
[Federal Register: September 2, 2009 (Volume 74, Number 169)]
[Rules and Regulations]               
[Page 45336-45343]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02se09-11]                         

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2009-0032; Notice No. 1]
RIN 2130-AC05

 
State Highway-Rail Grade Crossing Action Plans

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

ACTION: Direct final rule.

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SUMMARY: This direct final rule complies with a statutory mandate that 
the Secretary of Transportation (Secretary) issue a rule to require the 
ten States with the most highway-rail grade crossing collisions, on 
average, over the past three years, to develop State highway-rail grade 
crossing action plans. This rule is not intended for general 
application; instead, it only applies to the ten identified States with 
the most highway-rail grade crossing collisions. This rule addresses 
the contents of the highway-rail grade crossing action plans and 
certain time periods for plan implementation and coverage. Interested 
parties may submit written comments or may request an oral hearing on 
this rulemaking during the thirty (30) day period following publication 
of this rule.

DATES: Effective Date: Unless FRA receives a written adverse comment or 
a request for an oral hearing on this direct final rule within the 
specified comment period, the effective date will be November 2, 2009.
    Written Comments: Comments or a request for an oral hearing must be 
received by October 2, 2009.

ADDRESSES: Comments: Comments related to Docket Number FRA-2009-0032, 
may be submitted by any of the following methods:
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Ave., SE., Washington, DC between 9 a.m. 
and 5 p.m. Monday through Friday, except Federal Holidays.
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification

[[Page 45337]]

Number (RIN) for this rulemaking. Note that all comments received will 
be posted without change to http://www.regulations.gov, including any 
personal information. Please see the Privacy Act heading later in this 
document for more Privacy Act information.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time, or to 
room W12-140 on the Ground level of the West Building, 1200 New Jersey 
Ave., SE., Washington, DC between 9 a.m. and 5 p.m. Monday through 
Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Ron Ries, Office of Safety, FRA, 1200 
New Jersey Ave., SE., RRS-23, Mail Stop 25, Washington, DC 20590 
(Telephone 202-493-6299), or Zeb Schorr, Trial Attorney, Office of 
Chief Counsel, FRA, 1200 New Jersey Ave., SE., Mail Stop 10, 
Washington, DC 20590 (Telephone 202-493-6072).

SUPPLEMENTARY INFORMATION:

Background

    This direct final rule is intended to reduce collisions at highway-
rail grade crossings in the ten identified States, and to comply with 
section 202 of the Rail Safety Improvement Act of 2008 (RSIA), Public 
Law 110-432, Division A, which was signed into law on October 16, 2008. 
Section 202 requires the Secretary (delegated to the Federal Railroad 
Administrator by 49 CFR 1.49) to identify the ten States that have had 
the most highway-rail grade crossing collisions, on average, over the 
past three years, and to require those States to develop State highway-
rail grade crossing action plans, within a reasonable period of time, 
as determined by the Secretary. Section 202 further provides that these 
plans must identify specific solutions for improving safety at 
crossings, including highway-rail grade crossing closures or grade 
separations, and must focus on crossings that have experienced multiple 
accidents or are at high risk for such accidents. FRA recommends that 
the action plans include a proposed implementation schedule, although 
FRA recognizes that any such schedule would be subject to many factors, 
including the availability of funds and personnel. In addition, any 
implementation schedule would only be for the purpose of providing 
quality planning for the timelines identified.
    Section 202 also provides the following: the Secretary will provide 
assistance to the States in developing and carrying out such plans, as 
appropriate; the plans may be coordinated with other State or Federal 
planning requirements; the plans will cover a period of time determined 
to be appropriate by the Secretary; and the Secretary may condition the 
awarding of any grants under 49 U.S.C. 20158, 20167, or 22501, to a 
State identified under this section, on the development of such State's 
plan.
    Lastly, section 202 provides a review and approval process under 
which, not later than 60 days after the Secretary receives such a State 
action plan, the Secretary must review and either approve or disapprove 
it. In the event that the proposed plan is disapproved, section 202 
indicates that the Secretary shall notify the affected State as to the 
specific areas in which the proposed plan is deficient, and the State 
shall correct all deficiencies within 30 days following receipt of 
written notice from the Secretary.

