Railroad Noise Emission Compliance Regulations
| Citation | 84 FR 15142 |
| Record Number | 2019-07389 |
| Published date | 15 April 2019 |
| Section | Rules and Regulations |
| Court | Federal Railroad Administration |
Federal Register, Volume 84 Issue 72 (Monday, April 15, 2019)
[Federal Register Volume 84, Number 72 (Monday, April 15, 2019)]
[Rules and Regulations]
[Pages 15142-15145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07389]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 210
[Docket No. FRA-2017-0038, Notice No. 2]
RIN 2130-AC69
Railroad Noise Emission Compliance Regulations
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: In this final rule, FRA is eliminating the requirement that
certain locomotives display a badge or tag to demonstrate the railroad
has certified the locomotives comply with noise emission standards.
This final rule reduces economic burdens on the rail industry by
removing this badge or tag requirement.
DATES: This final rule is effective April 15, 2019.
ADDRESSES: 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: Michael Watson, Industrial Hygienist,
Office of Railroad Safety, Federal Railroad Administration, 1200 New
Jersey Avenue SE, W38-224, Washington, DC 20590 (telephone 202-493-
1388), or Sam Gilbert, Attorney, Office of Chief Counsel, Federal
Railroad Administration, 1200 New Jersey Avenue SE, W31-228,
Washington, DC 20590 (telephone 202-493-0270).
SUPPLEMENTARY INFORMATION:
I. Executive Summary
On January 30, 2017, the President issued Executive Order 13771,
which requires, when an agency proposes a new significant regulation,
it must identify at least two existing regulations to repeal. FRA
reviewed the Railroad Noise Emission Compliance Regulations in 49 CFR
part 210 \1\ (``part 210'') and identified for potential elimination
the requirement that railroads display a permanent badge or tag in the
cabs of their locomotives certifying the locomotives comply with
locomotive noise emission standards. Eliminating this requirement will
reduce economic burdens on the rail industry without adversely
impacting compliance with the standards. Therefore, in this final rule,
FRA eliminates the badge or tag requirement. FRA is making this rule
effective upon its publication, as this rule relieves a regulatory
burden, consistent with 5 U.S.C. 553(d)(1).
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\1\ Unless otherwise specified, all references to CFR sections
and parts in this document refer to title 49 of the CFR.
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FRA estimates there will be no cost burden associated with this
final rule. In fact, the elimination of the requirement to install a
badge or tag in locomotives will save railroads the cost of labor to
install the badge or tag, and the cost of the badge or tag itself. Over
a 20-year period, FRA estimates railroads will accrue a net present
value of $1 million using a 7 percent discount rate.
II. Background and History
Pursuant to the Noise Control Act of 1972 (86 Stat. 1234, Pub. L.
92-574), the Environmental Protection Agency (EPA)
[[Page 15143]]
promulgated standards in 40 CFR part 201 to limit the noise emitted by
railroad locomotives, cars, and other equipment. In consultation with
EPA, FRA developed regulations in 49 CFR part 210 to ensure compliance
with the noise emission standards. See 41 FR 49183, 49183-84 (Nov. 8,
1976).
Part 210 requires railroads to certify that locomotives built after
December 31, 1979, comply with locomotive noise emission standards.
Under Sec. 210.27(d), railroads must attach a permanent badge or tag
in the cab of the locomotive displaying the results of the
certification test (including the method, date, and location of the
test, and the sound level reading obtained during the test).
In 2014, the Association of American Railroads (AAR) requested FRA
eliminate the requirement to display the certification of compliance
with locomotive noise emission regulations in the locomotive, in its
comments on a separate proposed rule concerning stenciling requirements
for window glazing. AAR Comment, November 25, 2014, Docket No. FRA-
2012-0103. AAR noted that when FRA added Sec. 210.27(d) in 1983, few
locomotives had been tested and certified to comply with the noise
emission standards. AAR contended that instead of testing individual
locomotives for compliance with the noise emission standards, railroads
currently test locomotives by model. Locomotives are built to the
manufacturer's written specifications and those written specifications
detail the technical features of a locomotive's particular model,
including its certification under Sec. 210.27. Documentation of that
testing is maintained by the railroads as a usual and customary
practice, and may be consulted if FRA has a doubt about whether a
locomotive has been tested for compliance with locomotive noise
emission regulations.
FRA declined to eliminate the display requirement for noise
certification at that time because it was beyond the scope of the
window-glazing rulemaking. However, FRA said it would consider the
merits of AAR's request and evaluate how to address the issue in the
future. 81 FR 6775, 6778 (Feb. 9, 2016).
