
[Federal Register: November 13, 2009 (Volume 74, Number 218)]
[Proposed Rules]               
[Page 58589-58596]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no09-23]                         

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2009-0032; Notice No. 3]
RIN 2130-AC20

 
State Highway-Rail Grade Crossing Action Plans

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

ACTION: Notice of proposed rulemaking (NPRM).

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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

[[Page 58590]]

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. As a result, in a separate document elsewhere in this issue 
of the Federal Register, FRA is publishing a removal of the direct 
final rule provisions, which removes the changes effected by the direct 
final rule. FRA is also contemporaneously publishing this NPRM. The 
NPRM 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 proposed rule is not intended for general application; 
instead, it would only apply to the ten identified States with the most 
highway-rail grade crossing collisions over the specified period of 
time. The proposed rule addresses the contents of the highway-rail 
grade crossing action plans and certain time periods for plan 
implementation and coverage.

DATES: Written Comments: Written comments on the proposed rule must be 
received by December 14, 2009. Comments received after that date will 
be considered to the extent possible without incurring additional 
expense or delay.
    Public Hearing: If any person desires an opportunity for oral 
comment, he or she should notify FRA in writing and specify the basis 
for the request. FRA will schedule a public hearing in connection with 
this proceeding if the agency received a written request for a hearing 
by December 14, 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 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:

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 publishing a removal of the direct 
final rule provisions in this issue of the Federal Register, which 
removes the changes effected by the direct final rule, while 
contemporaneously publishing this NPRM.

II. Notice of Proposed Rulemaking

A. Background

    The proposed 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.

B. 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 has 
identified the ten States with the most reported highway-rail grade 
crossing accidents/incidents at public and private grade crossings 
during 2006, 2007, and 2008, to be, as follows: Alabama, California, 
Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio,

[[Page 58591]]

and Texas. FRA will issue letters to these identified States and copies 
of such letters will be placed in the public docket of this proceeding.

C. 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 any final rule arising 
from this NPRM and must resubmit the plan as required.

D. Assistance and Coordination

    FRA would 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 proposed 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 proposed 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.

E. 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 a final rule that arises from 
this proposed rule.

F. Section-by-Section Analysis

    Section 234.1. This paragraph discusses the scope of this part. The 
amendment proposed to this paragraph would 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. The amendment proposed to this paragraph would except 
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. The amendment proposed to this paragraph would permit 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 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. The amendment proposed to these paragraphs 
would provide that a violation of Sec.  234.11, State Highway-Rail 
Grade Crossing Action Plans, would not give rise to either a civil or 
criminal penalty.
    Section 234.11(a). This paragraph discusses that the purpose of 
this proposed 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 proposes to make clear that the regulation would not 
restrict any other State, or other entity, from adopting a highway-rail 
grade crossing action plan, nor would 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 proposes that this section would 
apply to the ten States that have had the most highway-rail grade 
crossing collisions, on average, during the calendar years 2006, 2007, 
and 2008.
    Section 234.11(c). This paragraph proposes to require that each of 
the ten identified States develop a State highway-rail grade crossing 
action plan and submit such plans to FRA for review and approval not 
later than one year after the date this proposed regulation goes into 
effect. This paragraph also details the proposed 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 proposed 
highway-rail grade crossing action plans for review and approval. This 
paragraph also proposes that FRA would review and approve or disapprove 
a State highway-rail grade crossing action plan within 60 days of 
receiving the plan. This paragraph further proposes that, if the 
proposed State highway-rail grade crossing action plan is disapproved, 
FRA would notify the affected State as to the specific areas in which 
the proposed plan is deficient, and the State would have to correct all 
deficiencies within 30 days following receipt of written notice from 
FRA. Lastly, this paragraph proposes 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.

G. Regulatory Impact and Notices

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 
NPRM has been evaluated in accordance with existing policies and 
procedures, and has been determined not to be significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034; 
Feb. 26, 1979). The ten States identified are Alabama, California, 
Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas. 
These ten States would incur the full burden associated with 
implementation of this NPRM. The estimated quantified compliance cost 
for these ten States is approximately $259,000 over the next year. The 
benefits resulting from the prevention of collisions at highway-rail 
grade crossings are expected to exceed the burden. This analysis 
includes a quantitative burden measurement and a

[[Page 58592]]

qualitative benefit discussion for this NPRM. FRA requests comments on 
this economic analysis and its underlying assumptions.
    The primary burden imposed would be for State labor resources spent 
to comply with development of the mandated action plans. FRA estimates 
that, on the average, each State would 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 Salary Summary of the 10 Identified States
----------------------------------------------------------------------------------------------------------------
                    Position                          Salary        Hourly rate     Labor hours      Estimate
----------------------------------------------------------------------------------------------------------------
Program Manager, Transportation.................      $83,000.00          $39.90              40       $2,793.27
Project Engineer................................       69,000.00           33.17              80        4,644.23
Budget Analyst..................................       52,000.00           25.00              40        1,750.00
Business Specialist, Transportation.............       43,000.00           20.67             400       14,471.15
Legal Expert....................................       68,000.00           32.69              40        2,288.46
                                                 ---------------------------------------------------------------
                                                                                                       25,947.12
----------------------------------------------------------------------------------------------------------------

    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: [($39.90 per hour) * (40 
hours) * (1 + .75 (overhead rate))] = $2,793.27.
    The proposed 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 would be 6 
hours per plan. Listed in Table B is the aggregated federal burden for 
the initial and resubmitted plans.