State Identification

    As discussed, Congress expressly directed the Secretary to identify 
the ten States that have had the most highway-rail grade crossing 
collisions, on average, over the past three years. FRA maintains a 
database of highway-rail grade crossing accidents/incidents occurring 
at public and private grade crossings, as such events must be reported 
to FRA pursuant to 49 CFR 225.19. From this database, FRA will identify 
the ten States with the most reported highway-rail grade crossing 
accidents/incidents at public and private grade crossings during 2006, 
2007, and 2008. FRA will notify the identified States prior to the 
effective date of this rule. A copy of the notification will be placed 
in the public docket of this proceeding.

Time Period To Develop State Action Plan and Duration of Plan

    Section 202 instructs the Secretary to determine the reasonable 
period of time within which the ten identified States must develop a 
State highway-rail grade crossing action plan and the period of time to 
be covered by such a plan. Based on previous experience working with 
States on highway-rail grade crossing action plans, FRA has determined 
that States can reasonably develop such plans within one year from the 
date this regulation goes into effect, and that such plans should cover 
a period of five years. A five-year period is appropriate because many 
of the remedial actions that may be included in these plans (e.g., 
closures and grade separations) may take up to five years to implement. 
In addition, any identified State that has already developed an action 
plan in conjunction with a recommendation from DOT's Office of 
Inspector General must ensure compliance with this direct final rule 
and resubmit the plan as required by this rule.

Assistance and Coordination

    FRA will be available, including FRA regional grade crossing 
managers and FRA experts from the grade crossing and trespasser 
prevention division, to provide assistance to States in developing and 
carrying out, as appropriate, the State highway-rail grade crossing 
action plans. FRA's Safetydata Web site (http://
www.safetydata.fra.dot.gov) also contains detailed data that may be of 
use in the development of the plans. In addition, the State highway-
rail grade crossing action plans may be coordinated with other State or 
Federal planning requirements. For example, States may want to 
coordinate such plans with their Strategic Highway Safety Plans that 
are required by SAFETEA-LU, as appropriate.

Conditioning the Awarding of Grants

    Section 202 also empowers the Secretary to condition the awarding 
of any grants under 49 U.S.C. 20158, 20167, or 22501, to an identified 
State under this section on the development of such State's plan. 
Although FRA does not anticipate employing this authority, FRA reserves 
its right to pursue such a course of action in the event that an 
identified State fails to comply with this direct final rule.

Section-by-Section Analysis

    Section 234.1. This paragraph discusses the scope of this part. An 
amendment is made to this paragraph to include reference to Sec.  
234.11, State Highway-Rail Grade Crossing Action Plans, as being within 
this part's scope.
    Section 234.3. This paragraph discusses what entities are subject 
to this part. An amendment is made to this paragraph excepting Sec.  
234.11, State Highway-Rail Grade Crossing Action Plans, from discussion 
in this section.
    Section 234.4. This paragraph discusses the preemptive effect of 
this part. An amendment is made to this paragraph permitting State tort 
actions, arising from events or activities occurring on or after 
January 18, 2002, that: Allege a violation of the Federal standard of 
care established by this part; allege a failure to comply with a 
party's own plan, rule, or standard created pursuant to this part; or 
allege a violation of a State law, regulation, or order that is 
necessary to eliminate or reduce an essentially local safety or 
security hazard, is not incompatible

[[Page 45338]]