FRA continually reviews and revises its regulations to ensure the
regulatory burden on the rail industry is not excessive, clarify the
application of existing requirements and remove requirements no longer
necessary, and keep pace with emerging technology, changing operational
realities, and safety concerns. In addition, on January 30, 2017, the
President issued Executive Order 13771 (Reducing Regulation and
Controlling Regulatory Costs), which requires agencies to identify at
least two existing regulations to repeal when they propose a new
significant regulation. Because the badge or tag requirement is
unnecessary for FRA enforcement of the noise testing requirements, FRA
determined repealing Sec. 210.27(d) would reduce the burden on the
rail industry without adversely impacting FRA's ability to ensure
compliance with locomotive noise emission regulations. Accordingly, on
July 16, 2018 (83 FR 32826), FRA published a notice of proposed
rulemaking (NPRM) proposing to eliminate the requirement for
locomotives to display a permanent badge or tag certifying compliance
with noise emission standards.
III. Discussion of Comments
The NPRM solicited written comments from the public under the
Administrative Procedure Act (5 U.S.C. 553). By the close of the
comment period on September 14, 2018, FRA received one comment, a joint
comment from AAR and the American Short Line and Regional Railroad
Association (ASLRRA).
In the comment, AAR and ASLRRA stated railroads have been
advocating for the removal of the certification display requirement
since 2011. AAR and ASLRRA explained the certification display
requirement is no longer necessary because the overwhelming majority of
locomotives have already been tested by the manufacturers on a model-
by-model basis. Accordingly, AAR and ASLRRA supported the NPRM's
proposal to eliminate the certification display requirement.
FRA received no public comments conveying a need to change the
scope or substance of the proposed rule. Therefore, in this final rule
FRA eliminates the requirement for locomotives to display a permanent
badge or tag certifying compliance with noise emission standards.
IV. Section-by-Section Analysis
Section 210.27 New Locomotive Certification
Section 210.27 requires railroads to certify that their locomotives
comply with noise emission standards. Specifically, paragraph (a)
requires railroads to certify that locomotives built after December 31,
1979, comply with the noise emission standards. Paragraph (b) provides
railroads must determine certification for each locomotive model by
load cell testing or passby testing. Paragraph (c) states if railroads
use passby testing, they should conduct the test with the locomotive
operating at maximum rated horsepower output. Under paragraph (d),
railroads must attach a permanent badge or tag in the cab of the
locomotive to display the results of the certification test.
FRA determined this permanent badge or tag is no longer necessary,
and this final rule removes paragraph (d) in its entirety. FRA notes
although railroads no longer need to display a badge or tag in the
locomotive cab, the locomotives still need to be tested and certified
to comply with the noise emission standards, as required under
paragraphs (a) through (c) of this section.
V. Regulatory Impact and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
FRA evaluated this final rule consistent with existing policies and
procedures, and determined it to be non-significant under Executive
Order 12866 as well as DOT policies and procedures (44 FR 11034
(February 26, 1979)). This final rule is considered an Executive Order
13771 deregulatory action. Details on the estimated cost savings of the
rule can be found in the rule's economic analysis.
FRA is eliminating the requirement that locomotives display a
permanent badge or tag to demonstrate they have been certified to
comply with noise emission standards. (The permanent badge or tag will
hereafter be referred to as a ``badge'' in this analysis.) A badge is
typically a metal plate installed inside the cab of the locomotive.
Railroads will benefit from this final rule because a badge had been
required in all locomotives. Any railroad purchasing new locomotives
will not be required to display a badge, therefore saving it money.
Also, badges will no longer need to be replaced when locomotives are
overhauled.
FRA estimates there will be no cost burden associated with this
final rule. The elimination of the requirement to install a badge in
locomotives will save railroads the cost of labor to install the badge,
and the cost of the badge itself. Over a 20-year period, this analysis
finds $1 million in present value cost savings, estimated using a 7
percent discount rate. FRA has prepared and placed in the docket a
regulatory analysis addressing the economic impact of this rule.
Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (RFA) (94 Stat. 1164, Pub. L. 96-
354), as amended, and codified as amended at 5 U.S.C. 601-612, and
Executive Order
[[Page 15144]]
13272 (Proper Consideration of Small Entities in Agency Rulemaking),
require agency review of proposed and final rules to assess their
impact on ``small entities'' for purposes of the RFA. An agency must
prepare a regulatory flexibility analysis unless it determines and
certifies a rule is not expected to have a significant economic impact
on a substantial number of small entities. FRA has determined this
final rule will not have a significant economic impact on a substantial
number of small entities.
Federal agencies may adopt their own size standards for small
entities, in consultation with the Small Business Administration and in
conjunction with public comment. FRA published a final statement of
agency policy that formally designates ``small entities'' or ``small
businesses'' as being railroads, contractors, and hazardous materials
shippers with the revenue of a Class III railroad as set forth in 49
CFR 1201.1-1, which is $20 million or less in inflation-adjusted annual
revenues, and commuter railroads or small governmental jurisdictions
that serve populations of 50,000 or less. See 68 FR 24891 (May 9,
2003), codified at 49 CFR part 209, appendix C. FRA is using this
definition for this rulemaking.
