
[Federal Register: June 28, 2010 (Volume 75, Number 123)]
[Rules and Regulations]               
[Page 36551-36559]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jn10-12]                         


[[Page 36551]]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2009-0032; Notice No. 5]
RIN 2130-AC20

 
State Highway-Rail Grade Crossing Action Plans

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

ACTION: Final rule.

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SUMMARY: This 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. The final rule addresses the development, 
review, and approval of these highway-rail grade crossing action plans. 
This final rule also removes the preemption provision of this 
regulation.

DATES: This final rule is effective August 27, 2010.

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. Proceedings to Date

    Pursuant to FRA's direct final rulemaking procedures set forth at 
49 CFR 211.33, FRA first published the State Highway-Rail Grade 
Crossing Action Plans as 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 
withdrew the direct final rule and issued 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time constraints, the direct final rule was not withdrawn before its 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, on November 13, 2009, FRA published a 
removal of the direct final rule provisions in the Federal Register, 
which removed the changes effected by the direct final rule, and 
contemporaneously published a notice of proposed rulemaking (NPRM).
    Subsequent to the publication of the NPRM, FRA received written 
requests for a public hearing. FRA held a public hearing in Washington, 
DC on February 22, 2010, and extended the comment period for an 
additional fourteen (14) days following the hearing, up to and 
including March 8, 2010. The hearing enabled the exchange of 
information regarding FRA's proposed amendments, and allowed the public 
to articulate their issues and concerns regarding the NPRM. FRA 
received oral and written testimony at the hearing as well as written 
comments during the extended comment period. A copy of the hearing 
transcript was placed in Docket No. FRA-2009-0032, which is available 
at http://www.regulations.gov.
    When developing this final rule, FRA carefully considered all of 
the comments, information, data, and proposals submitted to Docket No. 
FRA-2009-0032 and discussed during the hearing. In addition, FRA's 
extensive knowledge and experience was relied upon when developing this 
final rule. FRA addresses the comments in the section-by-section 
analysis and elsewhere as appropriate.

II. Background

    This final rule is intended to comply with section 202 of the Rail 
Safety Improvement Act of 2008 (RSIA08), 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.

a. Comments--In General

    FRA received a number of comments of a personal nature about 
highway-rail grade crossing safety. FRA greatly appreciates the time, 
effort, and commitment of the persons who submitted these comments. FRA 
understands that it can be very difficult to share these personal 
events. FRA considers these comments, along with all of the other 
comments it receives. These comments are an important and positive 
contribution to the discussion of highway-rail grade crossing safety.

b. State Identification

    As discussed, Congress expressly directed FRA 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 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, 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.
    Comments to the NPRM stated that the methodology used to identify 
the States did not account for the rate or frequency of highway-rail 
grade crossings and motor vehicle traffic, and that a more appropriate 
measure for determining highway-rail grade crossing collisions within a 
State would be to measure the number of collisions relative to the 
number of vehicles and the number of highway-rail grade crossings, as 
well as consideration of the actions already taken by that State that 
have directly resulted in the reduction of highway-rail grade crossing 
collisions. The final rule does not adopt these suggestions because the 
statute expressly directed FRA to use the particular methodology 
articulated in the final rule (i.e., to identify the ten States that 
have had the most highway-rail grade crossing collisions, on average, 
over the past three years). See RSIA08 section 202(a).
    Another comment stated that the criteria for selecting the States 
should be limited to reported highway-rail grade crossing collisions at 
public crossings. However, again, the statute directed FRA to identify 
the ten States that have had the most highway-rail grade crossing 
collisions, and, as such, did not limit the criteria to only public 
crossings. See Id.

c. Time Period To Develop State Action Plan and Duration of Plan

    Section 202 of RSIA08 instructs FRA to determine a 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

[[Page 36552]]

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 final rule and must 
resubmit the plan as required.

d. Assistance and Coordination

    FRA is 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.
    A comment stated that the NPRM was redundant with the States' 
obligation to prepare a Highway Safety Improvement Plan, and would 
result in a burdensome duplication of efforts. As discussed, this 
rulemaking is required by statute. See RSIA08 section 202. In addition, 
as noted above, States may coordinate their action plans with their 
Strategic Highway Safety Plans.

e. Conditioning the Awarding of Grants

    Section 202 of RSIA08 also empowers FRA 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 final rule.
    A comment to the NPRM stated that FRA had limited its enforcement 
authority by ``excusing'' it's authority to condition certain grants to 
States based on their compliance with the plan requirements. However, 
FRA believes that the final rule adequately conveys that FRA may 
condition the awarding of grants under 49 U.S.C. 20158, 20167, or 
22501, to an identified State on the development of such State's plan, 
and does not diminish FRA's enforcement authority.