with a law, regulation, or order of the United States Government, and 
does not unreasonably burden interstate commerce.
    Section 234.6(a) and (b). These paragraphs discuss the civil and 
criminal penalties a person may be subject to when violating 
requirements of this part. An amendment is made to these paragraphs 
providing that a violation of Sec.  234.11, State Highway-Rail Grade 
Crossing Action Plans, will not give rise to either a civil or criminal 
penalty.
    Section 234.11(a). This paragraph discusses that the purpose of 
this direct final rule is to reduce collisions at highway-rail grade 
crossings in the ten identified States that have had the most highway-
rail grade crossing collisions, on average, over the past three years. 
This paragraph makes clear that the regulation does not restrict any 
other State, or other entity, from adopting a highway-rail grade 
crossing action plan, nor does it restrict any of the identified States 
from adopting a plan with additional or more stringent requirements not 
inconsistent with this regulation.
    Section 234.11(b). This paragraph indicates that this section 
applies to the ten States that have had the most highway-rail grade 
crossing collisions, on average, during the calendar years 2006, 2007, 
and 2008, and that FRA will notify these ten States prior to the 
effective date of this direct final rule.
    Section 234.11(c). This paragraph requires the ten identified 
States to develop a State highway-rail grade crossing action plan and 
to submit such plans to FRA for review and approval not later than one 
year after the date this regulation goes into effect. This paragraph 
also details the requirements of the State highway-rail grade crossing 
action plans, including that the plans: Identify specific solutions for 
improving safety at crossings, including highway-rail grade crossing 
closures or grade separations; focus on crossings that have experienced 
multiple accidents or are at high risk for such accidents; and cover a 
five-year period.
    Section 234.11(d). This paragraph identifies the FRA contact 
information to which the identified States must direct the highway-rail 
grade crossing action plans for review and approval. This paragraph 
also provides that FRA will review and approve or disapprove a State 
highway-rail grade crossing action plan within 60 days of receiving the 
plan. This paragraph further states that, if the proposed State 
highway-rail grade crossing action plan is disapproved, FRA will notify 
the affected State as to the specific areas in which the proposed plan 
is deficient, and the State must correct all deficiencies within 30 
days following receipt of written notice from FRA. Lastly, this 
paragraph provides that FRA may condition the awarding of any grants 
under 49 U.S.C. 20158, 20167, or 22501 to an identified State on the 
development of that State's highway-rail grade crossing action plan.

Notice-and-Comment Procedures

    FRA has determined that this regulation is non-controversial as it 
complies with a statutory mandate that the Secretary issue a rule to 
require the ten States with the most highway-rail grade crossing 
collisions, on average, over the past three years, to develop State 
highway-rail grade crossing action plans. While FRA does not anticipate 
any adverse comment, interested parties may submit written comments or 
request an oral hearing during the thirty (30) day period immediately 
following publication of this direct final rule.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This discussion represents the regulatory impact analysis (RIA). 
There is not a separate RIA for inclusion in the public docket. This 
direct final rule has been evaluated in accordance with Executive Order 
12866 and DOT policies and procedures. The ten States identified will 
incur the full burden associated with implementation of this direct 
final rule. The estimated quantified compliance cost for these ten 
States is approximately $271,000 over the next year. The benefits 
resulting from the prevention of collisions at highway-rail grade 
crossings are expected to exceed the burden and thus fully justify 
issuance of this rule. This analysis includes a quantitative burden 
measurement and a qualitative benefit discussion for this direct final 
rule.
    The primary burden imposed will be for State labor resources spent 
to comply with development of the mandated action plans. FRA estimates 
that, on the average, each State will assign the plan development 
responsibilities to a team composed of a program manager, a project 
engineer, a budget analyst, a business specialist, and a legal expert. 
Listed in Table A are the aggregate salary estimates and man-year 
allocations for the entire mandated population.

                                       Table A--Aggregated Plan Submission
----------------------------------------------------------------------------------------------------------------
                    Position                          Salary        Hourly rate     Labor hours      Estimate
----------------------------------------------------------------------------------------------------------------
Program Manager, Transportation.................      $88,000.00          $42.31              40       $2,961.54
Project Engineer................................       72,000.00           34.62              80        4,846.15
Budget Analyst..................................       55,000.00           26.44              40        1,850.96
Business Specialist, Transportation.............       45,000.00           21.63             400       15,144.23
Legal Expert....................................       69,000.00           33.17              40        2,322.12
                                                 ---------------------------------------------------------------
                                                  ..............  ..............  ..............       27,125.00
----------------------------------------------------------------------------------------------------------------

    The estimated cost is found as the product of the hourly rate, the 
labor hours, and an estimated overhead rate. Overhead is considered at 
75% of the hourly rate. Example Calculation: [($42.31 per hour) * (40 
hours) * (1 + .75 (overhead rate))] = $2,961.54.
    The submission process calls for FRA to review and approve each 
submitted plan according to the Federal mandate. FRA anticipates that 
the review time for each of the initial submissions to be 6 hours per 
plan. Listed in Table B is the aggregated Federal burden for the 
initial and resubmitted plans.

