[Federal Register Volume 86, Number 141 (Tuesday, July 27, 2021)]
[Rules and Regulations]
[Pages 40154-40182]
[FR Doc No: 2021-15544]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 236

[Docket No. FRA-2019-0075, Notice No. 2]
RIN 2130-AC75

Positive Train Control Systems

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

ACTION: Final rule.

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SUMMARY: FRA is revising its regulations governing changes to positive
train control (PTC) systems and reporting on PTC system performance.
First, recognizing that the railroad industry intends to enhance FRA-
certified PTC systems to continue improving rail safety and PTC
technology's reliability and operability, FRA is modifying the process
by which a host railroad must submit a request for amendment (RFA) to
FRA before making certain changes to its PTC Safety Plan (PTCSP) and
FRA-certified PTC system. Second, to enable more effective FRA
oversight, this final rule: Expands an existing reporting requirement
by increasing the frequency from annual to biannual; broadens the
reporting requirement to encompass positive performance-related
information, including about the technology's positive impact on rail
safety, not just failure-related information; and requires host
railroads to utilize a new, standardized report form.

DATES: This final rule is effective August 26, 2021.

ADDRESSES: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov at any time and
search for Docket No. FRA-2019-0075.

FOR FURTHER INFORMATION CONTACT: Gabe Neal, Deputy Staff Director,
Signal, Train Control, and Crossings Division, telephone:<PHONE_NUMBER>,
email<EMAIL_ADDRESS>or Stephanie Anderson, Attorney Adviser,
telephone:<PHONE_NUMBER>, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Background and Public Participation
    A. Legal Authority To Prescribe PTC Regulations
    B. Public Participation Prior to the Issuance of the NPRM
    C. Introduction to Comments on the NPRM
III. Summary of the Main Provisions in the Final Rule
    A. Establishing a New Process for Modifying FRA-Certified PTC
Systems and the Associated PTCSPs
    B. Expanding the Performance-Related Reporting Requirements
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866 (Regulatory Planning and Review)
    B. Regulatory Flexibility Act and Executive Order 13272;
Regulatory Flexibility Certification
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Executive Order 12898 (Environmental Justice)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact

I. Executive Summary

    Section 20157 of title 49 of the United States Code (U.S.C.)
mandates each Class I railroad, and each entity providing regularly
scheduled intercity

or commuter rail passenger transportation, to implement an FRA-
certified PTC system on: (1) its main lines over which poison- or
toxic-by-inhalation hazardous materials are transported, if the line
carries five million or more gross tons of any annual traffic; (2) its
main lines over which intercity or commuter rail passenger
transportation is regularly provided; and (3) any other tracks the
Secretary of Transportation (Secretary) prescribes by regulation or
order.\1\ By law, PTC systems must be designed to prevent certain
accidents or incidents, including train-to-train collisions, over-speed
derailments, incursions into established work zones, and movements of
trains through switches left in the wrong position.\2\
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    \1\ Rail Safety Improvement Act of 2008, Public Law 110-432,
104(a), 122 Stat. 4848 (Oct. 16, 2008), as amended by the Positive
Train Control Enforcement and Implementation Act of 2015, Public Law
114-73, 129 Stat. 568, 576-82 (Oct. 29, 2015), and the Fixing
America's Surface Transportation Act, Public Law 114-94, section
11315(d), 129 Stat. 1312, 1675 (Dec. 4, 2015), codified as amended
at 49 U.S.C. 20157. See also Title 49 Code of Federal Regulations
(CFR) part 236, subpart I.
    \2\ 49 U.S.C. 20157(g)(1), (i)(5); 49 CFR 236.1005 (setting
forth the technical specifications).
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    Currently, 35 host railroads--including 7 Class I railroads, 23
intercity passenger railroads or commuter railroads, and 5 Class II or
III, short line, or terminal railroads--are directly subject to the
statutory mandate.\3\ The statutory mandate generally required that by
December 31, 2020, FRA-certified and interoperable PTC systems must
govern operations on all PTC-mandated main lines, currently
encompassing nearly 58,000 route miles nationwide.\4\ 49 U.S.C.
20157(a); 49 CFR 236.1005(b)(6)-(7).
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    \3\ The infographics on FRA's PTC website (https://railroads.dot.gov/train-control/ptc/positive-train-control-ptc)
identify 41 railroads subject to the statutory mandate as of
December 31, 2020, but six of those 41 railroads are tenant-only
commuter railroads. As this final rule primarily focuses on
requirements specific to host railroads, this final rule references
the current number of PTC-mandated host railroads (35) and any host
railroads that may either become subject to the statutory mandate or
voluntarily implement PTC systems in the future. Section V
(Regulatory Impact and Notices) estimates this final rule and FRA's
PTC regulations in general will apply, on average, to 1.5 additional
host railroads per year.
    \4\ Except a railroad's controlling locomotives or cab cars that
are subject to either a temporary or permanent exception under 49
U.S.C. 20157(j)-(k) or 49 CFR 236.1006(b), Equipping locomotives
operating in PTC territory.
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    On December 29, 2020, FRA announced that railroads had fully
implemented PTC technology on all PTC-mandated main lines.\5\ As of
that date, railroads reported that interoperability \6\ had been
achieved between the applicable host railroads and tenant railroads
that operate on PTC-mandated main lines, which included 209
interoperable host-tenant railroad relationships as of December
2020.\7\ Furthermore, as required under 49 U.S.C. 20157(h), FRA
approved each host railroad's PTCSP and certified that each PTC system
\8\ complied with the technical requirements for PTC systems under
FRA's regulations.\9\
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    \5\ Federal Railroad Administration, FRA Announces Landmark
Achievement with Full Implementation of Positive Train Control (Dec.
29, 2020), available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-12/fra1920.pdf.
    \6\ ``Interoperability'' is the general requirement that the
controlling locomotives and cab cars of any host railroad and tenant
railroad operating on the same main line must communicate with and
respond to the PTC system, including uninterrupted movements over
property boundaries, except as otherwise permitted by law. 49 U.S.C.
20157(a)(2)(A)(i)(I), (a)(2)(D), (i)(3), (j)-(k); 49 CFR 236.1003,
236.1006, 236.1011(a)(3).
    \7\ For purposes of FRA's PTC regulations, a host railroad is
``a railroad that has effective operating control over a segment of
track,'' and a tenant railroad is ``a railroad, other than a host
railroad, operating on track upon which a PTC system is required.''
49 CFR 236.1003(b).
    \8\ Currently, the following PTC systems are in operation in the
United States: (1) The Interoperable Electronic Train Management
System (I-ETMS), which Class I railroads and many commuter railroads
have fully implemented; (2) the Advanced Civil Speed Enforcement
System II (ACSES II) or the Advanced Speed Enforcement System II
(ASES II), the PTC system most railroads operating on the Northeast
Corridor (NEC) have fully implemented; (3) Enhanced Automatic Train
Control (E-ATC), which five host railroads have fully implemented;
(4) the Incremental Train Control System, which the National
Railroad Passenger Corporation (Amtrak) has fully implemented in
parts of Michigan; and (5) the Communication Based Train Control
(CBTC) system, which one commuter railroad has fully implemented.
    \9\ 49 CFR 236.1009, 236.1015.
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    Through FRA's nine PTC Symposia and Collaboration Sessions, from
2018 to 2020, and other regular coordination with railroads
implementing PTC systems, PTC system vendors and suppliers, and other
stakeholders, FRA proactively identified aspects of FRA's existing PTC
regulations that could impede either PTC-related innovation or FRA's
oversight, after the statutory deadline of December 31, 2020.
Accordingly, on December 18, 2020, FRA issued a Notice of Proposed
Rulemaking (NPRM) to amend its PTC regulations to modify two regulatory
provisions, 49 CFR 236.1021 and 236.1029(h), which, if not revised,
would impede the industry's ability to advance PTC technology
efficiently and FRA's ability to oversee the performance and
reliability of PTC systems effectively.\10\ FRA received seven sets of
written comments in response to that NPRM, which were generally
supportive of FRA's proposals. FRA responds to these seven sets of
comments in Sections II (Background and Public Participation) and IV
(Section-by-Section Analysis) of this final rule.
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    \10\ 85 FR 82400 (Dec. 18, 2020).
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    Based on the comments received, FRA is revising its PTC regulations
in two ways. First, FRA is issuing this final rule to streamline the
process under 49 CFR 236.1021 for RFAs to PTCSPs for FRA-certified
systems. This revised RFA process requires host railroads to provide
certain documentation, analysis, and safety assurances in a concise
RFA. This final rule also establishes a 45-day deadline for FRA to
review and approve or deny railroads' RFAs to their FRA-approved PTCSPs
or FRA-certified PTC systems. In addition, this final rule permits host
railroads utilizing the same type of PTC system to submit joint RFAs to
their PTCSPs and PTC Development Plans (PTCDPs).
    Second, FRA is expanding an existing reporting requirement--49 CFR
236.1029(h), Annual report of system failures--by increasing the
frequency of the reporting requirement from annual to biannual;
broadening the reporting requirement to encompass positive performance-
related information, not just failure-related information; and
requiring host railroads to utilize a new, standardized Biannual Report
of PTC System Performance (Form FRA F 6180.152) \11\ to enable more
effective FRA oversight. In addition, FRA is amending Sec.  236.1029(h)
by updating the provision to use certain statutory terminology for
consistency; clarifying the ambiguous filing obligation by specifying
that only host railroads directly submit these reports to FRA; and
explicitly requiring tenant railroads to provide the necessary data to
their applicable host railroads.
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    \11\ A copy of the form is available in the rulemaking docket.
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    FRA analyzed the economic impact of this final rule over a ten-year
period and estimated its quantitative costs and benefits, which are
shown in the table below. The business benefits associated with FRA's
revisions to Sec.  236.1021--i.e., to simplify the process for all RFAs
to PTCSPs and authorize host railroads to file joint RFAs to PTCSPs and
PTCDPs--will outweigh the costs associated with FRA's expansion of the
reporting requirement under paragraph (h) of Sec.  236.1029. This final
rule will also result in savings for the federal government.
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    \12\ Net Benefits = (Industry Business Benefits + Government
Savings)-Industry Costs.

                                            Net Benefits in Millions
                                                 [2019 Dollars]
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                                               Present value    Present value
                                                     7%               3%         Annualized 7%    Annualized 3%
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Industry Costs..............................          ($1.52)          ($1.75)          ($0.22)          ($0.21)
Industry Business Benefits..................             6.12             7.20             0.87             0.84
Government Savings..........................            17.98            21.19             2.56             2.48
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    Net Benefits \12\.......................            22.58            26.64             3.21             3.12
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* Note: Table may not sum due to rounding.

    In addition to the quantified benefits in the table above, FRA
expects this final rule will also result in safety benefits for the
railroad industry. For example, this final rule will enable railroads
to deploy PTC-related safety improvements and technological
advancements more efficiently and frequently, under an expedited RFA
process, and the expanded reporting requirement will help railroads and
FRA identify systemic failures more quickly and precisely, enabling
swifter intervention and resolution.

II. Background and Public Participation

A. Legal Authority To Prescribe PTC Regulations

    Section 104(a) of the Rail Safety Improvement Act of 2008 required
the Secretary of Transportation to prescribe PTC regulations necessary
to implement the statutory mandate, including regulations specifying
the essential technical functionalities of PTC systems and the means by
which FRA certifies PTC systems.\13\ The Secretary delegated to the
Federal Railroad Administrator the authority to carry out the functions
and exercise the authority vested in the Secretary by the Rail Safety
Improvement Act of 2008. 49 CFR 1.89(b).
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    \13\ Public Law 110-432, 122 Stat. 4848 (Oct. 16, 2008),
codified as amended at 49 U.S.C. 20157(g).
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    In accordance with its authority under 49 U.S.C. 20157(g) and 49
CFR 1.89(b), FRA issued its first final PTC rule on January 15, 2010,
which is set forth, as amended, under 49 CFR part 236, subpart I,
Positive Train Control Systems.\14\ FRA's PTC regulations under 49 CFR
part 236, subpart I, prescribe ``minimum, performance-based safety
standards for PTC systems . . . including requirements to ensure that
the development, functionality, architecture, installation,
implementation, inspection, testing, operation, maintenance, repair,
and modification of those PTC systems will achieve and maintain an
acceptable level of safety.'' 49 CFR 236.1001(a). FRA subsequently
amended its PTC regulations via final rules issued in 2010, 2012, 2014,
and 2016.\15\
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    \14\ 75 FR 2598 (Jan. 15, 2010).
    \15\ 75 FR 59108 (Sept. 27, 2010); 77 FR 28285 (May 14, 2012);
79 FR 49693 (Aug. 22, 2014); 81 FR 10126 (Feb. 29, 2016).
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    In this final rule, FRA revises three sections, 49 CFR 236.1003,
236.1021, and 236.1029, of FRA's existing PTC regulations pursuant to
its specific authority under 49 CFR 1.89 and 49 U.S.C. 20157(g), and
its general authority under 49 U.S.C. 20103 to prescribe regulations
and issue orders for every area of railroad safety.