                                       Table B--Federal Compliance Summary
----------------------------------------------------------------------------------------------------------------
                     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 that would be imposed 
by this proposed 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 may not comply during the 
initial submission. FRA considers $259,000 to represent the aggregated 
State burden for the one-year period of this proposed requirement. 
Listed in Table C is the aggregated burden summary.

                                       Table C--Aggregated Burden Summary
----------------------------------------------------------------------------------------------------------------
                                                                                                       Total
                                                                     Estimate        Quantity        estimates
----------------------------------------------------------------------------------------------------------------
State Submission Burden.........................................      $25,947.12              10     $259,471.15
                                                                 -----------------------------------------------
                                                                                                      259,471.15
----------------------------------------------------------------------------------------------------------------

    The development of State highway-rail grade crossing action plans 
would likely result in a reduction in highway-rail grade crossing 
collisions. Development of such plans would 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 would 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 would 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 or 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.

[[Page 58593]]

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 $796,000. 
Prevention of one such incident alone would more than exceed the cost 
of implementing this proposed rule. FRA believes that it is reasonable 
to expect that such an incident may be prevented by the implementation 
of this proposed rule. In addition to the safety benefits, other 
potential benefits would include: Increased train and highway traffic 
mobility by reducing collisions, fewer demands on emergency services 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 State's 
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, would 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.................................     $259,471.15      $207,576.92      $311,365.38
----------------------------------------------------------------------------------------------------------------

    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 $20,800 to $31,100 per State. FRA finds that the total 
cost burden ranges from $208,000 to $311,000.
Regulatory Flexibility Act
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of proposed and final rules to assess their impact on 
small entities, unless the Secretary certifies that the rule would 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 proposal.
    FRA certifies that this proposal would 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 proposal 
would have any impact on small entities, FRA believes the impact would 
not be significant. FRA requests comments regarding this analysis.
Paperwork Reduction Act
    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) for review and approval in accordance with the Paperwork 
Reduction Act of 1995, 44 U.S.C. 3501 et seq. The section that contains 
the new information collection requirements is noted below, and the 
estimated burden times to fulfill each requirement are as follows:


----------------------------------------------------------------------------------------------------------------
                                                                                   Average time
            CFR section              Respondent  universe       Total annual       per response    Total annual
                                                                 responses            (hours)      burden hours
----------------------------------------------------------------------------------------------------------------
234.11--State Highway-Rail Grade    10 States............  10 plans.............             600           6,000
 Crossing Action Plans--
 Development and Submission of
 Plans.
Disapproval of State Highway-Rail   10 States............  5 revised plans......              80             400
 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. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at 
202-493-6073.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New 
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following 
address: robert.brogan@dot.gov; nakia.jackson@dot.gov.
    OMB is required to make a decision concerning the collection of 
information

[[Page 58594]]

requirements contained in this proposed 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. The final rule will respond 
to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.
Environmental Impact
    FRA has evaluated this NPRM 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 NPRM that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this NPRM 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 NPRM 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.
    FRA has analyzed this NPRM in accordance with the principles and 
criteria contained in Executive Order 13132. This NPRM 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 NPRM 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 NPRM 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 provides for an FRA 
rule, order or regulation to preempt 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 Sec.  20106(b) is permitting actions under 
State law seeking

[[Page 58595]]

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 NPRM 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 NPRM in accordance with Executive Order 13211. 
FRA has determined that this NPRM 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 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 Proposal

    In consideration of the foregoing, FRA proposes to amend 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

    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 110-432, Div. A, Sec.  202; and 49 CFR 1.49.

    2. The heading for part 234 is revised to read as set forth above.
    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.
    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.
    5. Section 234.4 is revised to read as follows:

[[Page 58596]]

Sec.  234.4  Preemptive effect.

    (a) Under 49 U.S.C. 20106, issuance of these regulations preempts 
any State law, regulation, 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.
    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 
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, 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 of 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 and Plans

    7. The title to Subpart B--Reports is revised to read as set forth 
above.
    8. Section 234.11 is added 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.
    (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.
    (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 [DATE 1 YEAR FROM 
EFFECTIVE DATE OF FINAL RULE].
    (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 November 5, 2009.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. E9-27242 Filed 11-12-09; 8:45 am]

BILLING CODE 4910-06-P