[[Page 45339]]



                                       Table B--Federal Compliance Summary
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                         Tasking                              States    Labor hours      Rate        Estimate
----------------------------------------------------------------------------------------------------------------
Plan Submission Review...................................           10            6       $52.50       $5,512.50
                                                          ------------------------------------------------------
                                                           ...........  ...........  ...........        5,512.50
----------------------------------------------------------------------------------------------------------------

    To summarize quantitatively, the State burden imposed from this 
rule was derived from the estimated sum of the original burden 
submission from the ten identified States and the burden resubmission 
from the quantum that did not comply during the initial resubmission. 
FRA considers $271,000 to represent the aggregated State burden for the 
one year period of this requirement. Listed in Table C is the 
aggregated burden summary.

                                       Table C--Aggregated Burden Summary
----------------------------------------------------------------------------------------------------------------
                                                                                                       Total
                                                                     Estimate        Quantity        estimates
----------------------------------------------------------------------------------------------------------------
State Submission Burden.........................................      $27,125.00              10     $271,250.00
                                                                 -----------------------------------------------
                                                                  ..............  ..............      271,250.00
----------------------------------------------------------------------------------------------------------------

    The development of State highway-rail grade crossing action plans 
should result in a reduction in highway-rail grade crossing safety 
collisions. Development of such plans will enhance these States' 
ability to view their population of grade crossings, interpret 
historical accident information, evaluate the overall state of highway-
rail grade crossing safety, and identify particular areas in need of 
attention. Any patterns of collisions or causal factors will become 
more readily apparent as a result of the detailed study, assessment, 
and status reporting involved in the development of the State action 
plan. In these plans, each State will identify specific solutions for 
improving safety at individual crossings, including crossing closures 
or grade separations, with special focus on those crossings that are 
found to have experienced multiple accidents or that show a heightened 
risk for accidents. Special emphasis corridors of high risk corridors 
may also be identified as a result of the analysis component of the 
State action plan. As each State's highway-rail grade crossing action 
plan may be coordinated with other State or Federal planning 
requirements, additional benefits may be obtained through closer 
integration of grade crossing safety issues into the overall State 
transportation safety planning efforts.
    During the three-year time period, 2006 through 2008, the ten 
States with the most grade crossing collisions, as currently reported, 
accounted for 51%, or almost 4,200 accidents, of all grade crossing 
collisions nationwide. Highway vehicle damage accounted for more than 
$28.5 million over this three-year time period, and a combined total of 
546 lives were lost. Economic research indicates that $6.0 million per 
statistical life saved is a reasonable estimate of people's willingness 
to pay for transportation safety improvements. FRA therefore estimates 
an accumulated $3.28 billion to represent the statistical value of the 
lives lost as a result of grade crossing collisions in these ten 
States. Finally, there were 1,666 injuries over the three-year time 
period in these ten States. Assuming very conservatively, for purposes 
of this analysis, that these were all minor in nature (e.g., injuries 
that may not require professional medical treatment and where recovery 
is usually rapid and complete) and thus assigning a cost of $12,000 per 
injury (i.e., 0.2% of the value of a statistical life), injury costs 
for this period totaled close to $20 million. Thus, the cost to society 
of the average incident in the three-year time period was $792,000. 
Prevention of one such incident alone would more than exceed the cost 
of implementing this rule. FRA believes that it is reasonable to expect 
that such an incident may be prevented by implementing this rule. In 
addition to the safety benefits, other potential benefits would 
include: Increased train and highway traffic mobility by not having 
collisions, fewer demands on emergency services by not having to 
respond to crossing collisions, and some improvement in air quality by 
reducing emissions from vehicles that are unable to move due to 
crossing collisions.
    The findings of this analysis are sensitive to its assumptions. The 
burden estimates are largely driven by the composition of the team and 
the level of effort expended by each individual. Such factors may vary 
from team to team. FRA realizes that the level of expertise per state, 
per team, per member, will vary and, therefore, has applied a 20 
percent sensitivity factor above and below the baseline as follows:

                                Table D--Aggregated Sensitivity Analysis Summary
----------------------------------------------------------------------------------------------------------------
                                                                     Estimate           Low            High
----------------------------------------------------------------------------------------------------------------
Aggregated Submission Burden....................................     $271,250.00     $217,000.00     $325,500.00
----------------------------------------------------------------------------------------------------------------

    Thus, when defining the projected cost burden to the individual 
States within the framework of team complexion and with regard to the 
estimated sensitivity of the individual expertise of the employee 
selected, FRA finds that it is reasonable to estimate that the burden 
could range from $22,000 to $33,000 per State. FRA finds that the total 
cost burden ranges from $217,000 to $326,000.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review

[[Page 45340]]

of proposed and final rules to assess their impact on small entities, 
unless the Secretary certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Pursuant to section 312 of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), FRA has issued a final policy 
that formally establishes ``small entities'' as including railroads 
that meet the line-haulage revenue requirements of a Class III 
railroad. 49 CFR part 209, app. C. For other entities, the same dollar 
limit in revenues governs whether a railroad, contractor, or other 
respondent is a small entity. Id. Additionally, section 601(5) defines 
as ``small entities'' governments of cities, counties, towns, 
townships, villages, school districts, or special districts with 
populations less than 50,000. Such governments would not be directly 
impacted by this direct final rule.
    FRA certifies that this direct final rule will not have a 
significant economic impact on a substantial number of small entities, 
as this rule only affects ten identified States. To the extent that 
this rule has any impact on small entities, the impact will not be 
significant.

Paperwork Reduction Act

    The information collection requirements in this direct final rule 
have been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The section that contains the new information collection requirements 
is noted below, and the estimated burden times to fulfill each 
requirement are as follows:

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                                                         Total annual      Average time per      Total annual
          CFR section            Respondent universe       responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
234.11--State Highway-Rail       10 States..........  10 plans..........  600 hours.........  6,000 hours.
 Grade Crossing Action Plans--
 Development and Submission of
 Plans.
--Disapproval of State Highway-  10 States..........  5 revised plans...  80 hours..........  400 hours.
 Rail Grade Crossing Action
 Plan and Submission of Revised
 Plan.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via e-mail to the Office of Management and Budget at the following 
address: oira_submissions@omb.eop.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this direct final rule between 30 
and 60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of this direct final 
rule. The OMB control number, when assigned, will be announced by 
separate notice in the Federal Register.

Environmental Impact

    FRA has evaluated this direct final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this document is not a major FRA action (requiring the 
preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
64 FR 28545, 28547, May 26, 1999. In accordance with section 4(c) and 
(e) of FRA's Procedures, the agency has further concluded that no 
extraordinary circumstances exist with respect to this direct final 
rule that might trigger the need for a more detailed environmental 
review. As a result, FRA finds that this direct final rule is not a 
major Federal action significantly affecting the quality of the human 
environment.

Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 4, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or the agency consults with State and local government 
officials early in the process of developing the regulation. Where a 
regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    This direct final rule amends FRA's regulations regarding grade 
crossing safety. Subject to a limited exception for essentially local 
safety or security hazards, the requirements of FRA's regulations 
regarding grade crossing safety are intended to establish a uniform 
Federal safety standard that must be met, and State requirements 
covering the same subject would be displaced, whether those standards 
are in the form of State statutes, regulations, local ordinances, or 
other forms of State law, including common law. Section 20106 of Title 
49 of the United States Code provides that all regulations prescribed 
by the Secretary related to railroad safety preempt any State law, 
regulation, or order covering the same subject matter, except a 
provision necessary to eliminate or reduce an essentially local safety 
or security hazard that is not incompatible with a Federal law, 
regulation, or order, and that does not unreasonably burden interstate 
commerce. This is consistent with past practice at FRA, and within the 
Department of Transportation.