III. Section-by-Section Analysis

Section 234.1 Scope

    This section contains the scope provisions related to this part. An 
amendment to this paragraph includes reference to Sec.  234.11, State 
Highway-Rail Grade Crossing Action Plans, as being within this part's 
scope.
    A comment to the NPRM asserts that this rulemaking should not be 
included in part 234 of Title 49 of the Code of Federal Regulations, 
and that, instead, should be included in a separate part. FRA believes 
that it is perfectly appropriate to include the provisions contained in 
this final rule in part 234 and finds the assertion without merit. 
Thus, FRA adopts the provision as proposed.

Section 234.3 Application

    This section outlines the application of this part. The amendment 
to this paragraph excepts Sec.  234.11, State Highway-Rail Grade 
Crossing Action Plans, from the specific applicability provisions 
contained in this section. A comment to the NPRM requested that FRA 
provide guidance or otherwise clarify whether two particular rail 
systems were exempt from the requirements of part 234. This rulemaking, 
however, is not the appropriate setting to make jurisdiction 
determinations regarding particular rail systems. Such jurisdiction 
determinations are more appropriately handled through direct contact 
with FRA's Office of Chief Counsel.

Section 234.4 Preemptive Effect

    The final rule removes this section from part 234. Although FRA 
proposed amending this section in the NPRM, FRA now believes that this 
section is unnecessary because 49 U.S.C. 20106 sufficiently addresses 
the preemptive effect of FRA's regulations. Providing a separate 
Federal regulatory provision concerning the regulation's preemptive 
effect is duplicative and unnecessary. Consequently, FRA believes that 
it is not necessary to address the comments submitted regarding this 
section of the NPRM.

Section 234.6 Penalties

    These section details the civil and criminal penalties that a 
person may be subject to when violating the requirements of this part. 
The amendments to this section provide 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. In addition, a technical 
amendment is made to the criminal penalty section. Specifically, the 
citation to section 209(e) of the Federal Railroad Safety Act of 1970, 
as amended (45 U.S.C. 438(e)) is removed and replaced with a citation 
to 49 U.S.C. 21311(a).

Section 234.11 State Highway-Rail Grade Crossing Action Plans

    Paragraph (a) of this section explains that the purpose of this 
section 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 this 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.
    Paragraph (b) of this section makes clear that this section applies 
to the ten States with the most highway-rail grade crossing collisions, 
on average, during the calendar years 2006, 2007, and 2008.
    Paragraph (c) of this section requires each of 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 specific requirements of the State highway-rail grade 
crossing action plans. This paragraph requires that such plans shall: 
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.
    Paragraph (d) of this section identifies the FRA contact 
information to which the identified States must direct the highway-rail 
grade crossing action plans for review and approval and details the 
process for handling such plans. This paragraph makes clear 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 will have to correct all deficiencies within 30 days 
following receipt of written notice from