B. Public Participation Prior to the Issuance of the NPRM

    FRA regularly engages with host railroads, tenant railroads, and
PTC system vendors and suppliers, as part of FRA's oversight of
railroads' implementation of PTC systems on the mandated main lines
under 49 U.S.C. 20157 and the other lines where railroads are
voluntarily implementing PTC technology. This included multiple PTC
Collaboration Sessions in 2019 and 2020.\16\ For a detailed discussion
regarding these sessions and other public participation prior to FRA's
issuance of the NPRM, please see Section II-B of the NPRM.\17\ The
provisions in this final rule are based on FRA's own review and
analysis, industry's feedback in 2019 and 2020 before publication of
the NPRM, and the comments received on the NPRM.
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    \16\ All presentations from FRA's PTC Collaboration Sessions are
available in FRA's eLibrary, including direct links on FRA's PTC
website at https://railroads.dot.gov/train-control/ptc/positive-train-control-ptc.
    \17\ 85 FR 82400, 82403-04 (Dec. 18, 2020).
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C. Introduction to Comments on the NPRM

    FRA received seven sets of comments from several associations,
railroads, and individuals in response to the NPRM FRA published on
December 18, 2020.\18\ FRA lists here the comments it received in
reverse chronological order. On February 16, 2021, the Association of
American Railroads (AAR) and the American Short Line and Regional
Railroad Association (ASLRRA) jointly filed comments on behalf of
themselves and their member railroads. On February 16, 2021, the
American Public Transportation Association (APTA) submitted comments on
behalf of itself, its member organizations, and the commuter rail
industry. Furthermore, on February 16, 2021, Amtrak and New Jersey
Transit (NJT) submitted their own respective comments, noting that they
also support AAR and ASLRRA's jointly filed comments. On December 30,
2020, David Schanoes submitted two separate comments on the NPRM. On
December 21, 2020, Patrick Coyle submitted comments. FRA thanks each
commenter for the time and effort put into the comments.
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    \18\ 85 FR 82400 (Dec. 18, 2020).
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    As most comments FRA received are directed at a specific regulatory
change FRA proposed in the NPRM, FRA discusses them in the appropriate
portions of Section IV (Section-by-Section Analysis) of this final
rule.
    In this section, FRA discusses only comments generally applicable
to this rulemaking and comments outside the scope of the rulemaking. In
general, the comments expressed support for both of FRA's proposals in
the NPRM. Several commenters also commended FRA for proposing changes
to its oversight and regulation of PTC technology now that it has been
fully implemented on all main lines currently subject to the mandate.
    In its comments, APTA asserts that, as a general matter, FRA must
justify each proposal of its NPRM separately, taking issue with FRA's
acknowledgement in the executive summary of the NPRM that the costs
associated with expanding the reporting requirement under Sec.
236.1029(h) are outweighed by the savings or business benefits incurred
by FRA's streamlining of Sec.  236.1021. More specifically, APTA states
that these issues should not be considered together, and FRA must
justify each proposal separately on its own merits.
    FRA agrees that it should independently justify each change to its
PTC regulations, which FRA has done

in Sections III (Summary of the Main Provisions in the Final Rule), IV
(Section-by-Section Analysis), and V (Regulatory Impact and Notices) of
this final rule. Consistent with FRA's approach in the NPRM, this final
rule identifies and explains the need and basis for each change.
Intended only as an overview, Section I (Executive Summary) summarizes
the overall industry costs, business benefits, government savings, and
net benefits of the final rule.
    In addition, APTA's comments include a general request from the
commuter rail industry for FRA to review its cost-benefit analysis
associated with the changes to Sec.  236.1029(h) FRA proposed in the
NPRM. Accordingly, based on comments received, FRA thoroughly reviewed
and updated its estimate of the increased burden associated with
expanding the reporting requirement under Sec.  236.1029(h), which FRA
discusses in Section V (Regulatory Impact and Notices).
    Also, FRA received several comments that are outside the scope of
this rulemaking. Specifically, an individual commented that all federal
agencies must step up their activities related to cybersecurity, noting
that PTC technology is one area where FRA must proactively address
cybersecurity needs. That comment acknowledges that a comprehensive
attempt to addressing cybersecurity challenges would require a separate
rulemaking. Although the comment is outside the scope of this
rulemaking, FRA wants to note that its existing regulations establish
security requirements for PTC systems under 49 CFR 236.1033,
Communications and security requirements, including the requirement for
all wireless communications between the office, wayside, and onboard
components in a PTC system to provide cryptographic message integrity
and authentication.\19\ In addition, FRA notes that certain
cybersecurity issues resulting in PTC system failures, defective
conditions, or previously unidentified hazards are currently reportable
under 49 CFR 236.1023, Errors and malfunctions, and cybersecurity
issues resulting in initialization failures, cut outs, or malfunctions,
will be reportable in the new Biannual Report of PTC System Performance
(Form FRA F 6180.152) under 49 CFR 236.1029(h).
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    \19\ See also 49 CFR 236.1015(d)(20).
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    An individual also commented that FRA should expand the scope of 49
CFR 236.1023(b), Errors and malfunctions, to include third-party
reports of software and firmware vulnerabilities. The comment
rightfully observes that such a change is also outside the scope of
this rulemaking, as the NPRM did not propose amending Sec.  236.1023
and, therefore, this final rule does not address the substance of the
comment.

III. Summary of the Main Provisions in the Final Rule

A. Establishing a New Process for Modifying FRA-Certified PTC Systems
and the Associated PTCSPs

    FRA's PTC regulations have always acknowledged that after
``implementation of a train control system, the subject railroad may
have legitimate reasons for making changes in the system design,''
among other changes, including to a PTC system's functionality.\20\
Indeed, FRA is aware that host railroads will need to deploy new PTC
software releases, among other changes, to ensure their PTC systems are
performing properly--for example, to fix certain bugs or defects or
eliminate newly discovered hazards. In addition to incremental changes
to PTC systems that are necessary for the continued safe and proper
functioning of the technology, FRA understands that several railroads
and PTC system vendors and suppliers have chosen to design and develop
their PTC systems to perform functions in addition to the minimum,
performance-based functions specified under the statutory mandate and
FRA's regulations.
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    \20\ 75 FR 2598, 2660 (Jan. 15, 2010).
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    Currently, however, FRA's PTC regulations prohibit a railroad from
making certain changes to its FRA-approved PTCSP or FRA-certified PTC
system unless the railroad files an RFA to its PTCSP and obtains
approval from FRA's Associate Administrator for Railroad Safety. 49 CFR
236.1021. Though FRA's existing regulations specify that FRA will, to
the extent practicable, review and issue a decision regarding a host
railroad's initially filed PTCSP within 180 days of the date it was
filed, FRA's regulations do not currently specify an estimated timeline
for reviewing and approving or denying railroads' subsequent RFAs to
their PTCSPs.
    Instead of the existing RFA approval process involving complex
content requirements and an indefinite decision timeline, this final
rule: (1) Requires railroads to comply with a streamlined RFA process,
including providing certain documentation, analysis, and safety
assurances; and (2) establishes a 45-day deadline for FRA's review and
issuance of a decision. The improved process will enable the industry
to implement technological enhancements more efficiently, and the clear
timeline will help ensure a more predictable and transparent FRA review
process going forward.
    In addition, this final rule permits host railroads utilizing the
same type of PTC system to submit joint RFAs to their PTCSPs and
PTCDPs. Appreciating that changes to safety-critical elements,
including software or system architecture, of a certain PTC system will
likely impact multiple, if not most, railroads operating that same type
of PTC system, FRA's final rule outlines a path for such host railroads
to submit joint RFAs to their PTCSPs, with specific instructions under
new paragraphs (l) and (m) of Sec.  236.1021. FRA recognizes that
modifying and simplifying the process for host railroads to submit RFAs
to PTCSPs for FRA-certified PTC systems is necessary to facilitate
required maintenance and upgrades to PTC technology and encourage
railroads to enhance their PTC systems to continue to improve rail
safety.

B. Expanding the Performance-Related Reporting Requirements

    FRA's regulations currently require a railroad to submit an annual
report by April 16th each year regarding the number of PTC system
failures, ``including but not limited to locomotive, wayside,
communications, and back office system failures,'' that occurred during
the previous calendar year. 49 CFR 236.1029(h). The first failure-
related annual reports pursuant to Sec.  236.1029(h) were due on April
16, 2019, from the four host railroads whose statutory deadline was
December 31, 2018, for the full implementation of a PTC system on their
required main lines. FRA has found that the annual reports railroads
submitted to date have been brief (e.g., as short as half of a page)
and included minimal information, but still technically satisfied the
existing content requirements under Sec.  236.1029(h).
    Because the minimal information currently required under Sec.
236.1029(h) does not permit FRA to monitor adequately the rate at which
PTC system failures occur, or to evaluate improvements over time, FRA
is revising Sec.  236.1029(h) to enable FRA to perform its oversight
functions effectively. Specifically, FRA is increasing the frequency of
this reporting requirement from annual to biannual, which will enable
FRA to monitor more closely trends in PTC system reliability. In
addition, to ensure the data railroads submit under Sec.  236.1029(h)
are uniform, comparable,

and objective, FRA is revising this reporting requirement by specifying
the exact types of statistics and information the reports must include.
    Furthermore, FRA is amending Sec.  236.1029(h) to make it
consistent with the temporary reporting requirement under 49 U.S.C.
20157(j)(4), as the existing statutory and regulatory provisions use
different terminology to describe PTC-related failures. As background,
the Positive Train Control Enforcement and Implementation Act of 2015
established a reporting requirement that applies only temporarily, from
October 29, 2015, to December 31, 2021.\21\ On June 5, 2020, the Office
of Management and Budget (OMB) approved the Statutory Notification of
PTC System Failures (Form FRA F 6180.177, OMB Control No. 2130-
0553),\22\ which FRA developed in 2019, and then revised in 2020 based
on feedback from AAR and APTA.\23\ Host railroads must submit that form
monthly to comply with 49 U.S.C. 20157(j)(4) until that temporary
reporting requirement expires on December 31, 2021.\24\
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    \21\ 49 U.S.C. 20157(j).
    \22\ Available at https://safetydata.fra.dot.gov/PTCSystemFailuresFRAForm177/.
    \23\ For additional detail, please see 84 FR 72121 (Dec. 30,
2019) and 85 FR 15022 (Mar. 16, 2020).
    \24\ See also 49 U.S.C. 20157(j)(4) and (e)(1) (authorizing DOT
to assess civil penalties for any violation of the statutory
mandate).
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    FRA's new Biannual Report of PTC System Performance (Form FRA F
6180.152) under revised Sec.  236.1029(h) will incorporate both: (1)
The minimal information currently required under Sec.  236.1029(h); and
(2) the corresponding types of data railroads must submit until
December 31, 2021, in their Statutory Notifications of PTC System
Failures (Form FRA F 6180.177). Similarly, this final rule revises
Sec.  236.1029(h) to utilize the failure-related terms under 49 U.S.C.
20157(j)--initialization failures, cut outs, and malfunctions--instead
of the broad, imprecise term currently used in Sec.  236.1029(h)
(``failures'').
    Furthermore, during meetings FRA held before publication of the
NPRM, railroads observed that, under existing Sec.  236.1029(h), it is
unclear whether a host railroad, a tenant railroad, or both must submit
the required reports to FRA, as the existing provision uses only the
word ``railroad.'' In this final rule, FRA resolves this ambiguity by
specifying that only host railroads must directly submit these reports
to FRA. In addition, new paragraph (4) under Sec.  236.1029(h) requires
each applicable tenant railroad that operates on a host railroad's PTC-
governed main lines to submit the necessary information to each
applicable host railroad on a continuous basis, which will enable host
railroads to submit their Biannual Reports of PTC System Performance to
FRA, on behalf of themselves and their tenant railroads.
    FRA considers its changes to Sec.  236.1029(h) necessary to enable
FRA to monitor the performance and reliability of railroads' PTC
systems effectively throughout the country.