[[Page 45341]]

    FRA has analyzed this direct final rule in accordance with the 
principles and criteria contained in Executive Order 13132. This direct 
final rule complies with a statutory mandate. FRA has not consulted 
with State and local officials in regards to this rule. However, prior 
to enactment of the RSIA, FRA did consult with State officials in 
conjunction with a recommendation from DOT's Office of Inspector 
General that certain States develop highway-rail grade crossing action 
plans, similar to the plans required by the RSIA and this rule. Thus, 
FRA believes it is in compliance with Executive Order 13132.
    This direct final rule will not have a substantial effect on the 
States, on the relationship between the Federal government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. In addition, this direct final rule will 
not have any federalism implications that impose substantial direct 
compliance costs on State and local governments.
    FRA's regulations regarding grade crossing safety do not preempt 
actions under State law seeking damages for personal injury, death, or 
property damage alleging that a party has failed to comply with the 
Federal standard of care established by this part. Provisions of a 
railroad maintenance, inspection and testing program which exceed the 
requirements of this part are not included in the Federal standard of 
care. It is strongly in the interest of railroad safety for railroads 
to exceed the requirements of Federal law and FRA encourages railroads 
to do so. A railroad would be discouraged from setting a higher 
standard for itself if it would be held liable in tort for exceeding 
the requirements of Federal law, but failing to attain the higher 
standard set for itself. Section 20106 of Title 49 of the United States 
Code supports this distinction.
    It is a settled principle of statutory construction that, if the 
statute is clear and unambiguous, it must be applied according to its 
terms. Carcieri v. Salazar, 555 U.S.--(2009). Read by itself, Section 
20106(a) of Title 49 of the United States Code preempts state standards 
of care, but does not expressly state whether anything replaces the 
preempted standards of care for purposes of tort suits. The focus of 
that provision is clearly on who regulates railroad safety: the Federal 
government or the states. It is about improving railroad safety, for 
which Congress deems nationally uniform standards to be necessary in 
the great majority of cases. That purpose has collateral consequences 
for tort law which new Section 20106 subsections (b) and (c) address. 
New subsection (b)(1) creates three exceptions to the possible 
consequences flowing from subsection (a). One of those exceptions 
((b)(1)(B)) precisely addresses an issue presented in Lundeen v. 
Canadian Pacific Ry. Co., 507 F. Supp. 2d 1006 (D.Minn., 2007) that 
Congress wished to rectify: it allows plaintiffs to sue a railroad in 
tort for violation of its own plan, rule, or standard that it created 
pursuant to a regulation or order issued by either of the Secretaries. 
None of those exceptions covers a plan, rule, or standard that a 
regulated entity creates for itself in order to produce a higher level 
of safety than Federal law requires, and such plans, rules, or 
standards were not at issue in Lundeen. The key concept of section 
20106(b) is permitting actions under State law seeking damages for 
personal injury, death, or property damage to proceed using a Federal 
standard of care. A plan, rule, or standard that a regulated entity 
creates pursuant to a Federal regulation logically fits the paradigm of 
a Federal standard of care--Federal law requires it and determines its 
adequacy. A plan, rule, or standard, or portions of one, that a 
regulated entity creates on its own in order to exceed the requirements 
of Federal law does not fit the paradigm of a Federal standard of 
care--Federal law does not require it and, past the point at which the 
requirements of Federal law are satisfied, says nothing about its 
adequacy. That is why FRA believes section 20106(b)(1)(B) covers the 
former, but not the latter. The basic purpose of the statute--improving 
railroad safety--is best served by encouraging regulated entities to do 
more than the law requires and would be disserved by increasing the 
potential tort liability of regulated entities that choose to exceed 
federal standards, which would discourage them from ever exceeding 
federal standards again.
    In this manner, Congress adroitly preserved its policy of national 
uniformity of railroad safety regulation expressed in Section 
20106(a)(1) and assured plaintiffs in tort cases involving railroads, 
such as Lundeen, of their ability to pursue their cases by clarifying 
that federal railroad safety regulations preempt the standard of care, 
not the underlying causes of action in tort. Under this interpretation, 
all parts of the statute are given meanings that work together 
effectively and serve the safety purposes of the statute.

Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $141,300,000 or more in any one 
year, and before promulgating any final rule for which a general notice 
of proposed rulemaking was published, the agency shall prepare a 
written statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This direct final rule will not 
result in the expenditure, in the aggregate, of $141,300,000 or more in 
any one year, and thus preparation of such a statement is not required.

