforcement policies under SBREFA. FRA may, as it has in the past, choose different criteria to determine the applicability, content, or effective date of any regulatory provision.
Although the public meeting will be transcribed by a court reporter, it will be conducted in an informal manner. Participants who wish to make an opening statement concerning FRA's definition of ``small entity'' may do so. However, FRA anticipates that all participants and agency representatives will engage in an informal dialogue of questions and answers concerning this subject.
Comments Requested
FRA invites written comments on the definition of ``small entity,'' potential alternate definitions, and supporting rationale for the suggested alternative definitions. Please direct all written comments to the DOT's Central Docket Management Facility, Room PL 401, 400 Seventh Street, SW Washington, DC 20590-0001. Any party that prepared written comments in response to Notice No. 1 in this proceeding in 1997 need not file comments again, unless there is additional or alternate information to share.
Any party wishing to attend the public meeting must notify the FRA Docket Clerk in writing by September 20; any party wishing to attend and participate in the meeting must notify the FRA Docket Clerk in writing by September 20, 1999.
Submitted in Washington, DC, on August 20th, 1999. Jolene M. Molitoris, Administrator.
[FR Doc. 99-22000Filed8-24-99; 8:45 am]
BILLING CODE 4910-06-P