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FRA. Lastly, this paragraph states 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 an FRA approved State highway-rail grade 
crossing action plan.
    FRA received a number of comments about the State highway-rail 
grade crossing action plans proposed in the NPRM.
    One comment requested that, in the event a submitted State action 
plan is disapproved by FRA, the notice of disapproval articulate the 
action plan's deficiencies and recommend corrections. FRA intends, in 
the disapproval notice, to provide sufficient information to enable a 
State to successfully correct its plan.
    Another comment stated that the NPRM did not address how proposed 
action plans were to be evaluated by FRA, and what standards would be 
applicable, including the applicable engineering criteria. As an 
initial matter, the State action plans are planning documents and, as 
such, it was not necessary to develop specific engineering criteria. 
FRA will evaluate the action plans to ensure that the specific 
statutory requirements, as articulated in this final rule, are met. FRA 
expects that, at a minimum, identified States will analyze highway-rail 
grade crossing collision data for commonalities that may indicate 
particular areas that need improvements. For example, one State that 
voluntarily prepared an action plan found that most multiple-collision 
crossings were in close proximity to a highway-highway intersection. 
Further investigation determined that there was a general lack of 
knowledge on interconnecting highway traffic signals with automatic 
warning devices at highway-rail grade crossings (which subsequently led 
the State to provide training on the interconnection). That State's 
plan then provided specific items that should be considered when 
evaluating such crossings.
    Another comment sought clarification on whether the action plans 
should provide specific safety solutions for specific highway-rail 
grade crossings, or whether the plans should provide specific safety 
solutions for highway-rail grade crossings more broadly. A similar 
comment stated that the NPRM did not contain any criteria for 
determining how many highway-rail grade crossings should be addressed 
in the action plans, and whether any engineering criteria should be 
applied in selecting specific crossings for inclusion in the action 
plans. To clarify, the final rule is intended to require the identified 
States to develop action plans that identify specific safety solutions 
for highway-rail grade crossings broadly. With that said, the rule also 
requires the States to focus on crossings that have experienced 
multiple accidents or are at high risk for such accidents. As such, a 
component of the action plans may include safety solutions for specific 
highway-rail grade crossings.
    A comment also asserted that the NPRM departed from prior Federal-
State relationships regarding highway-rail grade crossings. However, as 
discussed above, this rulemaking was promulgated pursuant to a 
statutory mandate. See RSIA08 section 202.
    Another comment to the NPRM claimed that highway-rail grade 
crossing safety could be increased by modifying 23 U.S.C. 130 to allow 
for more flexibility in the use of Federal dollars for consolidation 
crossing efforts. A similar comment emphasized the importance of 
retaining a dedicated funding source for highway-rail grade crossing 
improvements. Other comments stated that Federal funds should be taken 
from highway-rail grade crossing education efforts, such as Operation 
Lifesaver, and redirected to implementing safety improvements in 
highway-rail grade crossings in the identified States. FRA understands 
that increased Federal funding may facilitate the closure of redundant 
crossings and otherwise improve highway-rail grade crossings; however, 
this issue is outside the scope of this rulemaking and the involved 
statutory mandate.
    Several comments also asserted that the NPRM was an unfunded 
mandate that would burden the identified States and penalize their 
citizens, and that railroads, instead of the identified States, should 
plan and implement safety improvements to highway-rail grade crossings. 
Another comment claimed that the independent preparation of the action 
plans is not an efficient use of the States' resources and that, 
instead, the States should collaborate with each other and review best 
practices for effective safety programs. However, as previously 
discussed, a statute expressly directed FRA to promulgate this 
rulemaking and, specifically, to identify ten States, and to impose 
certain requirements on those States. See RSIA08 section 202. Moreover, 
States may work with each other, along with FRA staff, to further 
facilitate the process. Comments also noted that requiring only ten 
States to put forth such plans, with each State having varying levels 
of expertise and creating individualized plans, would result in a rule 
that would be neither national nor uniform. However, again, FRA 
promulgated this rule pursuant to a specific statutory mandate. See Id. 
Moreover, there is no requirement that States have uniform highway-rail 
grade crossing safety action plans as each State may have different 
issues to address.
    A comment to the NPRM also suggested that the final rule provide 
that the State action plans be protected from subpoenas and Freedom of 
Information Act (FOIA) requests. The final rule does not adopt this 
suggestion. FRA has articulated a process for requesting confidential 
treatment of documents provided to FRA in connection with its 
enforcement of statutes or FRA regulations related to railroad safety. 
See 49 CFR 209.11. Moreover, the statute requiring the action plans 
does not provide for such a confidentiality provision. See RSIA08 
section 202.
    A comment also asserted that the identified States do not generally 
have the required expertise to prepare the required action plans. 
Again, FRA promulgated this rule pursuant to a statutory mandate. See 
Id. In addition, FRA believes that the identified States will be able 
to successfully develop these plans. Furthermore, FRA is 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.
    Comments also stated that the NPRM should not only focus on two 
safety solutions for highway-rail grade crossings. These comments 
suggested that there are other safety solutions, in addition to 
crossing closure and grade separation solutions discussed in the NPRM, 
and that grade separation is expensive and not viable for most 
circumstances. The final rule, however, makes reference to the crossing 
closure and grade separation solutions because the statute mandated 
that the plans address highway-rail grade crossing closures or grade 
separations. See RSIA08 section 202(a). Moreover, the final rule does 
not prohibit the plans from also addressing other viable safety 
solutions.
    One comment asserted that the NPRM did not provide any specific 
requirements for the State action plans, and suggested that engineering 
evaluations of the safety issues in the identified States be required. 
As an initial matter, the final rule does provide specific requirements 
for the action plans, including that they: identify specific solutions 
for improving safety at crossings (including highway-rail grade 
crossing closures or grade

