[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
[Rules and Regulations]
[Pages 80648-80661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26064]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2018-0096, Notice No. 2]
RIN 2130-AC72


State Highway-Rail Grade Crossing Action Plans

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

ACTION: Final rule.

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SUMMARY: FRA is issuing this final rule in response to the Fixing 
America's Surface Transportation Act mandate that FRA issue a rule 
requiring 40 States and the District of Columbia to develop and 
implement highway-rail grade crossing action plans. This final rule 
also requires ten States that developed highway-rail grade crossing 
action plans as required by the Rail Safety Improvement Act of 2008 and 
FRA's implementing regulation to update their plans and submit reports 
to FRA describing actions they have taken to implement them.

DATES: This final rule is effective January 13, 2021.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments received, go to http://www.regulations.gov and 
follow the online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: James Payne, Staff Director, Highway-
Rail Crossing and Trespasser Programs Division (telephone: 202-493-
6005); Debra Chappell, Transportation Specialist (telephone: 202-493-
6018); or Kathryn Gresham, Attorney Adviser, Office of the Chief 
Counsel (telephone: 202-493-6063).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Funding
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
    A. Executive Order 12866, Congressional Review Act, and DOT 
Regulatory Policies and Procedures
    B. Regulatory Flexibility Determination
    C. Federalism
    D. Paperwork Reduction Act
    E. Environmental Impact
    F. Executive Order 12898 (Environmental Justice)
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact

I. Executive Summary

    This final rule revises FRA's regulation (49 CFR 234.11) on State 
highway-rail grade crossing action plans (Action Plans) to require 40 
States and the District of Columbia (DC) to develop and implement FRA-
approved Action Plans. The final rule also requires ten States that 
were previously required to develop Action Plans by the Rail Safety 
Improvement Act of 2008 \1\ (RSIA) and FRA's implementing regulation at 
49 CFR 234.11 to update their plans and submit reports describing the 
actions they have taken to implement their plans.
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    \1\ Public Law 110-432.
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    This final rule is intended to implement the Fixing America's 
Surface Transportation Act (FAST Act) mandate that the FRA 
Administrator promulgate a regulation requiring States to develop, 
implement (and update, if applicable) Action Plans.\2\ In RSIA, 
Congress directed the Secretary of Transportation (Secretary) to 
identify the ten States that had the most highway-rail grade crossing 
(GX) collisions, on average, over the previous three years, and require 
those States to develop Action Plans for the Secretary's approval.\3\ 
RSIA required the Action Plans to ``identify specific solutions for 
improving'' grade crossing safety and to ``focus on crossings that have 
experienced multiple accidents or are at high risk'' for accidents. 
Using FRA's database of reported GX accidents/incidents that occurred 
at public and private grade crossings, FRA determined the following ten 
States had the most reported GX accidents/incidents at public and 
private grade crossings during the three-year period from 2006 through 
2008: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, 
Louisiana, Ohio, and Texas. Therefore, on June 28, 2010, FRA issued a 
final rule (2010 final rule) requiring these ten States to develop 
Action Plans and submit them to FRA for approval (based on the 
Secretary's delegation of authority to the Federal Railroad 
Administrator in 49 CFR 1.89).\4\
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    \2\ 49 U.S.C. 11401.
    \3\ RSIA, Sec. 202.
    \4\ 75 FR 36551 (June 28, 2010) (codified at 49 CFR 234.11).
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    Section 11401 of the FAST Act (Section 11401) \5\ tasks the FRA 
Administrator with promulgating a regulation requiring these ten States 
to update the Action Plans they previously submitted to FRA under 49 
CFR 234.11. This statutory mandate also directs FRA to include a 
regulatory provision that requires each of these ten States to submit a 
report to FRA describing: (a) What the State did to implement its 
previous Action Plan; and (b) how the State will continue to reduce GX 
safety risks. As for the other 40 States and DC, Section 11401(b)(1)(B) 
requires the FRA Administrator to promulgate a regulation requiring 
them to develop and implement State Action Plans.
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    \5\ 49 U.S.C. 11401.
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    The FAST Act mandate contains specific requirements for the 
contents of the Action Plans. As set forth in Section 11401(b)(2), each 
Action Plan must identify GXs that: (a) Have experienced recent GX 
accidents or incidents; (b) have experienced multiple GX accidents or 
incidents; or (c) are at high-risk for accidents or incidents. Section 
11401(b)(2) further provides that each Action Plan must identify 
specific strategies for improving safety at GXs, including GX closures 
or grade separations, and that each State Action Plan must designate a 
State official responsible for managing implementation of the plan.
    In addition, the FAST Act mandate contains requirements related to 
FRA's review and approval of State Action Plans, as well as 
requirements related to the publication of FRA-approved plans. For 
example, when FRA approves a State's Action Plan, Section 11401(b)(4) 
requires FRA to make the approved plan publicly available on an 
``official internet website.''
    If a State submits an Action Plan FRA deems incomplete or 
deficient, Section 11401(b)(6) requires FRA to notify the State of the 
specific areas in which the plan is deficient. In addition, Section 
11401(b)(6) requires States to correct any identified deficiencies and 
resubmit their corrected plans to FRA within 60 days from FRA's 
notification of the deficiency. If a State fails to meet this 60-day 
deadline for correcting deficiencies identified by FRA, Section 
11401(b)(8) requires FRA to post a notice on an ``official internet 
website'' that the State has an incomplete or deficient Action Plan. 
FRA personnel, including FRA regional grade crossing managers, 
inspectors, and specialists and experts from FRA's Highway-Rail 
Crossing and Trespasser Programs Division, are available to assist 
States with developing, implementing, and