IV. Section-by-Section Analysis

Section 236.1003 Definitions

    FRA is adding three definitions to paragraph (b) of this section to
help ensure that FRA and the railroad industry consistently interpret
the failure-related terms under 49 U.S.C. 20157(j)--initialization
failures, cut outs, and malfunctions--as FRA is now also using these
corresponding terms in revised Sec.  236.1029(h) and the associated
Biannual Report of PTC System Performance (Form FRA F 6180.152).
Specifically, as proposed in the NPRM, FRA's final rule generally
adopts the definitions of these three terms that FRA currently utilizes
in the Statutory Notification of PTC System Failures (Form FRA F
6180.177, OMB Control No. 2130-0553), which were, in part, revised and
refined based on industry's feedback during the development of that
corresponding form and the definitions therein.\25\
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    \25\ See 84 FR 72121, 72125 (Dec. 30, 2019); 85 FR 15022, 15025-
26 (Mar. 16, 2020).
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    In its comments on the NPRM, APTA seeks FRA's confirmation that a
specific type of failure should be categorized as either a cut out or a
malfunction (i.e., an en route failure), not an initialization failure.
Specifically, APTA describes the following scenario: in a maintenance
facility, before departing, a crew successfully initializes a PTC
system on both ends of a push-pull train (the locomotive and the cab
car), and the train successfully enters PTC-governed territory with the
PTC system functioning properly. Subsequently, when the crew switches
to operating the cab car (instead of the locomotive or vice versa), the
PTC system then fails to activate properly.
    APTA requests confirmation that FRA would not consider this type of
failure an initialization failure, but instead an en route failure,
either a cut out or a malfunction. FRA concurs with APTA's
interpretation. Under these specific circumstances, the PTC system was
successfully initialized on both the locomotive and the cab car of the
push-pull train, and the subsequent failure should be categorized as
either a cut out or a malfunction, depending on the underlying facts,
per the definitions under Sec.  236.1003(b).
    In addition, APTA requests confirmation that if the state of a PTC
system is either ``disengaged'' or ``failed,'' that state is
categorized as a malfunction, not as a cut out, under FRA's definitions
of those terms. FRA concurs with that interpretation. FRA's
understanding is that if a PTC system conveys it has ``disengaged'' or
``failed,'' it is likely due to a failure in the communications network
or elsewhere in the system, and it would be categorized as a
malfunction, not a cut out.
    FRA received one comment requesting a change to its proposed
definition of ``malfunction.'' \26\ Regarding FRA's proposed definition
of ``malfunction,'' an individual suggested that FRA should add the
following clause to the end of the definition: ``or any indication of
unauthorized system access or other indicators of compromise described
by system suppliers or vendors.'' FRA's proposed definition of
``malfunction'' in the NPRM was ``any instance when a PTC system,
subsystem, or component fails to perform the functions mandated under
49 U.S.C. 20157(i)(5), this subpart, or the applicable host railroad's
PTCSP.''
---------------------------------------------------------------------------

    \26\ FRA did not receive any comments requesting a change to its
proposed definition of ``initialization failure'' or ``cut out.''
---------------------------------------------------------------------------

    FRA declines to add the requested clause to the end of the
definition of ``malfunction'' for two reasons. First, host railroads
have become accustomed to collecting data using the exact definition of
``malfunction'' FRA proposed in the NPRM, as FRA developed that
definition with industry's feedback during its establishment of the
Statutory Notification of PTC System Failures (Form FRA F 6180.177).
Second, FRA's proposed definition of ``malfunction'' already captures
certain instances that the commenter describes. For example, if a
person or entity interferes with a PTC system, subsystem, or component
to the point that the technology fails to perform the functions
mandated under 49 U.S.C. 20157(i)(5), FRA's PTC regulations, or the
applicable host railroad's PTCSP, that would fall squarely within the
definition of ``malfunction.''
    This final rule adopts the three definitions FRA proposed of ``cut
out,'' ``initialization failure,'' and ``malfunction'' in the NPRM,
with one modification. In the clause that refers to a person cutting
out a PTC system in the definition of ``cut out,'' FRA is adding

the qualifying phrase ``with authorization'' to the definition in the
final rule, which will help avoid the impression that trains crews may
cut out a PTC system without first following the applicable procedures
in the governing FRA-approved PTCSP and/or the railroad's own operating
rules. Other than the addition of those two words for clarification,
this final rule adopts the three definitions FRA proposed in the NPRM.

Section 236.1021 Discontinuances, Material Modifications, and
Amendments

    In general, the purpose of existing paragraphs (a) through (d) is
to prohibit a railroad from making changes, as defined by this section,
to a PTC system, PTC Implementation Plan (PTCIP), PTCDP, or PTCSP,
unless the railroad submits an RFA, with the content requirements under
existing paragraphs (d)(1) through (7), and obtains approval from FRA's
Associate Administrator for Railroad Safety.
    In its comments, APTA states that Sec.  236.1021 will present an
undue burden to its members if FRA broadly interprets the types of
changes (often referred to as ``material modifications'') that require
a host railroad to file an RFA under Sec.  236.1021(h). Consistent with
FRA's statements in the NPRM, this rule does not revise the types of
changes that trigger the filing of an RFA under existing paragraphs
(h)(1) through (4) or the exceptions currently set forth under Sec.
236.1021(i)-(k). The types of changes that relate specifically to this
final rule because they impact a host railroad's PTCSP and/or the
underlying FRA-certified PTC system are the specific changes identified
under existing paragraphs (h)(3) and (4)--i.e., a proposed modification
of a safety-critical element of a PTC system or a proposed modification
of a PTC system that affects the safety-critical functionality of any
other PTC system with which it interoperates.
    FRA previously advised railroads about the scope of these terms,
including common examples, during FRA's PTC Collaboration Sessions and
in FRA's individual letters to railroads approving their PTCSPs and
certifying their PTC systems. FRA remains available to answer questions
about whether a specific type of change might trigger the requirement
to file an RFA under existing Sec.  236.1021(h). However, as this final
rule does not revise the list of qualifying changes under existing
Sec.  236.1021(h)(1)-(4) or the exceptions currently set forth under
Sec.  236.1021(i)-(k), FRA will handle such inquiries on a case-by-case
basis and not in this rule.
    In addition, an individual commented that FRA should add a fifth
type of change to existing paragraph (h), which FRA is not revising in
this rulemaking. Specifically, the individual comments that FRA should
add the following provision to the list of changes that trigger the
filing of an RFA: ``(5) Any change in PTC component software or
firmware.'' Even if FRA were amending the list under Sec.
236.1021(h)(1)-(4), such an addition would be unnecessary as relevant
changes to software or firmware are already covered within existing
paragraphs (h)(3) and (4).\27\ For example, this final rule recognizes
that certain software changes trigger the requirement to file an RFA
under Sec.  236.1021, and FRA refers to relevant software changes in
Sections II (Background and Public Participation), III (Summary of the
Main Provisions in the Final Rule), and IV (Section-by-Section
Analysis), as well as new paragraph (m)(2)(ii) under Sec.  236.1021,
which requires an RFA to include any associated software release notes.
---------------------------------------------------------------------------

    \27\ That is, proposed modifications to safety-critical elements
of PTC systems or proposed modifications to a PTC system that affect
the safety-critical functionality of any other PTC system with which
it interoperates.
---------------------------------------------------------------------------

    In general, FRA's revisions to Sec.  236.1021 in this final rule
are intended primarily to streamline the process by which host
railroads must submit RFAs to their FRA-approved PTCSPs and FRA-
certified systems, based on FRA's recognition that the railroad
industry intends to update and enhance FRA-certified PTC systems to
advance rail safety.\28\ Accordingly, FRA's revisions to the process
under existing paragraphs (a), (c), and (d) are limited to removing any
references to PTCSPs or PTC systems from those paragraphs, as this
final rule establishes a new, streamlined process for RFAs associated
with FRA-approved PTCSPs and FRA-certified PTC systems under new
paragraphs (l) and (m). In addition to removing references to PTCSPs
from existing paragraphs (a), (c), and (d), this final rule removes
paragraph (d)(7) in its entirety, and incorporates the general
principle of paragraph (d)(7) into a new proposed paragraph, (m)(2)(i),
as discussed below.
---------------------------------------------------------------------------

    \28\ For additional detail and background, please see the NPRM
and Sections I (Executive Summary) and III-A (Establishing a New
Process for Modifying FRA-certified PTC Systems and the Associated
PTCSPs) of this final rule.
---------------------------------------------------------------------------

    In this final rule, under new paragraph (l), FRA permits host
railroads utilizing the same type of PTC system to submit joint RFAs to
their PTCSPs and PTCDPs, as those are system-based documents, albeit
with some railroad-specific variances. FRA expects that host railroads
will utilize this joint RFA option to the extent practicable, and it
will efficiently leverage the industry's resources, help ensure
coordination among railroads operating the same types of PTC systems,
and reduce the number of similar or identical RFA filings host
railroads submit to FRA for review and approval.\29\ Because changes to
safety-critical elements, including software or system architecture, of
a certain PTC system will likely impact multiple, if not most,
railroads implementing that same type of PTC system, this final rule
outlines a path for such host railroads to submit joint RFAs to their
PTCSPs, with specific instructions under new paragraphs (l) and (m).
FRA recognizes that many host railroads participate in system-specific
committees or working groups to ensure they maintain PTC system
interoperability, among other objectives. FRA considers it acceptable
for an association, committee, or working group to submit a joint RFA
under paragraph (l), but such a joint RFA must be explicitly on behalf
of two or more host railroads, and each host railroad must sign the
filing.
---------------------------------------------------------------------------

    \29\ The current set of PTC-mandated host railroads have fully
implemented five types of PTC systems, though FRA acknowledges that,
in several cases, railroads implemented PTC systems of the same type
in different manners (e.g., variances in design, functionality, and
operation). This has required, and will continue to require,
railroads to conduct additional testing and gap analyses to achieve
and sustain interoperability, including configuration management.
---------------------------------------------------------------------------

    New paragraph (l) also specifies that only host railroads with the
same PTC System Certification classification under 49 CFR 236.1015(e)
may file a joint RFA to their PTCSPs. In its comments, APTA expresses
general support for this provision, noting that many APTA members will
benefit from this flexibility, especially railroads whose I-ETMS
systems FRA has certified as mixed PTC systems. APTA further explains
both that its members are ``small organizations with limited staff,
funding, and resources,'' and that railroads operating ACSES II/ASES
II, E-ATC, or non-vital, overlay I-ETMS systems may not benefit from
this provision to the same extent.
    In the NPRM, FRA acknowledged that while new paragraph (l) provides
the same flexibility for all host railroads operating all types of PTC
systems, some groups of railroads might be better positioned to begin
filing joint RFAs immediately. Though this final rule generally
authorizes host railroads, utilizing the same type of PTC system, to
file RFAs to their PTCSPs jointly, FRA expects this aspect of the final
rule,

in the short term, primarily to impact host railroads implementing I-
ETMS and E-ATC because each respective I-ETMS and E-ATC system is
similar to others of the same type, with a baseline functionality.\30\
Conversely, there is not a uniform standard or specification currently
underlying the ACSES II or ASES II PTC systems that host railroads have
implemented on the NEC. In addition, there is an array of ACSES II
suppliers, including for the onboard, wayside, and communications
subsystems. In the future, however, as the ACSES II railroads finish
establishing the Interoperable Change Management Plan they are
currently developing and finalizing, it is possible that at least some
of the host railroads utilizing ACSES II or ASES II will elect to
submit joint RFAs to their respective PTCSPs for certain system-wide
changes, consistent with the option under new paragraphs (l) and (m) of
Sec.  236.1021.
---------------------------------------------------------------------------

    \30\ Also, with respect to I-ETMS and similar systems, FRA
acknowledges that in January 2021, FRA's Railroad Safety Board
approved AAR and ASLRRA's joint petition, dated August 14, 2020, for
a temporary waiver of compliance from 49 CFR 236.1021. Specifically,
FRA's approval of the waiver petition authorizes certain railroads
to comply with an alternative RFA process, including the filing of
joint RFAs, for PTCSP purposes. However, as requested, the waiver
applies only to host railroads that operate an Interoperable Train
Control PTC system that FRA has certified, or certifies, as a mixed
PTC system under 49 CFR 236.1015(e)(4). FRA's approval letter states
the waiver is in effect for five years or until FRA issues this
final rule, whichever occurs first. For a copy of the waiver
petition, or FRA's approval letter, please see public Docket No.
FRA-2020-0068.
---------------------------------------------------------------------------

