
[Federal Register: November 13, 2009 (Volume 74, Number 218)]
[Rules and Regulations]               
[Page 58560-58562]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no09-9]                         

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2009-0032; Notice No. 2]
RIN 2130-AC05

 
State Highway-Rail Grade Crossing Action Plans

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

ACTION: Removal of direct final rule provisions.

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SUMMARY: On September 2, 2009, FRA published a direct final rule in the 
Federal Register requiring 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. FRA received 
one adverse comment regarding the direct final rule. Under FRA 
regulations, FRA must withdraw a direct final rule where an adverse 
comment is submitted. FRA issued and submitted a notice of withdrawal 
to the Federal Register; however, due to regulatory production 
schedules and time constraints, the direct final rule was not withdrawn 
before its effective date. As a result, FRA is now publishing this 
removal of the direct final rule provisions, which removes the changes 
effected by the direct final rule. In a separate document publishing 
elsewhere in this issue of the Federal Register, FRA is publishing a 
Notice of Proposed Rulemaking (NPRM).

DATES: This removal of the direct final rule becomes effective on 
November 13, 2009.
    Docket 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

[[Page 58561]]

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).

SUPPLEMENTAL INFORMATION:

I. Withdrawal of Direct Final Rule

    Pursuant to FRA's direct final rulemaking procedures set forth at 
49 CFR 211.33, FRA published a direct final rule in the Federal 
Register on September 2, 2009 (74 FR 45336). FRA received one adverse 
comment regarding the direct final rule. Pursuant to 49 CFR 211.33(d), 
FRA must withdraw a direct final rule where an adverse comment is 
submitted. FRA issued and submitted a notice of withdrawal to the 
Federal Register; however, due to regulatory production schedules and 
time constraints, the direct final rule was not withdrawn before its 
effective date. As a result, FRA is now publishing this removal of the 
direct final rule provisions, which removes the changes effected by the 
direct final rule. In addition, in a separate document, FRA is 
contemporaneously publishing an NPRM in this issue of the Federal 
Register.
    As discussed, this removal returns the regulatory text revised by 
the direct final rule to its formulation prior to the direct final rule 
going into effect. As noted, pursuant to 49 CFR 211.33(d), the direct 
final rule could have been removed with a notice of withdrawal; 
however, due to time constraints, such a notice was not published prior 
to the direct final rule going into effect. Moreover, FRA is 
contemporaneously publishing a proposed rule providing notice and 
comment regarding these same revisions in this issue of the Federal 
Register. Consequently, FRA believes that it is appropriate for this 
removal to become effective on the date of its publication, and that 
notice and comment in this instance is unnecessary.

II. Section-by-Section Analysis

    FRA believes that a section-by-section analysis is not necessary in 
this document. As noted, FRA's direct final rulemaking procedures set 
forth at 49 CFR 211.33 require FRA to withdraw a direct final rule 
where an adverse comment is submitted. In order to comply with these 
procedures, FRA is now publishing this removal in order to return the 
regulatory text revised by the direct final rule to its formulation 
prior to the direct final rule going into effect (November 2, 2009). In 
addition, as noted, FRA is contemporaneously publishing an NPRM in this 
issue of the Federal Register regarding these same provisions.

III. Regulatory Impact and Notices

    FRA likewise believes that a regulatory impact and notices 
discussion is not necessary in this document. Again, in order to comply 
with its direct final rulemaking procedures, FRA is now publishing this 
removal in order to return the regulatory text revised by the direct 
final rule to its formulation prior to the direct final rule going into 
effect (November 2, 2009). Moreover, FRA is contemporaneously 
publishing an NPRM in this issue of the Federal Register, which 
provides notice of the changes originally existing in the direct final 
rule, while also including a complete discussion regarding regulatory 
impact.

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

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; 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 does not restrict a railroad 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.

    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.

    Under 49 U.S.C. 20106 (formerly Sec.  205 of the Federal Railroad 
Safety Act of 1970 (45 U.S.C. 434)), issuance of these regulations 
preempts any State law, rule, regulation, order, or standard covering 
the same subject matter, except a provision directed at an essentially 
local safety hazard that is consistent with this part and that does not 
impose an undue burden on interstate commerce.

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 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,

[[Page 58562]]

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 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)).

Subpart B--Reports

0
7. The heading to Subpart B--Reports and Plans is revised to read as 
set forth above.


Sec.  234.11  [Removed]

0
8. Section 234.11 is removed.

    Issued in Washington, DC, on November 5, 2009.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. E9-27241 Filed 11-12-09; 8:45 am]

BILLING CODE 4910-06-P