[[Page 36554]]

separations), and focus on crossings that have experienced multiple 
accidents or are at high risk for such accidents. These requirements, 
moreover, do not prohibit the identified States from performing 
engineering evaluations. In fact, an action plan may identify a 
specific problem that will require engineering evaluations to be 
performed at highway-rail grade crossings that meet certain criteria.
    Other comments recommended that the action plans should: encourage 
States to address obstructed motorist sight lines at highway-rail grade 
crossings; incorporate the American Association of State Highway and 
Transportation Officials (AASHTO) line of sight parameters; and include 
on-the-ground assessments of grade crossings. As an initial matter, 
this final rule does not prohibit the identified States from addressing 
motorist sight lines, or other safety approaches, in their action 
plans. Moreover, the final rule relies on the ability of the identified 
States to identify problem areas and to develop strategies to mitigate 
such problems. And, as discussed, those specific strategies may be 
included in an action plan.
    A comment also suggested that the identified States should not rely 
on historic data, in trying to improve crossing safety. The NPRM, 
however, did not discuss the States' use of historic data, beyond 
noting in the preamble that the development of such plans would enhance 
these States' ability to interpret historical accident information, 
among many other things. Another comment contended that the NPRM was 
inadequate because it did not constitute a long-term plan, was a one-
time effort to address safety problems at highway-rail grade crossings, 
and did not impose any implementation requirements, or any requirements 
for periodically updating the action plans. As discussed above, this 
rule was promulgated pursuant to a specific statutory mandate. See 
RSIA08 Sec.  202. FRA believes that the final rule is faithful to the 
statutory requirements. In addition, the final rule does not prohibit 
the identified States from making the action plans permanent, with 
periodic updates.
    Several comments to the NPRM sought new highway-rail grade crossing 
regulations and made more general suggestions regarding improving 
crossing safety. For example, one comment suggested the promulgation of 
a uniform Federal safety standard of active warning devices for 
highway-rail grade crossings. Another comment submitted draft 
legislation addressing highway-rail grade crossing safety. And, one 
other comment stated that it is essential to prepare draft uniform 
highway-rail grade crossing safety standards that incorporate 
Department of Transportation publications, industry studies, and AASHTO 
publications. Finally, one comment stated that: There needs to be 
widespread installation of crossing gates and lights; there needs to be 
more research of, and improvements to, crossing safety devices; and any 
minimum standard of safety must not stifle the incentives for 
continuing improvement in both technology and application. FRA 
appreciates this dialogue regarding the improvement of highway-rail 
grade crossing safety; however, all of these comments seek actions that 
are beyond the scope of this rulemaking.
    A comment also stated that the identified States should develop an 
inventory of all highway-rail grade crossings in order to identify and 
address the most dangerous crossings. FRA appreciates the suggestion, 
but again notes that this specific request is beyond the scope of this 
rulemaking. FRA also notes that States and railroads are required to 
provide annual updates to the U.S. DOT Crossing Inventory, and that 
such information is available to the States. In addition, most States 
currently have their own crossing inventory databases. Another comment 
to the NPRM stated that FRA should use FRA's database as a tool for 
identifying areas of opportunity, instead of burdening the identified 
States with these responsibilities. Still another comment to the NPRM 
asserted that FRA should assign this responsibility to the railroads as 
well as the identified State's Department of Transportation, in a 
collaborative effort to improve the safety of highway-rail grade 
crossings. As previously discussed, this rulemaking is mandated by 
statute. See RSIA08 section 202. In addition, the U.S. DOT Crossing 
Inventory is available to the States, and most States have their own 
crossing inventory databases. Moreover, FRA staff will be available to 
the States to help facilitate this process.
    There were several comments that were more general in nature. One 
comment asserted that the highest priority of any requirement in the 
design and operation of any highway facility should be safety. With 
respect to highway-rail grade crossings, the subject of this 
rulemaking, FRA believes safety improvement is critical, and this 
general concept is reflected in the final rule. Another comment claimed 
that the NPRM did not appear to have been prepared by a person with 
engineering expertise in highway-rail grade crossing safety, and that 
the NPRM's objective was ``political.'' FRA strongly disagrees with 
this characterization. This final rule is being promulgated pursuant to 
specific requirements articulated by a Congressionally enacted statute, 
and FRA believes the final rule is faithful to those requirements. 
Lastly, one comment stated that the NPRM should not restrict locomotive 
engineers. FRA does not believe that the final rule imposes any further 
restrictions on locomotive engineers.