    In short, FRA welcomes joint RFAs from any group of host railroads
utilizing the same type of PTC system with the same certification
classification, as new paragraph (l) states. FRA remains available to
provide technical assistance to any railroads that have questions about
this provision and how to utilize the flexibility therein.
    Here is an example to help explain the practical effect of new
paragraph (l). When an RFA is necessary under Sec.  236.1021 to account
for certain proposed changes to railroads' I-ETMS PTCSPs, or I-ETMS
itself, FRA expects a joint RFA from the set of host railroads whose I-
ETMS is certified as a non-vital, overlay PTC system under Sec.
236.1015(e)(1), and a joint RFA from the set of host railroads whose I-
ETMS is certified as a mixed PTC system under Sec.  236.1015(e)(4). Two
distinct RFAs are necessary under these circumstances, as the impact of
the proposed change(s) must be analyzed in the context of the
underlying safety analysis in the FRA-approved PTCSPs--a safety
analysis that is structured differently based on whether FRA has
certified the PTC system as a non-vital, overlay system; a vital,
overlay system; a standalone system; or a mixed system.
    Furthermore, with respect to joint RFAs, new paragraph (l)
specifies that, though most types of information required under new
paragraph (m)(2) may be submitted jointly in the RFA, a joint RFA must
include the written confirmation and statement specified under new
paragraphs (m)(2)(iii) and (iv), as described below, from each host
railroad that is a signatory to the joint RFA.
    In this final rule, FRA outlines, in new paragraph (m), the
mandatory, three-step process a host railroad must follow to make
changes to its FRA-certified PTC system and the associated FRA-approved
PTCSP. FRA intends the process under paragraph (m) to apply to all
changes necessitating an RFA under existing paragraphs (h)(3) and (4)
of this section--i.e., proposed changes to safety-critical elements of
PTC systems and proposed changes to a PTC system that affect the
safety-critical functionality of any other PTC system with which it
interoperates. For brevity, FRA will refer to these changes as changes
to safety-critical elements of PTC systems, as that is sufficiently
broad for purposes of paragraph (m).
    New paragraph (m)(1) requires a host railroad to revise its PTCSP
to account for each proposed change to its PTC system, and summarize
such changes in a chronological table of revisions at the beginning of
its PTCSP. FRA retains its authority to request a copy of a host
railroad's governing PTCSP in accordance with 49 CFR 236.1009(h), FRA
access, and 49 CFR 236.1037, Records retention. FRA did not receive any
comments on new paragraph (m)(1), as proposed, and thus, FRA is
adopting that paragraph without change.
    The introductory text in new paragraph (m)(2) specifically requires
a host railroad to file an RFA pursuant to paragraph (m)
electronically, which could include electronic filing on FRA's Secure
Information Repository (https://sir.fra.dot.gov), where railroads
currently file other PTC-related documents, or any other location FRA
designates. If a host railroad wishes to seek confidential treatment of
any part of its RFA, the railroad must comply with the existing process
and requirements under 49 CFR 209.11, Request for confidential
treatment. That process includes marking the document properly with the
necessary labels and redactions, and providing a statement justifying
nondisclosure and referring to the specific legal authority claimed.
FRA will post a host railroad's RFA (the public, redacted version, if
applicable) and FRA's final decision letter in the respective
railroad's PTC docket on http://www.regulations.gov.\31\ FRA did not
receive any comments on the introductory text in new paragraph (m)(2),
as proposed, and thus, FRA is adopting that introductory text without
change.
---------------------------------------------------------------------------

    \31\ Railroads' applicable PTC docket numbers are available on
FRA's website at https://railroads.dot.gov/train-control/ptc/ptc-annual-and-quarterly-reports.
---------------------------------------------------------------------------

    In new paragraphs (m)(2)(i) through (v), FRA outlines the specific
content requirements for an RFA to an FRA-certified PTC system and the
associated PTCSP. The requirements focus on the core information and
analysis FRA needs to review to ensure the PTC system, including any
proposed changes, will provide an equivalent or greater level of safety
than the existing PTC system. Importantly, new paragraph (m)(2)(i)
requires the RFA to include a summary of the proposed changes to any
safety-critical elements of a PTC system, including: (1) A summary of
how the changes to the PTC system would affect its safety-critical
functionality; (2) how any new hazards have been addressed and
mitigated; (3) whether each change is a planned change that was
previously included in all required analysis under Sec.  236.1015, or
an unplanned change; and (4) the reason for the proposed changes,
including whether the changes are necessary to address or resolve an
emergency or urgent issue.
    Regarding paragraph (m)(2)(i), APTA recommends that FRA remove the
last part of the summary section of the RFA--i.e., ``including whether
the changes are necessary to address or resolve an emergency or urgent
issue.'' FRA does not agree that this clause should be removed, as that
type of statement will provide valuable information to FRA. For
example, such information will help FRA understand why a specific RFA
should be prioritized and expedited under the circumstances.
    Furthermore, for context, FRA's existing paragraphs (d)(7)(i)
through (v) of Sec.  236.1021 explain the distinction between an
unplanned change and a planned change and impose certain additional
requirements, including conducting suitable regression testing to FRA's
satisfaction and filing a new PTCDP and PTCSP, under certain
circumstances. As noted above, this final rule removes paragraph (d)(7)
in its entirety and instead requires a host railroad to identify in its
RFA under paragraph (m)(2)(i) only whether the

change is a planned change or an unplanned change. That basic
information will be valuable to include in the abbreviated RFA under
paragraph (m) because several railroads have already accounted for
long-term, planned changes to their PTC systems and proactively
integrated those assumptions into the corresponding analyses in their
PTCSPs.
    As FRA noted in the NPRM, planned changes ``are those that the
system developer and the railroad have included in the safety analysis
associated with the PTC system, but have not yet implemented.'' In its
comments, APTA asks FRA to confirm that unplanned changes are,
therefore, any changes not already documented in a railroad's PTCSP.
FRA confirms that APTA's interpretation is correct. As FRA received
only the two above comments on new paragraph (m)(2)(i), this final rule
adopts that paragraph as proposed.
    New paragraph (m)(2)(ii) requires the RFA to include a copy of any
associated software release notes, which is critical for FRA to review
and evaluate before one or more railroads deploy the upgraded software.
A copy of the release notes is integral in conveying the actual changes
to the PTC system, including any corrections, enhancements, or new
features or functionality. FRA did not receive any comments on new
paragraph (m)(2)(ii), as proposed, and thus, FRA is adopting that
paragraph without change.
    New paragraph (m)(2)(iii) requires the RFA to contain a
confirmation that the host railroad has notified any applicable tenant
railroads of the proposed changes, any associated effect on the tenant
railroads' operations, and any actions the tenant railroads must take
in accordance with the configuration control measures set forth in the
host railroad's PTCSP. FRA did not receive any comments on new
paragraph (m)(2)(iii), as proposed, and thus, FRA is adopting that
paragraph without change.
    In the NPRM, FRA proposed that paragraph (m)(2)(iv) would require
the RFA to include a statement from the host railroad's Chief Engineer
and Chief Operating Officer (COO), or executive officers of similar
qualifications, verifying that the PTC system, once modified, would
meet all technical requirements under 49 CFR part 236, subpart I,
provide an equivalent or greater level of safety than the existing PTC
system, and not adversely impact interoperability with any tenant
railroads.
    In their joint comments regarding proposed paragraph (m)(2)(iv),
AAR and ASLRRA recommend the following: ``Instead of requiring hollow
paperwork, the railroads instead propose that RFA submissions identify
a designated and knowledgeable railroad contact who will be responsible
for responding to FRA questions or requests for additional information,
if any, and who will be able to do so quickly, completely, and
authoritatively.'' AAR and ASLRRA's recommendation is based on several
assertions, including that a verification statement from a railroad's
Chief Engineer and COO was not required for railroad's initial PTCIP,
PTCDP, or PTCSP, and it is unnecessary for RFAs, which are relatively
less complex. In addition, AAR and ASLRRA assert that a railroad's
Chief Engineer and COO are likely not PTC subject matter experts, and
the highly technical changes described in an RFA would not be within
their purview. Accordingly, a Chief Engineer and COO would be relying
on the representations of their staff about the safety impact of the
amendments proposed in the RFA, so the proposed statement would not
serve a useful purpose.
    In response to AAR and ASLRRA's recommendation, FRA is modifying
new paragraph (m)(2)(iv) in the final rule. As FRA proposed in the
NPRM, this final rule will still require an RFA to include a statement
from the respective host railroad that the modified PTC system (if the
proposed changes were implemented) would meet all technical
requirements under 49 CFR part 236, subpart I, provide an equivalent or
greater level of safety than the existing PTC system, and not adversely
impact interoperability with any tenant railroads. This is consistent
with existing regulatory provisions that require PTC systems to achieve
and maintain a level of safety, for each system modification, that is
equal to or greater than the level of safety provided by the previous
PTC system.\32\ However, based on comments received, FRA is eliminating
all references to a host railroad's Chief Engineer and COO (or
executive officers of similar qualifications) and instead specifying
that this statement must be from a qualified representative of the host
railroad. FRA expects this representative to be a management-level
person with technical oversight of the railroad's PTC division. To AAR
and ASLRRA's point, that representative will be the first person whom
FRA contacts with any questions. Also, to be clear, the host railroad's
representative must be an employee of the railroad, not a contractor.
---------------------------------------------------------------------------

    \32\ See, e.g., 49 CFR 236.1001(a), 236.1015(d)(11),
236.1015(e)(1)(iii), and 236.1015(g).
---------------------------------------------------------------------------

    New paragraph (m)(2)(v) requires a host railroad to submit any
other information that FRA requests on a case-by-case basis, during
FRA's review of the RFA. This approach is generally consistent with the
existing provision under 49 CFR 236.1015(f), which provides that in any
case where a PTCSP, or an RFA in this scenario, ``lacks adequate data
regarding [the] safety impacts of the proposed changes, the Associate
Administrator may request the necessary data from the applicant.''
    AAR and ASLRRA comment that this provision is unnecessary because
existing Sec.  236.1021(d) already specifies that FRA can request
information necessary to evaluate an RFA in appropriate circumstances.
However, AAR and ASLRRA's comment fails to recognize that going
forward, under this final rule, existing Sec.  236.1021(d) will apply
only to RFAs to PTCIPs and PTCDPs, not RFAs to PTCSPs or PTC systems.
FRA explains above that this final rule removes any references to RFAs
to PTCSPs or PTC systems from existing paragraph (d), so existing
paragraph (d) is no longer applicable to a host railroad's RFA to its
PTCSP.\33\ Under this final rule, new paragraphs (l) and (m) will
govern in this context, as they establish the process, including
content requirements, for RFAs associated with FRA-approved PTCSPs and
FRA-certified PTC systems.
---------------------------------------------------------------------------

    \33\ AAR and ASLRRA's comments also assert that this type of
catch-all provision renders FRA's burden estimates speculative.
However, FRA's burden estimates are based on the full set of
information that paragraph (m) requires RFAs to PTCSPs to contain,
including any responses to FRA's possible requests for additional
information on a case-by-case basis, as appropriate or necessary. As
AAR and ASLRRA's comments acknowledge, this type of provision exists
in current 49 CFR 236.1021(d), as well as other provisions not
referenced, including 236.1015(f). FRA's requests for additional
information in those contexts have been infrequent.
---------------------------------------------------------------------------

    Also, AAR and ASLRRA comment that this provision (paragraph
(m)(2)(v)) is overbroad and creates the possibility of an open-ended
process unlikely to be completed within FRA's 45-day decision timeline.
As FRA noted in the NPRM, if FRA were to require a host railroad, or a
set of host railroads, to provide additional information in support of
the RFA, FRA's request will identify a deadline by which to submit the
information, and FRA intends to send any such request via email to
ensure an efficient process. If the reason for FRA's request is to have
additional documentation on file for future reference, but that
documentation will

not be essential to FRA's decision regarding the pending RFA, the
deadline FRA specifies might be after the 45-day decision timeline. In
this case, the applicable host railroads will receive FRA's decision
(by the 45th day) and submit the additional information FRA requested
by a specific deadline thereafter.
    Alternatively, if under the circumstances, FRA expects the
additional information it requests will be integral to FRA's decision
regarding the pending RFA, FRA will specify that the additional
information must be submitted by, for example, the 20th day after the
initial RFA filing. In this case, FRA will be required nonetheless to
issue its decision within 45 days of the initial RFA filing, consistent
with new paragraph (m)(3) below. FRA has considered AAR and ASLRRA's
concerns about new paragraph (m)(2)(v), and FRA wants to clarify that
this provision will not affect the 45-day deadline by which FRA must
issue its decision, as new paragraph (m)(3) provides.
    The clock begins when a host railroad, or a group of host
railroads, properly files an RFA with all required information pursuant
to new paragraphs (m)(2)(i) through (iv) (i.e., all content
requirements for an RFA, expect (m)(2)(v) which refers to any case-by-
case requests for additional information). To be clear, if an RFA fails
to include any of the contents explicitly required for all RFAs to
PTCSPs under new paragraphs (m)(2)(i) through (iv), the 45-day clock
will not begin on that initial filing date. Instead, the 45-day clock
will begin on the date the railroad or railroads properly submit any
remaining information required under new paragraphs (m)(2)(i) through
(iv). FRA expects this will incentivize a railroad to submit a complete
RFA, with all contents required under paragraphs (m)(2)(i) through
(iv), in its initial filing.
    New paragraph (m)(3) outlines a definite, predictable timeline
associated with FRA's review of an RFA to a host railroad's PTCSP or
FRA-certified PTC system under paragraph (m). Specifically, paragraph
(m)(3) prohibits a host railroad from making any changes, as defined
under 49 CFR 236.1021(h)(3) or (4),\34\ to its PTC system until the
Director of FRA's Office of Railroad Systems and Technology approves
the RFA. In this final rule, new paragraph (m)(3)(i) specifies that FRA
will review an RFA and issue a decision--i.e., an approval, conditional
approval, or denial of the RFA--within 45 days of the date on which the
complete RFA was filed under paragraph (m)(2). FRA's decision will be
in the form of a letter from the Director of FRA's Office of Railroad
Systems and Technology. As noted above, FRA will post each final
decision letter in the respective railroad's PTC docket on http://www.regulations.gov. FRA, however, may send interim correspondence--
including any notices requiring a railroad to provide additional
information under new paragraph (m)(2)(v)--via email, which will help
ensure that process is efficient.
---------------------------------------------------------------------------