[[Page 80649]]

updating their Action Plans. For example, as further explained in the 
Section-by-Section Analysis below, FRA will offer webinars as well as 
provide GX accident/incident data to States upon request. FRA will also 
assist State agencies that wish to use FRA's Office of Safety Analysis 
website (https://railroads.dot.gov/safety-data) to generate customized 
reports of GX accident/incident data.

II. Funding

    FRA received comments recommending that Federal funding should be 
available to offset the costs associated with State efforts to develop 
and update Action Plans, as required by this final rule. Delaware DOT 
(DelDOT) commented that dedicated funding should be available for 
States to develop and implement their Action Plans as required by FRA, 
while the Vermont Agency of Transportation (VTrans) submitted comments 
encouraging FRA to include funding to States in carrying out this 
requirement. Otherwise, DelDOT asserted that the costs associated with 
developing and implementing an Action Plan would prohibit or delay the 
State's implementation of safety improvements.
    The statutory mandate for this rulemaking did not contain any 
provision that would authorize dedicated Federal funding for the Action 
Plans. However, Section 11401(d) allows for States to use Federal funds 
allocated through the Federal Highway Administration's (FHWA) Railway-
Highway Crossings (Section 130) Program to develop and update their 
Action Plans as required by this final rule. In addition, the two 
percent limitation on the use of Section 130 funds apportioned to a 
State allowed by 23 U.S.C. 130(k) for the compilation and analysis of 
data in support of the Rail-Highway Crossings Program annual reports 
does not restrict the use of Section 130 funds to develop or update 
Action Plans. However, FRA recommends States contact their local FHWA 
Division Office for more information, if they have questions about the 
use of Section 130 funds or any other FHWA-administered funds to 
develop or update their Action Plans.
    Minnesota DOT (MNDOT) submitted comments requesting specific 
guidance on how States may use Section 130 funds to develop their 
Action Plans. In particular, MNDOT asked if States may use Section 130 
funds to offset the cost of developing Action Plans at 100 percent 
funding, or whether States will be required to come up with a 10 
percent match. In addition, if States will be required to come up with 
a 10 percent match, MNDOT asked if the State of Minnesota can use funds 
in its Grade Crossing Safety Account as the 10 percent match. Under 23 
U.S.C. 130(f)(3), the Federal share of rail-highway crossing projects 
using Section 130 set-aside funds is 90 percent. The question regarding 
State of Minnesota Grade Crossing Safety Account funds falls outside 
the scope of this rulemaking, as the State of Minnesota administers the 
distribution of State funding. As such, FRA recommends that MNDOT 
coordinate with the appropriate agency to obtain guidance on that 
issue.

III. Section-by-Section Analysis

Section 234.1 Scope

    This section discusses the scope of part 234. As proposed in the 
notice of proposed rulemaking (NPRM),\6\ FRA is revising paragraph 
(a)(3) to reflect the revised requirements contained in 49 CFR 234.11 
as a result of the FAST Act mandate and indicate that these revised 
requirements are within the scope of this part.
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    \6\ 84 FR 60032 (Nov. 7, 2019).
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Section 234.5 Definitions