IV. 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 
final rule 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 for compliance with the 
development of the State highway-rail grade crossing action plans are 
Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, 
Louisiana, Ohio, and Texas. These ten States will incur the burden 
associated with implementation of this final rule. The estimated total 
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 of developing the action plans. This analysis includes a 
quantitative burden measurement and a qualitative benefit discussion 
for this final rule.
    The primary burden imposed will be for State labor resources spent 
to comply with the 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. Table A lists the aggregate salary estimates and man-year 
allocations for the entire mandated population.

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                         Table A--Aggregated Salary Summary of the 10 Identified States
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                Position                        Salary         Hourly rate       Labor hours        Estimate
----------------------------------------------------------------------------------------------------------------
Program Manager, Transportation.........       $483,000.00            $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 final rule requires that FRA review and approve each submitted 
plan consistent with the statutory mandate. FRA anticipates that the 
average review time for each of the initial submissions will be 6 hours 
per plan. Table B lists the aggregated Federal burden associated with 
the review and approval of the required 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 will be imposed 
by this final 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 requirement. Listed in Table C 
is the aggregated burden summary.

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

    The development of State highway-rail grade crossing action plans 
will likely 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. Identification of high risk corridors may also 
occur 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 percent, or almost 4,200 accidents, of all grade 
crossing collisions nationwide. Highway vehicle damage accounted for 
more than $28.5 million during 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. 
Therefore, FRA 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 same three-year time period in these ten States. Assuming very 
conservatively, for purposes of this analysis, that these injuries 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 three-year 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 just one such 
incident 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 the implementation of this rule. In addition to the safety 
benefits, other potential benefits will include: Increased train and 
highway traffic mobility by reducing collisions, fewer

[[Page 36556]]

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, 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..............................       $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 associated with this final rule ranges from $208,000 to 
$311,000.
    In commenting on FRA's RIA of the NPRM, one commenter contended 
that the action plans should be prepared by licensed professional 
engineers practicing in the transportation area with expertise in grade 
crossing design, operations, and safety. Although it may be necessary 
to use such an engineer to implement aspects of an action plan, FRA 
believes that the development of the actions plans do not require the 
direction of such engineers. Another commenter questioned the 
identified States ability to develop action plans under the NPRM's time 
and cost parameters, and suggested that the States will develop general 
plans proposing ``one-size-fits-all'' solutions. As discussed 
previously, FRA believes that the identified States will be able to 
successfully develop these plans in the allotted timeframe. 
Furthermore, FRA is 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. In addition, FRA believes that each identified State will 
develop an action plan tailored to address that State's particular 
safety issues. One commenter also questioned FRA's estimate of the cost 
of preparing the actions plans and stated that the estimate of $26,000 
per State was an under-valuation. As described above, the time and cost 
parameters represent an aggregation of information and estimates 
obtained from a sample of the States as to their own individual 
estimates necessary to comply with the provisions of the final rule. In 
addition, the estimated cost per State of approximately $26,000 is an 
average composed of estimated costs significantly larger and smaller.

Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 require a review of proposed and final rules to 
assess their impact on small entities. An agency must prepare a final 
regulatory analysis, unless it determines and certifies that the rule 
would not have a significant economic impact on a substantial number of 
small entities.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under Sec.  3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) includes not-
for-profit enterprises that are independently owned and operated, and 
are not dominant in their field of operations within the definition of 
``small entities.'' Additionally, Sec.  601(5) defines as ``small 
entities'' governments of cities, counties, towns, townships, villages, 
school districts, or special districts with populations less than 
50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size 
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be (and still classify as a ``small 
entity'') is 1,500 employees for ``Line-Haul Operating'' railroads, and 
500 employees for ``Short-Line Operating'' railroads.\1\
---------------------------------------------------------------------------

    \1\ ``Table of Size Standards,'' U.S. Small Business 
Administration, January 31, 1996, 13 CFR part 121. See also NAICS 
Codes 482111 and 482112.
---------------------------------------------------------------------------

    SBA size standards may be altered by Federal agencies in 
consultation with SBA, and in conjunction with public comment. Pursuant 
to the authority provided to it by SBA, FRA has published a final 
policy, which formally establishes small entities as railroads that 
meet the line haulage revenue requirements of a Class III railroad.\2\ 
Currently, the revenue requirements are $20 million or less in annual 
operating revenue, adjusted annually for inflation. The $20 million 
limit (adjusted annually for inflation) is based on the Surface 
Transportation Board's threshold of a Class III railroad carrier, which 
is adjusted by applying the railroad revenue deflator adjustment.\3\
---------------------------------------------------------------------------

    \2\ See 68 FR 24891 (May 9, 2003).
    \3\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------

    This rule would apply to States--none of which is small as defined 
above. Thus, pursuant to section 605(b) of the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), FRA certifies that this rule will not have a 
significant economic impact on a substantial number of small entities, 
as it only affects ten identified States.

Paperwork Reduction Act

    The information collection requirements in this 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:

[[Page 36557]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      Average time per    Total annual
              CFR Section                         Respondent universe                  Total annual responses         response (hours)    burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
234.11--State Highway-Rail Grade
 Crossing Action Plans:
    --Development and Submission of      10 States............................  10 plans............................               600             6,000
     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. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-
493-6292 or Ms. Kimberly Toone at 202-493-6132 or via e-mail at the 
following addresses: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    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 final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

Environmental Impact

    FRA has evaluated this 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 final rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
64 FR 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 final rule that 
might trigger the need for a more detailed environmental review. As a 
result, FRA finds that this final rule is not a major Federal action 
significantly affecting the quality of the human environment.

Federalism Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132, ``Federalism'' (64 FR 
43255, Aug. 4, 1999), which 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.
    FRA has determined that this final rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, nor on the distribution of power and 
responsibilities among various levels of government. In addition, FRA 
has determined that this final rule will not impose substantial direct 
compliance costs on State and local governments. Therefore, the 
consultation and funding requirements of E.O. 13132 do not apply.
    Although this final rule removes the preemption section of part 
234, FRA notes that this part could have preemptive effect by the 
operation of law under the FRSA. 49 U.S.C. 20106. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to Sec.  20106.
    This final rule also amends FRA's regulations by adding a provision 
for State highway-rail grade crossing action plans. This provision 
expressly provides that it does not restrict any State, not identified 
by the final rule, or other entity, from adopting a highway-rail grade 
crossing action plan, nor does it restrict any of the identified States 
from developing action plans with additional or more stringent 
requirements that are not inconsistent with this final rule.
    In sum, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132, and has 
determined that preparation of a federalism summary impact statement 
for this final rule is not required.

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

[[Page 36558]]

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 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 final rule in accordance with Executive Order 
13211. FRA has determined that this 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 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; Pub. 
L. 110-432, Div. A, Sec.  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.


Sec.  234.4  [Removed]

0
5. Section 234.4 is removed.

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 
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

[[Page 36559]]

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 21311(a).

Subpart B--Reports and Plans

0
7. The heading to subpart B is revised to read as set forth above.

0
8. Section 234.11 is added to subpart B 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 August 27, 2011.
    (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., 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 an 
FRA approved State highway-rail grade crossing action plan.

    Issued in Washington, DC, on June 22, 2010.
Karen Rae,
Deputy Administrator, Federal Railroad Administration.
[FR Doc. 2010-15534 Filed 6-25-10; 8:45 am]
BILLING CODE 4910-06-P