    \34\ That is, proposed changes to safety-critical elements of
PTC systems or proposed changes to a PTC system that affect the
safety-critical functionality of any other PTC system with which it
interoperates.
---------------------------------------------------------------------------

    FRA received multiple comments on new paragraph (m)(3)(i). In its
comments, APTA recommends that FRA reduce the review-and-decision
timeline from the proposed 45 days to, at most, 14 days. APTA's
recommendation is based on its assertion that the industry has
implemented at least four to five PTC onboard software releases, for I-
ETMS alone, over the last two years, and a 45-day review-and-decision
period will constrain the industry's ability to continue at its current
pace. AAR and ASLRRA's comments express concern that FRA may not be
able to issue a decision within 45 days, and they recommend adding a
provision wherein FRA may issue a summary approval of an RFA, with a
more detailed rationale in a subsequent written decision. Like APTA's
comments, AAR and ASLRRA's comments underscore the importance of host
railroads receiving a timely decision so that safety improvements are
not unnecessarily delayed.
    FRA appreciates these comments, but FRA declines to incorporate
these specific recommendations into the final rule for the following
reasons. Regarding AAR and ASLRRA's proposal, FRA expects that a
provision allowing the agency to issue multiple decision letters, a
brief decision letter and a complete decision letter (typically only
two pages), could complicate the process and make it less efficient.
    As the industry is aware, FRA's regulations do not currently
specify a timeline for FRA to review and approve or deny railroads'
RFAs to their PTCSPs. In practice, as of May 2021, it has taken FRA 178
days, on average, to review and approve recent RFAs to PTCSPs for FRA-
certified PTC systems. One of FRA's main objectives in modifying Sec.
236.1021 in this final rule is to establish a streamlined RFA process
with a finite decision timeline to enable railroads to plan and
schedule any material modifications, including upgrades, to their PTC
systems. An FRA review-and-decision period of 45 days is significantly
faster than FRA's current process, and this expedited timeline is based
on FRA's interest in facilitating the industry's continual improvements
to the reliability and operability of PTC technology. A period of 14
days, as APTA suggests, would not provide sufficient time for FRA to
review and evaluate an RFA (including a joint RFA impacting several
railroads) and issue a decision letter. Accordingly, FRA's final rule
adopts new paragraph (m)(3)(i), as proposed in the NPRM, without
change.
    New paragraph (m)(3)(ii) explicitly acknowledges that FRA reserves
the right to notify a railroad that it may proceed with making its
proposed changes prior to the 45-day mark, including in an emergency or
under any other circumstances necessitating a railroad's immediate
implementation of the proposed changes to its PTC system. FRA did not
receive any comments on new paragraph (m)(3)(ii), as proposed, and
thus, FRA is adopting that paragraph without change.
    New paragraph (m)(3)(iii) specifies that FRA may require a railroad
to modify its RFA and/or its PTC system, but only to the extent
necessary to ensure safety or compliance with the requirements under
FRA's PTC regulations. FRA did not receive any comments on new
paragraph (m)(3)(iii), as proposed, and thus, FRA is adopting that
paragraph without change.
    If FRA denies an RFA under paragraph (m), new paragraph (m)(3)(iv)
specifies that each applicable railroad will be prohibited from making
the proposed changes to its PTC system until the railroad both
sufficiently addresses FRA's questions, comments, and concerns and
obtains FRA's approval. Consistent with new paragraph (l) of this
section, any host railroads utilizing the same type of PTC system,
including the same certification classification under paragraph (e) of
Sec.  236.1015, may submit information jointly to address FRA's
questions, comments, and concerns following any denial of an RFA under
this section. FRA did not receive any comments on new paragraph
(m)(3)(iv), as proposed, and thus, FRA is adopting that paragraph
without change.
    FRA expects the improved process established in new Sec.
236.1021(l) and (m) of this final rule will ensure FRA's review and
decision timeline, regarding railroads' proposed changes to their FRA-
approved PTCSPs and FRA-certified PTC systems, is predictable and
consistent. FRA's improved process will also enable the industry to
deploy upgrades and make technological advancements more efficiently.

Section 236.1029 PTC System Use and Failures

    Currently, paragraph (h) of this section requires railroads to
report annually to FRA the number of PTC system failures that occurred
during the previous calendar year. This final rule revises this
existing paragraph to clarify and expand the reporting requirement and
require host railroads to submit the information in a Biannual Report
of PTC System Performance (Form FRA F 6180.152). FRA's Excel-based \35\
Form FRA F 6180.152 was placed in the docket for this rulemaking
(Docket No. FRA-2019-0075) for reference and review on December 18,
2020, when FRA published the NPRM.
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    \35\ Excel is a registered trademark of Microsoft Corporation.
All third-party trademarks belong to their respective owners.
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    FRA received two comments on FRA's proposal to increase the
frequency of this reporting requirement from annual to biannual. First,
an individual commented that FRA should increase the frequency of this
important reporting requirement to quarterly, as that frequency will
help FRA more effectively determine if the reliability of PTC systems
is trending upward or downward. Second, in its comments, APTA
recommends keeping Sec.  236.1029(h) as an annual reporting
requirement, noting that increasing the frequency to biannual may
require each railroad to use additional resources to review and compile
data on a more regular basis.
    FRA is adopting the biannual reporting frequency it proposed in the
NPRM because that frequency balances FRA's need to oversee the
reliability and performance of PTC systems actively throughout the
year, with commuter railroads' stated preference for less frequent
reporting. With respect to APTA's comment that increasing the reporting
frequency from annual to biannual will require railroads to compile
performance-related data more regularly, FRA accounts for that burden
in its economic analysis in Section V (Regulatory Impact and Notices)
of this final rule. However, FRA also understands that even under
existing paragraph (h) (with an annual reporting deadline), host
railroads regularly compile this data, not simply before the annual
deadline, to evaluate their PTC systems' failure rates throughout the
year.
    New paragraph (h)(1) specifies this reporting requirement applies
to each host railroad subject to 49 U.S.C. 20157 or 49 CFR part 236,
subpart I, which also includes any new host railroads that become
subject to the statutory mandate in the future and any host railroads
that voluntarily implement a PTC system under subpart I.\36\ For
clarification and simplicity, FRA is removing the phrase ``following
the date of required PTC system implementation established by section
20157 of title 49 of the United States Code'' from existing paragraph
(h) because that phrase is unnecessary now that the final statutory
deadline of December 31, 2020, has passed.
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    \36\ See, e.g., 49 CFR 236.1011(d) (stating that a ``railroad
that elects to install a PTC system when not required to do so may
elect to proceed under this subpart [subpart I] or under subpart H
of this part,'' including the associated filing and reporting
requirements).
---------------------------------------------------------------------------

    In addition, new paragraph (h)(1) requires a host railroad to file
its Biannual Report of PTC System Performance (Form FRA F 6180.152)
electronically, which includes electronic filing on FRA's Secure
Information Repository (https://sir.fra.dot.gov), where railroads file
other PTC-related documents, or another designated location. To the
extent a railroad seeks confidential treatment of any part of its
Biannual Report of PTC System Performance (Form FRA F 6180.152), the
railroad must comply with the existing process and requirements under
49 CFR 209.11, including proper labeling and redacting and providing a
statement justifying nondisclosure and referring to the specific legal
authority claimed. FRA's new Form FRA F 6180.152 contains fields for a
host railroad to identify its request for partial or full
confidentiality and provide the required statement under Sec.
209.11(c), if applicable.
    Also, under this final rule, paragraph (h)(1) requires a host
railroad to include in its Biannual Report of PTC System Performance
(Form FRA F 6180.152) the metrics itemized under paragraphs (h)(1)(i)
through (vii) for the host railroad, each of its applicable tenant
railroads (as explained in new paragraph (h)(4)), and each of its PTC-
governed track segments. In this paragraph, FRA acknowledges that a
host railroad's PTCIP may identify or designate its specific track
segments as territories, subdivisions, districts, main lines, branches,
or corridors, based on a railroad's own naming conventions. FRA expects
that requiring this relatively high-level geographical information
(i.e., by track segment, not by milepost location) will still enable
FRA to monitor trends in PTC system reliability throughout the country
and focus its resources, for example, on any areas where PTC system
failures are occurring at a high rate.
    Relatedly, FRA received one comment from an individual inquiring
what FRA plans to do with the information railroads submit in their new
biannual reports. The commenter states that, from his perspective,
there is very little point in requiring railroads to submit such
reports without FRA making a coincident commitment to producing high-
level summaries of the reports, analyses of trends, and recommendations
based on that analysis. He further notes that compelling those
interested in these reports to seek information through Freedom of
Information Act (FOIA) petitions defeats the entire purpose of a public
agency requiring such reporting, in his view.
    In response to the general inquiry in this individual's comment,
FRA intends to use host railroads' Biannual Reports of PTC System
Performance to evaluate, for example, the rate at which PTC systems are
experiencing failures, including initialization failures, cut outs, and
malfunctions, and trends in system reliability over time. In addition,
these reports will help FRA prioritize its resources, including helping
inform decisions about which railroads may benefit from additional
technical assistance from FRA's PTC specialists. As a part of FRA's
ongoing PTC oversight, the agency will evaluate the best way to
continue its transparent reporting on PTC progress and challenges.
    Consistent with existing paragraph (h), new paragraphs (h)(1)(i)
through (iii) require a host railroad's biannual report to include the
number of PTC-related failures that occurred during the applicable
reporting period, in addition to a numerical breakdown of the
``failures by category, including but not limited to locomotive,
wayside, communications, and back office system failures.'' \37\ In new
paragraphs (h)(1)(i) through (iii), however, FRA acknowledges that the
source or cause of a PTC system failure might not necessarily involve,
in every instance, the PTC system itself, so this final rule includes
an additional category for railroads to select in the applicable drop-
down menu in Form FRA F 6180.152--i.e., ``a non-PTC component.''
---------------------------------------------------------------------------

    \37\ Quoting existing 49 CFR 236.1029(h).
---------------------------------------------------------------------------

    Another difference between the existing paragraph (h) and FRA's new
paragraphs (h)(1)(i) through (iii) is that the final rule utilizes the
statutory terminology under 49 U.S.C. 20157(j)(4) as referenced above--
initialization failures, cut outs, and malfunctions--which are now
defined under paragraph