FRA estimates there are 704 Class III railroads, most of which will
be affected by this final rule. Most Class III railroads do not
purchase new locomotives; rather, they purchase used locomotives from
Class I and Class II railroads. Therefore, any badges required will
have already been installed when obtained from the larger railroad. If
a small railroad did purchase a new locomotive, however, they would
save money because the badge would no longer be required. Small
railroads will also benefit since they will not need to replace badges
as they age or when locomotives are overhauled. Therefore, any impact
on small railroads by this final regulation will likely be small and
entirely beneficial. Thus, pursuant to the RFA, 5 U.S.C. 601(b), the
FRA Administrator hereby certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
Paperwork Reduction Act
The information collection requirements in this final rule are
being submitted to the Office of Management and Budget (OMB) for review
and approval in accordance with 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
requirement are as follows:
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Respondent Total annual Average time per Total annual
CFR section universe responses response burden hours
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210.27(a)--New Locomotive 4 Manufacturers... 4 requests........ 30 minutes........ 2 hours.
Certification--Request to
Manufacturer for Certification.
210.27(d)--New Locomotive 4 Manufacturers... 790 badges........ 30 minutes........ minus 395 hours
Certification--Identification (Previously
of Certified Locomotive by Approved Burden
Badge Plate (Rescission of by OMB).
Provision).
210.31--Recorded Measurements of 4 Manufacturers... 745 forms/records. 3 hours........... 2,235 hours.
Locomotive Noise Emission Test.
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Total....................... 4 Manufacturers... 749 responses..... 2.987 hours....... 2,237 hours
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All estimates include the time for reviewing instructions,
searching existing data sources, gathering or maintaining the needed
data, and reviewing the information.
For information or a copy of the paperwork package submitted to
OMB, contact Mr. Robert Brogan, Information Collection Clearance
Officer, Office of Railroad Safety, FRA, at 202-493-6292, or Ms.
Kimberly Toone, Information Collection Clearance Officer, Office of
Information Technology, FRA, at 202-493-6132.
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 email to Mr. Brogan at [email protected], or to Ms.
Toone at [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this document 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.
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 current OMB control number for this information collection is OMB
No. 2130-0527.
Federalism Implications
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable 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
(Federalism), agencies 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.
FRA analyzed this final rule consistent with the principles and
criteria in Executive Order 13132. FRA determined the final rule will
not have substantial direct effects on States, on the relationship
between the national government and States, or on the distribution of
power and responsibilities among the various levels of government. In
addition, FRA determined this final rule will not impose substantial
direct compliance costs on State and local governments.
[[Page 15145]]
Therefore, the consultation and funding requirements of Executive Order
13132 do not apply.
However, this final rule could have preemptive effect under certain
provisions of the Federal railroad safety statutes, specifically the
former Federal Railroad Safety Act of 1970 (former FRSA), repealed and
re-codified at 49 U.S.C. 20106, and the former Locomotive Boiler
Inspection Act (LIA) at 45 U.S.C. 22-34, repealed and re-codified at 49
U.S.C. 20701-03. The former FRSA 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 hazard'' exception to section 20106. Moreover, the U.S.
Supreme Court has held the former LIA preempts the field concerning
locomotive safety. See Napier v. Atl. Coast Line R.R., 272 U.S. 605
(1926) and Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625 (2012).
Therefore, it is possible States could be preempted from requiring that
locomotives display a permanent badge or tag certifying the locomotive
complies with noise emission standards.
Environmental Impact
FRA has evaluated this final rule consistent 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 this
final 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. 64 FR 28547-48.
Under section 4(c) and (e) of FRA's Procedures, the agency has
further concluded no extraordinary circumstances exist with respect to
this regulation that might trigger the need for a more detailed
environmental review. Consequently, FRA finds this final rule is not a
major Federal action significantly affecting the quality of the human
environment.
Unfunded Mandates Reform Act of 1995
Under Section 201 of the Unfunded Mandates Reform Act of 1995, 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 promulgation of any rule that
includes any Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) 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. This final rule will not
result in the expenditure, in the aggregate, of $100,000,000 or more in
any one year (adjusted annually for inflation), and thus preparation of
such a statement is not required.
List of Subjects in 49 CFR Part 210
Noise control.
The Rule
For the reasons discussed in the preamble, FRA amends part 210 of
chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:
PART 210--RAILROAD NOISE EMISSION COMPLIANCE REGULATIONS
0
1. The authority citation for part 210 is revised to read as follows:
Authority: Sec. 17, Pub. L. 92-574, 86 Stat. 1234 (42 U.S.C.
4916); 49 CFR 1.89.
Sec. 210.27 [Amended]
0
2. Amend Sec. 210.27 by removing paragraph (d).
Issued in Washington, DC.
Ronald L. Batory,
Administrator.
[FR Doc. 2019-07389 Filed 4-12-19; 8:45 am]
BILLING CODE 4910-06-P