    Although FRA proposed no new definitions in the NPRM, after 
reviewing the comments received in response to the NPRM, in this final 
rule, FRA is adding definitions for three terms used in Sec.  234.11 to 
the list of definitions in Sec.  234.5.
    The first definition FRA is adding is the definition of the term 
``accident/incident,'' which FRA is adopting, in part, from the 
definition of the term in 49 CFR 225.5. Specifically, this final rule 
defines ``accident/incident'' as any impact between railroad on-track 
equipment and a highway user at a GX or pathway grade crossing (PX). 
The definition further notes that the term ``highway user'' includes 
automobiles, buses, trucks, motorcycles, bicycles, farm vehicles, 
pedestrians, and all other modes of surface transportation, motorized 
and un-motorized.
    FRA received a number of comments on its proposal to replace the 
term ``collisions'' in Sec.  234.11(a) with the term ``accidents,'' and 
to use the term ``accident or incident'' in Sec.  234.11(e) when 
describing required Action Plan elements. MNDOT and the Oregon 
Department of Transportation (ODOT) commented that use of the terms 
``accidents'' (used in proposed paragraph (a)) and ``accident or 
incident'' (used in proposed paragraph (e)) would be confusing. MNDOT 
recommended that FRA define these terms in the final rule. ODOT 
recommended that FRA use a single word or word combination consistently 
throughout the final rule, instead of switching back and forth between 
``accident'' and the word combination ``accident or incident.'' A 
resident of Chicago, Illinois also commented that the phrase ``accident 
or incident'' is too vague.
    In addition, FRA received comments from one or more unnamed 
individuals calling themselves the ``State Program Managers Section 
130/State [GX] Program Office,'' and self-described as having a 
combined 50 years of public service experience and over 25 years of 
experience managing Section 130 programs. FRA refers to this commenter 
as the ``130 Group'' to distinguish them from official comments 
submitted on behalf of Section 130 Program Managers for one or more 
State departments of transportation. In their comments, the 130 Group 
recommended FRA use the term ``collision'' or the term ``crash'' in 
this final rule for consistency with other highway safety programs that 
seek to mitigate the frequency and severity of incidents. The 130 Group 
explained that use of the term ``accident'' has been discouraged 
because a train always has the right of way and a vehicle must always 
stop or approach a grade crossing prepared to stop.
    The Alaska Department of Transportation and Public Facilities 
(Alaska DOT&PF) also prefers the word ``crashes.'' Alaska DOT&PF 
asserted in its comments that ``crashes'' is the terminology more 
commonly recognized by traffic safety practitioners and interest groups 
and recommended that FRA at least explain why the term is not used, if 
not adopted in the final rule.
    After considering these comments, in this final rule, FRA is 
adopting a slightly revised term, ``accident/incident.'' In making this 
decision, FRA relied heavily on the plain language of Section 11401(b), 
which specifically refers to ``[GX] accidents or incidents'' as one of 
the primary factors for identifying GXs that must be addressed by 
States in their Action Plans. FRA notes that the word combination 
``accidents or incidents'' used in Section 11401(b) is essentially the 
same as the term ``accident/incidents,'' which has been used for years 
in FRA's accident reporting regulations in 49 CFR part 225.
    This final rule also moves the existing definition of ``pathway 
grade crossing'' from Sec.  234.301 (which applies only to FRA's 
Emergency Notification System regulations in subpart C to 49 CFR part 
234) to Sec.  234.5. Although FRA did not propose to move this 
definition in the

[[Page 80650]]

NPRM, by moving it to Sec.  234.5 in this final rule, the definition 
will now apply to all of FRA's grade crossing regulations in 49 CFR 
part 234. For purposes of this final rule, including the definition in 
Sec.  234.5 will make clear the term's meaning as it is used in Sec.  
234.11, which as revised, requires States to address safety at PXs, as 
well as GXs, in their Action Plans. This change is consistent with the 
mandate of Section 11401(e), which defines ``highway-rail grade 
crossing'' to include locations where ``a pathway explicitly authorized 
by a public authority or a railroad carrier . . . crosses one or more 
railroad tracks either at grade or grade-separated.'' Specifically, in 
this final rule, FRA is defining the term ``pathway grade crossing'' in 
Sec.  234.5 to mean a pathway that crosses one or more railroad tracks 
at grade and that is: (1) Explicitly authorized by a public authority 
or a railroad; (2) dedicated for the use of non-vehicular traffic, 
including pedestrians, bicyclists, and others; and (3) not associated 
with a public highway, road, or street, or a private roadway.
    Pathways that are contiguous with, or separate but adjacent to, GXs 
are part of the GX and are not separate crossings. However, as 
explained in FRA's Guide for Preparing U.S. DOT Crossing Inventory 
Forms, pathways that intersect with one or more railroad tracks more 
than 25 feet from the location where a highway, road, or street 
intersects with one or more railroad tracks are generally separate PXs. 
The comments regarding this term and FRA's responses are further 
discussed below in the discussion regarding Sec.  234.11.
    FRA is also adding a definition of ``State highway-rail grade 
crossing action plan'' or ``Action Plan.'' This definition is being 
added in response to multiple comments from State agencies, including 
Alaska DOT&PF, Washington Utilities and Transportation Commission staff 
(Washington UTC staff), the South Dakota Department of Transportation 
(SDDOT) and the departments of transportation for Idaho, Montana, North 
Dakota, and Wyoming, recommending that FRA allow States the flexibility 
to coordinate, integrate, or incorporate their Action Plans with other 
reports, such as the Strategic Highway Safety Program (SHSP) or the 
State Transportation Improvement Program. Specifically, this final rule 
defines ``State highway-rail grade crossing action plan'' or ``Action 
Plan'' as a document submitted to FRA for review and approval by a 
State of the United States (or DC), which contains the elements 
required by Sec.  234.11(e) to address safety at highway-rail and 
pathway grade crossings. Therefore, a State may comply with this final 
rule by submitting an existing document to FRA that addresses GX and PX 
safety, provided the existing document contains (or is amended to 
include) all the required elements in Sec.  234.11(e).