(b) of Sec.  236.1003. FRA is aware that railroads track their PTC
system failures in this manner (by type of failure), given the existing
temporary reporting requirement under 49 U.S.C. 20157(j)(4) and FRA's
associated mandatory form, the Statutory Notification of PTC System
Failures (Form FRA F 6180.177, OMB Control No. 2130-0553). FRA did not
receive any comments on new paragraphs (h)(1)(i) through (iii), as
proposed, and this final rule adopts these proposed paragraphs from the
NPRM, without change.
    In the NPRM, FRA also proposed to expand the existing reporting
requirement under paragraph (h) to encompass certain positive,
performance-related information, as otherwise the information FRA
receives would be about PTC system failures only. Specifically, FRA
proposed that new paragraph (h)(1)(iv) would require a host railroad to
identify the number of intended enforcements by the PTC system and any
other instances in which the PTC system prevented an accident or
incident on the host railroad's PTC-governed main lines, during the
applicable reporting period.
    FRA received extensive comments on this proposal, including from
AAR, ASLRRA, APTA, Amtrak, and NJT. FRA addresses the general comments
about paragraph (h)(1)(iv) immediately below. FRA responds to the
related ACSES II-specific comments later in this section when
discussing new paragraph (h)(5).
    AAR, ASLRRA, and APTA each comment that the proposed metric,
``intended enforcements,'' is a subjective and unreliable data point.
They note that enforcements by a PTC system, whether intended or not,
indicate the system is working. Both APTA and Amtrak recommend removing
this metric from the final rule in its entirety. FRA declines APTA's
and Amtrak's recommendation to eliminate this metric because if FRA
were to do so, host railroads' Biannual Reports of PTC System
Performance (Form FRA F 6180.152) would not include any positive data
about their PTC systems' performance.
    AAR and ASLRRA, on the other hand, recommend that FRA refine the
metric to be more objective by removing the adjective ``intended'' and
retaining the term ``enforcements.'' AAR and ASLRRA explain that this
metric is far less subjective and will result in a more easily
normalized metric to compare to railroads' other data. They further
observe that this metric--i.e., enforcements in general--would avoid
cost and resource burdens, which railroads would bear if they needed to
analyze individual enforcements to determine whether to classify them
as intended. FRA concurs with AAR and ASLRRA's analysis and, in this
final rule, under new paragraph (h)(1)(iv), FRA adopts AAR and ASLRRA's
joint recommendation to require host railroads to identify the total
number of all enforcements by the PTC system during the applicable
reporting period, whether the enforcements were intended or not.
    FRA interprets the term ``enforcement'' in new paragraph (h)(1)(iv)
consistently with how the term ``enforce'' is applied in FRA's existing
PTC regulations, which include references to, among other things, how a
PTC system shall enforce speeds, movement authorities, and signal
indications. See, e.g., 49 CFR 236.1005, 236.1013, 236.1015, and
236.1047(a)(3). FRA expects that new paragraph (h)(1)(iv)--focusing on
enforcements by a PTC system in general--will provide valuable
performance-related data, while avoiding the issues APTA, AAR, and
ASLRRA raise regarding the NPRM's more subjective, resource-intensive
proposal to report only intended enforcements.
    Furthermore, based on comments from AAR, ASLRRA, and APTA, FRA
recognizes that its initial proposal for paragraph (h)(1)(iv) also
created confusion. In the NPRM, FRA proposed that paragraph (h)(1)(iv)
would require a host railroad to identify the number of intended
enforcements by the PTC system and any other instances in which the PTC
system prevented an accident or incident on the host railroad's PTC-
governed main lines, during the applicable reporting period. Several
comments demonstrate that some people interpreted that proposed content
requirement as referring to one connected data point, but it was
proposing two separate data points, distinguished by the word ``and.''
    Specifically, under proposed paragraph (h)(1)(iv), the NPRM
proposed to require railroads to identify: (1) The number of intended
enforcements by the PTC system (discussed above); and (2) any other
instances in which the PTC system prevented an accident or incident on
a host railroad's PTC-governed main lines. Highlighting the confusion
about these two separate elements, several comments from AAR, ASLRRA,
and APTA assert that it is often impossible to determine if an intended
PTC enforcement definitively prevented an accident or not.\38\
---------------------------------------------------------------------------

    \38\ In the preceding paragraphs, FRA explains why this final
rule eliminates the word ``intended'' from new paragraph (h)(1)(iv),
based on AAR and ASLRRA's joint comments and APTA's comments.
---------------------------------------------------------------------------

    FRA maintains that the second metric referenced in paragraph
(h)(1)(iv) of the NPRM--i.e., the number of instances in which the PTC
system prevented an accident or incident--is necessary to enable FRA to
evaluate and quantify PTC technology's positive impact on rail safety.
This second metric is a subset of the first metric (the total number of
enforcements by the PTC system). FRA understands that a PTC system
taking enforcement action does not necessarily mean that, in every
case, an accident or incident was prevented, for several reasons.
First, there may be cases when a PTC system unnecessarily initiates a
brake application (an unintended enforcement), meaning the system, for
some reason, took enforcement action when it was not warranted. Second,
there may be cases when a PTC system properly takes enforcement action,
but an accident or incident would not have occurred even if the PTC
system did not take enforcement action. For example, a PTC system might
take enforcement action properly to prevent a train from passing a red
signal, but in this hypothetical, there was no chance of a train-to-
train collision under the specific circumstances because the main
line's train schedule was such that only one train operates in that
area each day. Although the PTC system properly took enforcement
action, that specific enforcement by the PTC system did not actually
prevent an accident or incident, as an accident or incident would not
have necessarily occurred otherwise.
    For clarity about these two data points, this final rule
recategorizes this second metric (the subset of enforcements that
prevented an accident or incident) as a separate content requirement,
under new paragraph (h)(1)(v). Specifically, new paragraph (h)(1)(v)
requires a railroad to identify the number of enforcements by the PTC
system in which an accident or incident was prevented, as discussed
further below. Such a data point will help demonstrate the extent to
which PTC systems are performing as designed and improving safety, by
highlighting concrete instances in which enforcement by the PTC system
actually prevented a train-to-train collision, over-speed derailment,
incursion into an established work zone, or movement of a train through
a switch left in the wrong position.
    In their comments, AAR, ASLRRA, and APTA raise concerns that this
metric relies on speculation and subjective assessments. For example,
in their comments, they assert that a PTC

system might have prevented only a close call,\39\ or in the absence of
a PTC system, a train crew might have taken subsequent action that
would have prevented the accident. In response to these comments, FRA
wishes to clarify the purpose and scope of new paragraph (h)(1)(v).
This metric focuses on only specific, undisputed instances in which a
PTC system actually prevented an accident or incident, as defined under
49 CFR 225.5. In other words, host railroads should report, under
paragraph (h)(1)(v), only the subset of PTC system enforcements where
an accident or incident would have occurred under the exact
circumstances, but for the intervention of the PTC system. For example,
host railroads should count the following types of scenarios: A PTC
system prevented a train from traveling into a siding and colliding
with a train occupying the siding, or a PTC system prevented a train
from moving past a red signal, where another train was occupying the
track. These are only two examples of instances where a foreseeable
accident or incident would have occurred, but for the PTC system's
intervention. These examples are not intended to be exhaustive, but
rather to convey that paragraph (h)(1)(v) is focused on undisputed
scenarios where an accident or incident would have otherwise occurred
under the exact circumstances, as opposed to scenarios where there was
only a chance of an accident or incident occurring if the facts or
circumstances were changed or exacerbated.
---------------------------------------------------------------------------

    \39\ FRA expects that APTA, AAR, and ASLRRA's use of the phrase
``only close calls'' refers to close calls in general, where an
accident or incident did not occur but might have under different
circumstances. The industry might also be referring to the types of
close calls that can be reported under the Confidential Close Call
Reporting System (C\3\RS). Under C\3\RS, a close call is ``any
condition or event that may have the potential for more serious
safety consequences. Some examples of close calls could be, but not
limited to, a train missing a temporary speed restriction, a train
striking a derail without derailing, a blue flag not removed after
releasing equipment, or proper track protection not provided during
track maintenance.'' The National Aeronautics and Space
Administration, C\3\RS Frequently Asked Questions (2015), available
at https://c3rs.arc.nasa.gov/docs/C3RS_FAQ.pdf. Based on this
definition and the general meaning of the term, FRA expects that
close calls encompass a broader universe of scenarios than the fact-
specific scenarios under new paragraph Sec.  236.1029(h)(1)(v).
---------------------------------------------------------------------------

    The types of statistics this final rule requires railroads to
provide, under new paragraphs (h)(1)(iv) and (v), will help demonstrate
the extent to which PTC systems are meeting their desired objectives.
    In new paragraphs (h)(1)(vi) and (vii), FRA requires a host
railroad's Biannual Report of PTC System Performance (Form FRA F
6180.152) to include certain contextual data to help FRA understand how
the occurrences of PTC system initialization failures, cut outs, and
malfunctions compare to all operations on that host railroad's PTC-
governed main lines.\40\ Paragraphs (h)(1)(vi) and (vii) generally
encompass the same types of denominators currently set forth in the
Statutory Notification of PTC System Failures (Form FRA F 6180.177)
with one notable difference. Unlike Form FRA F 6180.177, this final
rule requires the same two data points, under new paragraphs (h)(1)(vi)
and (vii), from a host railroad and its applicable tenant railroads. In
practice, FRA has found that host railroads providing certain
denominators for tenant railroads and other denominators for the host
railroad itself makes it difficult for FRA to evaluate the rate at
which failures are occurring system-wide. FRA expects that requiring
uniform figures will help the agency derive more accurate, objective,
and comparable statistics. Furthermore, FRA understands that host
railroads collect the type of data under paragraphs (h)(1)(vi) and
(vii) for their own operations and their tenant railroads' operations
because several host railroads have provided those additional data
points in their Statutory Notifications of PTC System Failures (Form
FRA F 6180.177) to date.
---------------------------------------------------------------------------

    \40\ FRA's Biannual Report of PTC System Performance (Form FRA F
6180.152) includes fields for host railroads to provide the raw
denominators set forth under paragraphs (h)(1)(vi) through (vii),
and FRA will calculate the rate of failures, utilizing those raw
denominators. FRA has found that providing fields for railroads to
enter such raw denominators, instead of percentages or rates, helps
FRA accurately interpret railroads' data, especially when comparing
multiple railroads' data or a single railroad's data to its own
prior reports.
---------------------------------------------------------------------------

    Specifically, new paragraph (h)(1)(vi) requires a host railroad's
Biannual Report of PTC System Performance (Form FRA F 6180.152) to
include the number of scheduled attempts at initialization of the PTC
system during the applicable reporting period, which will help FRA
calculate the actual rate of that railroad's PTC system initialization
failures.\41\ FRA did not receive any comments on this paragraph, and
this final rule adopts this paragraph, as proposed in the NPRM, without
change.
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    \41\ As a note, in the NPRM, FRA categorized this content
requirement under proposed paragraph (h)(1)(v). In this final rule,
FRA categorizes this content requirement (the number of scheduled
attempts at initialization of the PTC system) as new paragraph
(h)(1)(vi), as (h)(1)(v) sets forth the content requirement about
the number of specific instances in which a PTC system prevented an
accident or incident.
---------------------------------------------------------------------------

    In the NPRM, under formerly proposed paragraph (h)(1)(vi), FRA also
proposed to require a host railroad to identify the number of trains
governed by the PTC system during the applicable reporting period, in
its biannual report. FRA is eliminating this proposed content
requirement in this final rule based on comments from AAR and ASLRRA
explaining that this proposal would not result in objective data. AAR
and ASLRRA note that different railroads use different metrics to
identify and define ``trains'' (e.g., crew starts, brake tests, the
addition or subtraction of portions of a train, interchanges between
railroads with re-crews, etc.). Their comments further explain that the
number of trains involved in a geographic movement may vary
considerably by railroad, creating the potential for inconsistency and
data that cannot be compared reliably. FRA concurs with these comments
and, therefore, FRA's final rule does not adopt that proposed content
requirement from the NPRM.\42\
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    \42\ For clarity, FRA notes that the citation of this proposed
paragraph in the NPRM was (h)(1)(vi). New paragraph (h)(1)(vi) in
this final rule concerns the number of scheduled attempts at
initialization of the PTC system, which was proposed paragraph
(h)(1)(v) in the NPRM. Given FRA's decision to separate the two
elements of proposed paragraph (h)(1)(iv) in the NPRM (into
(h)(1)(iv) and (v) in the final rule), paragraph (h)(1) in the final
rule includes the same number of paragraphs (i.e., (i) to (vii)) as
the NPRM, even though this final rule does not adopt one of the
proposed content requirements from the NPRM, based on AAR and
ASLRRA's comments.
---------------------------------------------------------------------------