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking that: (1)(i) Is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) is designated by the Administrator of the Office 
of Information and Regulatory Affairs as a significant energy action. 
FRA has evaluated this direct final rule in accordance with Executive 
Order 13211. FRA has determined that this direct final rule will not 
have a significant adverse effect on the supply, distribution, or use 
of energy. Consequently, FRA has determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.

Privacy Act Information

    Interested parties should be aware that anyone is able to search 
the electronic form of all comments received into any agency docket by 
the

[[Page 45342]]

name of the individual submitting the comment (or signing the comment, 
if submitted on behalf of an association, business, labor union, etc.). 
You may review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (Volume 65, Number 70; Pages 
19477-78), or you may visit http://www.regulations.gov.

List of Subjects in 49 CFR Part 234

    Highway safety; Penalties; Railroad safety; and Reporting and 
recordkeeping requirements.

The Rule

0
In consideration of the foregoing, FRA amends part 234 of chapter II, 
subtitle B of title 49, Code of Federal Regulations, as follows:

PART 234--GRADE CROSSING SIGNAL SYSTEM SAFETY AND STATE ACTION 
PLANS

0
1. The authority citation for part 234 is revised to read as follows:

    Authority:  49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; Public 
Law No. 110-432, Div. A, section 202; and 49 CFR 1.49.


0
2. The heading for part 234 is revised to read as set forth above.

0
3. Section 234.1 is revised to read as follows:


Sec.  234.1  Scope.

    This part imposes minimum maintenance, inspection, and testing 
standards for highway-rail grade crossing warning systems. This part 
also prescribes standards for the reporting of failures of such systems 
and prescribes minimum actions railroads must take when such warning 
systems malfunction. This part also requires particular identified 
States to develop State highway-rail grade crossing action plans. This 
part does not restrict a railroad or a State from adopting and 
enforcing additional or more stringent requirements not inconsistent 
with this part.

0
4. Section 234.3 is revised to read as follows:


Sec.  234.3  Application.

    With the exception of Sec.  234.11, this part applies to all 
railroads except:
    (a) A railroad that exclusively operates freight trains only on 
track which is not part of the general railroad system of 
transportation;
    (b) Rapid transit operations within an urban area that are not 
connected to the general railroad system of transportation; and
    (c) A railroad that operates passenger trains only on track inside 
an installation that is insular; i.e., its operations are limited to a 
separate enclave in such a way that there is no reasonable expectation 
that the safety of the public--except a business guest, a licensee of 
the railroad or an affiliated entity, or a trespasser--would be 
affected by the operation. An operation will not be considered insular 
if one or more of the following exists on its line:

(1) A public highway-rail crossing that is in use;
(2) An at-grade rail crossing that is in use;
(3) A bridge over a public road or waters used for commercial 
navigation; or
(4) A common corridor with a railroad, i.e., its operations are within 
30 feet of those of any railroad.

0
5. Section 234.4 is revised to read as follows:


Sec.  234.4  Preemptive effect.

    (a) Under 49 U.S.C. 20106, issuance of these regulations preempts 
any State law, regulation, or order covering the same subject matter, 
except an additional or more stringent law, regulation, or order that 
is necessary to eliminate or reduce an essentially local safety hazard; 
is not incompatible with a law, regulation, or order of the United 
States Government; and that does not impose an unreasonable burden on 
interstate commerce.
    (b) This part establishes a Federal standard of care for the 
maintenance, inspection and testing of grade crossing warning systems. 
This part does not preempt an action under State law seeking damages 
for personal injury, death, or property damage alleging that a party 
has failed to comply with the Federal standard of care established by 
this part. Provisions of a railroad maintenance, inspection and testing 
program which exceed the requirements of this part are not included in 
the Federal standard of care.

0
6. Section 234.6 is revised to read as follows:


Sec.  234.6  Penalties.