    New paragraph (h)(1)(vii), as proposed in the NPRM, requires a host
railroad to provide the number of train miles governed by the PTC
system during the applicable reporting period, in its biannual report.
In their comments, AAR and ASLRRA express support for this metric,
noting that it is not subject to variation across railroads, and there
is little potential for inconsistency. From AAR and ASLRRA's
perspective, the metric of PTC train miles provides the clearest and
most easily understood method for statistical normalization when
calculating PTC system reliability. As this is the only comment FRA
received regarding paragraph (h)(1)(vii) and FRA concurs with AAR and
ASLRRA's analysis, FRA's final rule adopts that new paragraph as
proposed in the NPRM.
    Finally, with respect to paragraph (h)(1) in general, an individual
commented that FRA should require railroads to submit the following
additional data in their Biannual Reports of PTC System Performance
(Form FRA F 6180.152): ``Any reports from hardware or software
suppliers or vendors under Sec.  263.1023(b) about

software failures or reported vulnerabilities.'' FRA declines to adopt
this recommendation in the final rule because FRA already receives such
reports on an ongoing basis. For example, pursuant to Sec.
236.1023(h), PTC system suppliers and vendors must notify FRA directly
of any safety-relevant failure, defective condition, or previously
unidentified hazard discovered by the supplier or vendor and the
identity of each affected and notified railroad. Furthermore, pursuant
to the instructions under Sec.  236.1023(f), suppliers, vendors, and
railroads must submit such reports to FRA within 15 days of discovering
the reportable issue. Therefore, FRA does not consider it necessary for
host railroads to identify such reports in their Biannual Reports of
PTC System Performance (Form FRA F 6180.152), as FRA already receives
those reports within 15 days, depending on the circumstances, directly
from suppliers, vendors, and railroads, as Sec.  236.1023 requires.
    In the NPRM, FRA proposed that new paragraph (h)(2) would require a
host railroad's Biannual Report of PTC System Performance (Form FRA F
6180.152) to include a summary of any actions the host railroad and its
tenant railroads are taking to improve the performance and reliability
of the PTC system continually. In their comments, AAR and ASLRRA state
that information regarding PTC system improvements is not related to
biannual failure statistics, and any such summary should be optional.
Based on AAR and ASLRRA's comment, FRA is rewording the content
requirement under new paragraph (h)(2) to clarify the scope and purpose
of this type of summary and its relation to the biannual failure
statistics. Specifically, new paragraph (h)(2) will require a host
railroad's biannual report to include a summary of any actions the host
railroad and its tenant railroads are taking to reduce the frequency
and rate of initialization failures, cut outs, and malfunctions, such
as any actions to correct or eliminate systemic issues and specific
problems.
    In other words, this narrative section will provide railroads an
opportunity to explain briefly the steps they are taking to reduce the
occurrence of PTC system failures, which could help put the biannual
statistics into perspective. FRA did not propose including this content
requirement under paragraph (h)(1) because that paragraph is track
segment-specific, and FRA acknowledges that railroads generally take a
system-wide approach to improving the reliability and performance of
their PTC systems. Accordingly, consistent with the NPRM, this final
rule categorizes this content requirement in the separate paragraph
(h)(2), and FRA's Excel-based Form FRA F 6180.152 contains a field for
railroads to enter this summary.
    In the NPRM, FRA outlined, under proposed paragraph (h)(3), the
dates by which host railroads must submit their Biannual Reports of PTC
System Performance (Form FRA F 6180.152) to FRA--i.e., by July 31
(covering the period from January 1 to June 30), and by January 31
(covering the period from July 1 to December 31 of the prior calendar
year). In its comments, APTA notes that it is reasonable for FRA to
require submission of this data sooner than the current deadline. As a
reminder, the current annual filing deadline under existing paragraph
(h) is April 16th. Under the existing framework, FRA must wait until
April 16th each year to receive railroads' failure-related data from
the prior calendar year--data which is quite outdated by the time it is
filed.
    Though APTA agrees that requiring earlier submission of the data is
reasonable, APTA asserts that filing the data about 30 days after the
reporting period ends might be insufficient to process and compile the
data. APTA recommends that the reporting deadline should be ``within 45
days of the reporting period.'' However, FRA expects that providing
railroads one full month (from the end of the half-year period) to
complete Form FRA 6180.152 will be sufficient and reasonable, given
railroads' experience, since 2016, in submitting their Quarterly PTC
Progress Reports (Form FRA F 6180.165) one month after the end of the
quarter. Furthermore, under the temporary Statutory Notification of PTC
System Failures (Form FRA F 6180.177) pursuant to 49 U.S.C.
20157(j)(4), the due date for each monthly notification is currently
the 15th of the following month--so, for example, the notification
regarding initialization failures, cut outs, and malfunctions during
December 2020 was due by January 15, 2021. At least in part due to this
temporary reporting requirement, which expires December 31, 2021, FRA
expects that by the time this final rule becomes effective, host
railroads will be experienced in regularly tracking the performance of
their PTC systems. In fact, they are currently required to submit the
data more quickly, within 15 days of the end of each month.
    Accordingly, FRA expects that allowing one full month for railroads
to prepare and submit their Biannual Reports of PTC System Performance
(Form FRA F 6180.152) under new paragraph (h)(3) is a reasonable
timeframe for this permanent reporting requirement. FRA did not receive
any other comments about new paragraph (h)(3) and the reporting
deadline therein, and this final rule adopts the proposal in the NPRM
without change.
    In the NPRM, FRA proposed that new paragraph (h)(4) would
explicitly require any applicable tenant railroads that operate on a
host railroad's PTC-governed main line(s) to provide the necessary data
to their applicable host railroads by a specific date before the
biannual filing deadlines--i.e., by July 15 (for the biannual report
covering the period from January 1 to June 30) and by January 15 (for
the biannual report covering the period from July 1 to December 31 of
the prior calendar year).
    In their comments, AAR and ASLRRA explain that railroads have
already established an efficient process to collect tenant railroads'
data, and FRA should leave it to the host and tenant railroads to
determine the most effective way to coordinate regarding tenant
railroads' PTC-related failures. AAR and ASLRRA also remark that the
deadlines specified in proposed paragraph (h)(4) of the NPRM may not
allow adequate time for a host railroad to investigate a tenant
railroad's failures and capture them in the host railroad's Biannual
Report of PTC System Performance (Form FRA F 6180.152). They further
note that, in practice, communications between host and tenant
railroads may need to occur much earlier and on a continuous basis
throughout a reporting period. Accordingly, AAR and ASLRRA recommend
that FRA delete this proposal in the final rule, arguing it is
unnecessary.
    As background, FRA's proposed paragraph (h)(4) regarding tenant
railroad responsibilities was based, in part, on comments AAR and APTA
previously submitted during the comment period associated with the
Statutory Notification of PTC System Failures (Form FRA F 6180.177).
Specifically, on February 28, 2020, AAR commented, ``[i]f FRA is going
to require hosts to report tenant data, the agency must impose a clear
and direct requirement on tenants to report the desired information to
their host railroad.'' \43\ In APTA's comments, also dated February 28,
2020, APTA observed that a host railroad would need to obtain ``all
necessary logs to complete the analyses'' from its tenant railroads to
complete Form FRA F 6180.177 accurately.\44\
---------------------------------------------------------------------------

    \43\ Docket Nos. FRA-2019-0004-N-20 and FRA-2020-0004-N-3; 85 FR
15022, 15027 (Mar. 16, 2020).
    \44\ Id.

---------------------------------------------------------------------------

    However, based on AAR and ASLRRA's subsequent comments, dated
February 16, 2021, on the NPRM, FRA can appreciate that specifying an
exact deadline by which a tenant railroad must submit the pertinent
data to its applicable host railroads could have the unintended
consequence of constraining otherwise effective coordination between
host and tenant railroads. For example, as AAR and ASLRRA recognize,
certain host railroads might prefer to receive that data by an earlier
date or on a continuous basis. Therefore, in this final rule, FRA is
removing all references in new paragraph (h)(4) to specific dates by
which tenant railroads must provide the data to their applicable host
railroads.
    Instead, new paragraph (h)(4) establishes a general requirement for
each applicable tenant railroad that operates on a host railroad's PTC-
governed main line(s) to provide the information required under
paragraphs (h)(1) and (2) to each applicable host railroad, without
imposing a date-specific deadline. Consistent with the NPRM, the text
in paragraph (h)(4) clarifies that a host railroad does not need to
include data in Form FRA F 6180.152 regarding a tenant railroad that is
subject to an exception under 49 CFR 236.1006(b)(4) or (5) during the
applicable reporting period because such a tenant railroad's movements
would not be governed by PTC technology in that case, and there would
not be any pertinent, performance-related data to submit regarding that
tenant railroad.
    In addition, new paragraph (h)(4) requires the applicable tenant
railroads to provide the necessary data to each applicable host
railroad on a continuous basis. FRA based this clause on AAR and
ASLRRA's recommendation that FRA defer to host and tenant railroads to
coordinate and determine effective timelines for the exchange of this
information. FRA also recognizes that this provision must refer, at
least minimally, to a timeframe. Otherwise, it would be difficult or
impossible for FRA to take enforcement action against a tenant
railroad, if necessary, for failing to submit the necessary data to its
host railroad to facilitate the host railroad's timely submission of
its Biannual Report of PTC System Performance (Form FRA F 6180.152).
The language in new paragraph (h)(4) of this final rule requires tenant
railroads to provide certain data to their host railroads, without
unnecessarily interfering with host and tenant railroads' existing
processes for coordination and data-sharing.
    Finally, new paragraph (h)(5) provides temporary regulatory relief
to railroads utilizing ACSES II or ASES II (referred to hereinafter as
ACSES II). This new provision is in response to extensive comments from
AAR, ASLRRA, APTA, Amtrak, and NJT regarding new paragraph (h)(1)(iv)
of this final rule. In their respective comments, AAR, ASLRRA, APTA,
Amtrak, and NJT express concern that one metric (the number of
enforcements by the PTC system) could impose a significant burden on
railroads operating ACSES II because almost all ACSES II railroads need
to obtain that data manually, based on that system's current
capabilities or configuration. For example, Amtrak's comments summarize
the issue in the following manner: ``The ACSES system does not
currently have the technical capability to automatically take
enforcement data which is stored in a locomotive's on-board computer,
and to transmit that data . . . to a centralized collection and
analysis location.''
    Amtrak's and APTA's comments each assert that this specific content
requirement would create a tremendous strain on the resources of host
railroads that operate ACSES II. Similarly, NJT notes that this
requirement is especially onerous for railroads that utilize this type
of PTC technology. Both Amtrak's comments and AAR and ASLRRA's comments
describe the following burden estimate: An employee would manually
perform a locomotive download by connecting a laptop to that engine (an
approximately 20-minute process for each locomotive in the fleet), and
then it would take approximately 30 minutes to process and analyze the
data from each locomotive. Amtrak, AAR, and ASLRRA assert that this
process would occur every 48 hours, but they do not specify why. FRA
expects that their estimated frequency of performing downloads might be
due to ACSES II's current onboard memory or storage limitations.
    In their respective comments, APTA and Amtrak recommend removing
the content requirement under paragraph (h)(1)(iv) from the final rule.
On the other hand, AAR and ASLRRA \45\ recommend that FRA amend the
proposal after consulting with ACSES II railroads regarding a more
feasible manner for those railroads to compile the enforcement-related
metric. From comments received and FRA's experience overseeing PTC
technology, FRA understands that this concern about paragraph
(h)(1)(iv) (i.e., the number of enforcements by the PTC system) and the
manual process to collect such data is specific only to some railroads
utilizing ACSES II, and it does not implicate other types of PTC
systems.
---------------------------------------------------------------------------

    \45\ In addition, NJT comments that it strongly supports AAR and
ASLRRA's joint comments, in their entirety.
---------------------------------------------------------------------------

    Furthermore, FRA recognizes that the comments from Amtrak, AAR, and
ASLRRA emphasize that ``nearly all'' or ``most'' ACSES II host
railroads currently obtain such data manually. There are currently
seven host railroads that utilize ACSES II. Based on host railroads'
PTCSPs and other discussions, FRA is aware that at least one ACSES II
host railroad currently utilizes an automated tool that remotely
collects and analyzes data from the PTC system, including enforcements
by the PTC system (the metric under paragraph (h)(1)(iv)) and the
performance of various wayside equipment. This is important to
underscore because it suggests to FRA that the other six ACSES II host
railroads could likewise, over time, explore options or tools for
obtaining their enforcement-related data remotely (i.e., without
manually performing a locomotive download while connected to each
locomotive).
    In addition to the tool one ACSES II host railroad is currently
utilizing, FRA is aware that other automated options are available to
collect the type of data under paragraph (h)(1)(iv). For example, FRA
knows of at least one PTC system supplier with a software solution or
tool that, among other capabilities, automatically generates reports
regarding PTC technology's performance and functioning, including
enforcements by the PTC system.
    FRA declines to eliminate paragraph (h)(1)(iv) from the final rule,
as the number of enforcements by a PTC system is an integral metric
about PTC technology's performance.\46\ Notably, no other alternatives
were suggested by any commenter. Nonetheless, FRA's final rule
recognizes that currently, six of the 35 applicable host railroads
would likely need to collect this metric manually in the near term. To
avoid imposing a significant burden on those railroads, this final
rule, under new paragraph (h)(5), provides temporary relief from the
content requirement under paragraph (h)(1)(iv) to any railroad
operating a PTC system

classified under FRA Type Approval Nos. FRA-TA-2010-001 (ACSES II) or
FRA-TA-2013-003 (ASES II).\47\ Specifically, those railroads must begin
submitting the specific metric required under paragraph (h)(1)(iv) not
later than January 31, 2023. ACSES II and ASES II host railroads may
certainly begin submitting that metric in their Biannual Reports of PTC
System Performance (Form FRA F 6180.152) before January 31, 2023, but
this provision offers flexibility to those railroads in the short term,
based on comments received.
---------------------------------------------------------------------------

    \46\ Furthermore, FRA expects that the number of enforcements by
a PTC system during a reporting period is important information from
a railroad's perspective, for other purposes as well. For example,
that data could inform a railroad about the specific events when its
PTC system needed to initiate braking events, and help the railroad
identify general train handling issues and opportunities for
increased training.
    \47\ FRA understands that certain host railroads' ACSES II
systems are also classified under additional FRA Type Approvals, due
to certain FRA-approved system variances. However, for this purpose,
FRA is referring to the primary, underlying ACSES II and ASES II FRA
Type Approvals, which all applicable ACSES II host railroads
utilize, at least in part.
---------------------------------------------------------------------------

    To be clear, this relief applies to the single content requirement
under paragraph (h)(1)(iv) only, and these railroads must provide all
other data required under paragraph (h) in their Biannual Reports of
PTC System Performance (Form FRA F 6180.152), once this final rule is
effective. Between publication of this final rule and January 31, 2023,
FRA will consult with the six applicable ACSES II railroads to help
identify more feasible data collection approaches, consistent with the
recommendation from AAR, ASLRRA, and NJT. In general, FRA expects
paragraph (h)(5) will provide the six applicable ACSES II host
railroads sufficient time either to refine and expedite their manual
processes or to adopt a more automated process, with respect to
paragraph (h)(1)(iv).
    On a separate topic and as noted above, existing Sec.  236.1029(h)
currently requires railroads, by April 16th each year, to submit an
annual report of the number of PTC system failures that occurred during
the previous calendar year. In their comments, APTA, AAR, and ASLRRA
request that FRA exercise discretion with respect to the annual report
due April 16, 2021, pursuant to existing paragraph (h). Specifically,
APTA suggests that railroads should submit the required data from a
limited period (from June 2020 to December 2020), instead of calendar
year 2020, as existing paragraph (h) requires. AAR and ASLRRA request
that FRA accept a compilation of data from April 1, 2020, to March 31,
2021, to satisfy the annual reporting requirement due April 16, 2021.
FRA appreciates these comments, but declines these recommendations. FRA
is not providing retroactive regulatory relief via this rulemaking.
Existing Sec.  236.1029(h) currently governs, and FRA's changes to
paragraph (h) will be effective after this final rule is published.
    In addition, AAR and ASLRRA recommend that once this final rule is
effective, the new Biannual Report of PTC System Performance (Form FRA
F 6180.152) under revised paragraph (h) should replace the temporary
reporting requirement FRA adopted in 2020. FRA declines this
recommendation, as it is not legally permissible. AAR and ASLRRA are
referring to the Statutory Notification of PTC System Failures (Form
FRA F 6180.177, OMB Control No. 2130-0553), which implements the
statutory reporting requirement under 49 U.S.C. 20157(j)(4). That
separate reporting requirement remains in place, by statute, until
December 31, 2021.\48\
---------------------------------------------------------------------------

    \48\ 49 U.S.C. 20157(j). For additional information about this
temporary statutory reporting requirement, please see Section III-B
(Expanding the Performance-related Reporting Requirements) in this
final rule.
---------------------------------------------------------------------------

V. Regulatory Impact and Notices

A. Executive Order 12866 (Regulatory Planning and Review)

    This final rule is a nonsignificant regulatory action under
Executive Order 12866, ``Regulatory Planning and Review.'' \49\ FRA
made this determination by finding that the economic effects of this
regulatory action will not exceed the $100 million annual threshold
defined by Executive Order 12866.
---------------------------------------------------------------------------

    \49\ 58 FR 51735 (Sep. 30, 1993).
---------------------------------------------------------------------------

    This final rule will reduce the burden on railroads while improving
railroad safety. Specifically, in addition to the benefits quantified
in the Industry Business Benefits section below, FRA expects this final
rule will result in safety benefits for the railroad industry. For
example, the expedited RFA process in this final rule will accelerate
railroads' ability to update their FRA-certified PTC systems to ensure
safe operations (e.g., through ongoing, necessary maintenance) and
enhance the technology (e.g., by adding new functionality or improving
a PTC system's reliability and operability). In short, this final rule
will enable railroads to deploy safety improvements and technological
advancements more efficiently and frequently. In addition, the expanded
reporting requirement will help railroads and FRA identify systemic
failures more quickly and precisely, enabling swifter intervention and
resolution.
    To enable FRA to oversee the performance and reliability of
railroads' PTC systems effectively, FRA is revising the reporting
requirement under 49 CFR 236.1029(h). FRA's changes include, but are
not limited to, increasing the reporting frequency from annual to
biannual, clarifying the types of statistics and information the
reports must include, and expanding the reporting requirement to
encompass positive performance-related information. Accordingly, FRA
estimates that the number of hours it will take a host railroad to
report the required information under Sec.  236.1029(h) will increase
under this final rule. To provide clarity and precision regarding the
reporting requirement under Sec.  236.1029(h), FRA developed an Excel-
based Biannual Report of PTC System Performance (Form FRA F 6180.152)
that railroads must utilize to satisfy this reporting requirement.
    While FRA is expanding this existing reporting requirement, FRA's
final rule reduces the regulatory and administrative burden on host
railroads under Sec.  236.1021. Specifically, FRA is establishing a
streamlined process to enable the railroad industry to make
technological advancements to FRA-certified PTC systems more
efficiently. Instead of the existing RFA approval process under Sec.
236.1021 for FRA-approved PTCSPs and FRA-certified PTC systems, FRA's
final rule: (1) Requires host railroads to comply with a streamlined
process, including a concise RFA; and (2) establishes a 45-day FRA
decision deadline. This more efficient process will result in business
benefits for host railroads and savings for the government. For
example, FRA's simplification of the content requirements associated
with an RFA to a PTCSP under Sec.  236.1021 will reduce the number of
burden hours per RFA. In addition, FRA is permitting host railroads
that utilize the same type of PTC system to submit joint RFAs to their
PTCDPs and PTCSPs, thus reducing the number of RFAs railroads must
submit in the future.
    Currently, 35 host railroads must submit RFAs before making certain
changes to their PTCSPs and PTC systems under Sec.  236.1021, with many
host railroads projected to submit one or two RFAs per year. Over the
next ten years, FRA expects there will be an average increase of 1.5
new PTC-governed host railroads per year, beginning in the second year,
for a total of approximately 14 additional host railroads. Table A
summarizes the types of PTC systems the 35 PTC-mandated host railroads
implemented, as of 2020, and the approximate number of RFAs host
railroads would file under FRA's

existing regulations, without this final rule.
---------------------------------------------------------------------------

    \50\ Several host railroads have implemented multiple types of
PTC systems.

                   Table A--Estimated Number of Required RFAs to PTCSPs by Type of PTC System
----------------------------------------------------------------------------------------------------------------
                                                              PTC systems being
                                                                implemented by    Annual  number   Total  number
                     Type of PTC system                      host railroads  (as   of  RFAs per      of  RFAs
                                                                 of 2020) 50        PTC system
----------------------------------------------------------------------------------------------------------------
ACSES II...................................................                    8               1               8
CBTC.......................................................                    1               1               1
E-ATC......................................................                    5               1               5
ITCS.......................................................                    1               1               1
I-ETMS.....................................................                   26               2              52
                                                            ----------------------------------------------------
    Total..................................................                   41  ..............              67
----------------------------------------------------------------------------------------------------------------

    Currently, without this final rule, FRA estimates the 35 host
railroads would need to submit approximately 67 RFAs annually given the
types of changes the industry intends to make to their PTC systems each
year under 49 CFR 236.1021(h)(3)-(4) in the future.\51\ FRA estimates
that the current hourly burden is 160 hours per RFA (without this final
rule), based on previously approved PTC Information Collection Requests
(ICRs).
---------------------------------------------------------------------------

    \51\ Previously, FRA estimated it would receive, on average,
approximately 10 RFAs to railroads' PTCIPs, PTCDPs, and PTCSPs each
year. However, from discussions with PTC-mandated railroads, FRA
found the estimate did not account adequately for the number of RFAs
host railroads intend to submit to their PTCSPs annually under Sec.
236.1021(h)(3)-(4) without the final rule. Tables A, B, and F in
this final rule estimate more accurately the approximate average
number of RFAs host railroads would submit to their PTCSPs each year
under the existing regulations and under the final rule. See 84 FR
72121, 72127 (Dec. 30, 2019).
---------------------------------------------------------------------------

    Table B below provides the current hourly burden and costs that
host railroads face when submitting RFAs to their PTCSPs under the
existing Sec.  236.1021.

                    Table B--Current Host Railroad Hourly Burden and Cost for RFAs to PTCSPs
----------------------------------------------------------------------------------------------------------------
                                               Hour burden per    Total  annual
            Year                Submissions       submission           cost          7-Percent       3-Percent
----------------------------------------------------------------------------------------------------------------
1...........................              67                160         $830,505        $830,505        $830,505
2...........................              69                160          855,296         799,342         830,385
3...........................              70                160          867,692         757,876         817,883
4...........................              72                160          892,483         728,532         816,749
5...........................              73                160          904,879         690,328         803,973
6...........................              75                160          929,670         662,842         801,942
7...........................              76                160          942,066         627,738         788,965
8...........................              78                160          966,857         602,110         786,143
9...........................              79                160          979,252         569,934         773,031
10..........................              81                160        1,004,044         546,133         769,516
                             -----------------------------------------------------------------------------------
    Total...................             740  .................        9,172,744       6,815,340       8,019,091
----------------------------------------------------------------------------------------------------------------

Costs
    As described above, FRA is also amending the reporting requirement
under 49 CFR 236.1029(h) by increasing the frequency from annual to
biannual, clarifying the types of statistics and information the
reports must include, and expanding the reporting requirement to
encompass positive performance-related information. Though FRA's final
rule will increase the number of required submissions, as well as the
hourly burden per submission, FRA estimates the new costs will be
offset by the business benefits derived from the final rule's changes
as presented in the Business Benefits section below.
    To clarify the information FRA is requiring host railroads to
submit under Sec.  236.1029(h), FRA created an Excel-based form for the
Biannual Report of PTC System Performance (Form FRA F 6180.152). This
form incorporates the information currently required under Sec.
236.1029(h) and the additional types of information specified in this
final rule. Host railroads with FRA-certified PTC systems are generally
experienced in compiling this type of information, given the
corresponding reporting requirements under the temporary Statutory
Notification of PTC System Failures (Form FRA F 6180.177, OMB Control
No. 2130-0553).
    During the comment period for the NPRM, FRA received a general
request from APTA on behalf of the commuter rail industry. APTA
requests that FRA review its cost-benefit analysis associated with the
changes to Sec.  236.1029(h) proposed in the NPRM, including
establishing the Biannual Report of PTC System Performance (Form FRA F
6180.152). Based on comments received, FRA reviewed and updated its
burden estimate associated with expanding the reporting requirement
under Sec.  236.1029(h). The table below displays FRA's updated
estimate of the burden associated with Sec.  236.1029(h). Please note
that the increased burden estimate is based on FRA's review of its
proposed revisions to Sec.  236.1029(h) based on comments received, and
not on any substantial changes in Sec.  236.1029(h) from the NPRM to
the final rule.

                Estimate Changes From NPRM to Final Rule
------------------------------------------------------------------------
                                                            Final rule
               Description                 NPRM  (hours)      (hours)
------------------------------------------------------------------------
Form FRA F 6180.152 Burden (First Three               12              48
 Years).................................
Form FRA F 6180.152 Burden (After Three               10              28
 Years).................................
------------------------------------------------------------------------

    The hourly burden associated with submitting the information
required under Sec.  236.1029(h) will increase initially from 8 hours
per report (without the final rule) to 48 hours per report (with the
final rule), on average. FRA estimates that, over time, railroads will
develop processes that will decrease the reporting burden from 48 hours
per submission to 28 hours per submission. FRA assumes this decrease
will begin in the fourth year of the analysis as host railroads become
more familiar with the Excel-based form and as they develop processes
to improve their data collection and reporting. FRA did not receive any
comments that dispute FRA's assumption that railroads will refine and
expedite their reporting processes over time.
    This analysis accounts for the marginal increase of 40 hours for
the first three years of a host railroad reporting and 20 hours for
each subsequent year, as compared to the 8-hour burden estimate
associated with the existing Sec.  236.1029(h). Table C below shows the
marginal hourly burden increase associated with FRA's expansion of the
reporting requirement under Sec.  236.1029(h), under the final rule.
Consistent with the previously stated estimates, FRA assumes that 35
host railroads will submit these biannual reports in the first year,
and the number of applicable host railroads will increase by 1.5
railroads, on average, each year.
---------------------------------------------------------------------------

    \52\ 1,400 = (35 host railroad submissions x 40 hours) + (0 host
railroad submissions x 20 hours). This calculation is repeated
throughout this table.

                            Table C--Ten-Year Host Railroad Marginal Burden Increase
----------------------------------------------------------------------------------------------------------------
                                                             Number of  host   Number of  host
                                                                railroad          railroad
                           Year                                submissions       submissions     Total marginal
                                                              with marginal     with marginal     hourly burden
                                                             40-hour burden    20-hour burden
----------------------------------------------------------------------------------------------------------------