    (a) Civil Penalty. Any person (an entity of any type covered under 
1 U.S.C. 1, including but not limited to the following: A railroad; a 
manager, supervisor, official, or other employee or agent of a 
railroad; any owner, manufacturer, lessor, or lessee of railroad 
equipment, track, or facilities; any independent contractor providing 
goods or services to a railroad; and any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor) who violates 
any requirement of this part, except for any violation of Sec.  234.11, 
or causes the violation of any such requirement is subject to a civil 
penalty of at least $650, but not more than $25,000 per violation, 
except that: penalties may be assessed against individuals only for 
willful violations, and where a grossly negligent violation or a 
pattern of repeated violations has created an imminent hazard of death 
or injury to persons, or has caused death or injury, a penalty not to 
exceed $100,000 per violation may be assessed. Each day a violation 
continues shall constitute a separate offense. Appendix A to this part 
contains a schedule of civil penalty amounts used in connection with 
this rule. The railroad is not responsible for compliance with respect 
to any condition inconsistent with the technical standards set forth in 
this part where such variance arises as a result of actions beyond the 
control of the railroad and the railroad could not have prevented the 
variance through the exercise of due diligence. The foregoing sentence 
does not excuse any instance of noncompliance resulting from the 
actions of the railroad's employees, agents, or contractors.
    (b) Criminal Penalty. Whoever knowingly and willfully makes, causes 
to be made, or participates in the making of a false entry in reports 
required to be filed by this part, or files a false report or other 
document required to be filed by this part, except for any document 
filed pursuant to Sec.  234.11, is subject to a $5,000 fine and 2 years 
imprisonment as prescribed by 49 U.S.C. 522(a) and section 209(e) of 
the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 438(e)).

0
7. The heading for Subpart B is revised to read as follows:

Subpart B--Reports and Plans

0
8. Subpart B of part 234 is amended by adding Sec.  234.11 to read as 
follows:


Sec.  234.11  State Highway-Rail Grade Crossing Action Plans.

    (a) Purpose. The purpose of this section is to reduce collisions at 
highway-rail grade crossings in the ten States that have had the most 
highway-rail grade crossing collisions, on average, during the calendar 
years 2006, 2007, and 2008. This section does not restrict any other 
State, or other entity, from adopting a highway-rail grade crossing 
action plan. This section also does not restrict any of the States 
required to develop action plans under this section from adopting a 
highway-rail grade crossing action plan with additional or more 
stringent requirements not inconsistent with this section.

[[Page 45343]]

    (b) Application. This section applies to the ten States that have 
had the most highway-rail grade crossing collisions, on average, during 
the calendar years 2006, 2007, and 2008. FRA will notify these ten 
States prior to November 2, 2009.
    (c) Action Plans. (1) The ten identified States shall each develop 
a State highway-rail grade crossing action plan and submit such a plan 
to FRA for review and approval not later than November 2, 2010.
    (2) A State highway-rail grade crossing action plan shall:
    (i) Identify specific solutions for improving safety at crossings, 
including highway-rail grade crossing closures or grade separations;
    (ii) Focus on crossings that have experienced multiple accidents or 
are at high risk for such accidents; and
    (iii) Cover a five-year time period.
    (d) Review and Approval. (1) State highway-rail grade crossing 
action plans required under paragraph (c) of this section shall be 
submitted for FRA review and approval using at least one of the 
following methods: mail to the Associate Administrator for Railroad 
Safety/Chief Safety Officer, U.S. Department of Transportation, Federal 
Railroad Administration, 1200 New Jersey Ave., SE., W12-140, 
Washington, DC 20590; or e-mail to rrs.correspondence@fra.dot.gov.
    (2) FRA will review and approve or disapprove a State highway-rail 
grade crossing action plan submitted pursuant to paragraph (d) of this 
section within 60 days of receipt.
    (3) If the proposed State highway-rail grade crossing action plan 
is disapproved, FRA will notify the affected State as to the specific 
areas in which the proposed plan is deficient. A State shall correct 
all deficiencies within 30 days following receipt of written notice 
from FRA.
    (4) FRA may condition the awarding of any grants under 49 U.S.C. 
20158, 20167, or 22501 to an identified State on the development of 
such State's highway-rail grade crossing action plan.

    Issued in Washington, DC, on August 27, 2009.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. E9-21089 Filed 9-1-09; 8:45 am]

BILLING CODE 4910-06-P