Section 234.11 State Highway-Rail Grade Crossing Action Plans

    Currently, paragraph (a) of this section indicates that the purpose 
of this section is to reduce ``collisions'' at GXs in the ten States 
that had the most GX collisions from 2006-2008 (the ``initial ten 
States''). Existing paragraph (a) also makes clear that this section 
does not restrict any other entity from adopting an Action Plan, nor 
would it restrict any State or DC from adopting an Action Plan with 
additional or more stringent requirements not inconsistent with this 
regulation. In the NPRM, FRA proposed to replace the word 
``collisions'' with the word ``accidents'' for consistency with the 
language of Section 11401(b). For the reasons discussed above, in this 
final rule, FRA is revising paragraph (a) to state that the purpose of 
the section is to reduce ``accident/incidents'' at GXs and PXs 
nationwide by requiring States and DC to develop or update and 
implement Action Plans.
    As revised, paragraph (a) reiterates the existing language 
clarifying that this section does not restrict any entity from adopting 
an Action Plan with additional or more stringent requirements, nor does 
it restrict any State or DC from adopting an Action Plan with 
additional or more stringent requirements not inconsistent with this 
regulation. For purposes of this section, unless otherwise stated, the 
term ``State'' refers to any one of the 50 States in the United States 
of America or DC; FRA also separately refers to or identifies DC within 
part 234 for clarity in some instances.
    Consistent with the NPRM, paragraph (b) of this section requires 40 
States (the States other than the initial ten States) and DC to develop 
individual Action Plans that address each of the required elements 
listed in paragraph (e) of this section, and to submit their individual 
plans to FRA for review and approval no later than 14 months after the 
final rule publication date. For the reasons discussed below, in this 
final rule, FRA is adding a definition of ``State highway-rail grade 
crossing action plan'' to Sec.  234.11 to clarify that a State may 
prepare and submit a document specifically designed to satisfy the 
requirements of this section or submit an existing document that 
contains (or is amended to include) all the required elements in Sec.  
234.11(e).
    For example, to satisfy the requirements of this final rule, a 
State may choose to update its SHSP and provide the updated SHSP to FRA 
for review and approval as its Action Plan. However, States should be 
mindful that updating an existing document to include all the required 
elements in Sec.  234.11(e) does not change the underlying nature of 
the document. Accordingly, if a State chooses to update an existing 
document to include all the required elements in Sec.  234.11(e), this 
final rule does not relieve the State from complying with all 
applicable State or Federal requirements that govern the existing 
document.
    Also, if a State chooses to update an existing document, the State 
is strongly encouraged to add a separate chapter or appendix to address 
the required elements in paragraph (e) of this section. In the 
alternative, the State may add an index to the updated document that 
clearly identifies the specific pages on which the required elements in 
paragraph (e) of this section are addressed.
    Paragraph (b) also requires 40 States (the States other than the 
initial ten States) and DC to submit their Action Plans electronically 
through FRA's website in Portable Document Format (PDF). FRA will 
provide a secure document submission site for States and DC to use to 
upload their Action Plans for FRA review and approval.
    DelDOT, MNDOT, the 130 Group, and the departments of transportation 
for Idaho, North Dakota, South Dakota, and Wyoming submitted comments 
on the proposed requirement in paragraph (b) to submit individual 
Action Plans to FRA for review and approval. DelDOT noted that the 
State of Delaware currently experiences an extremely low number of 
train-related crashes and asserted that developing an Action Plan would 
draw resources away from other ongoing efforts to make a positive 
safety impact on the State and its communities. Accordingly, DelDOT 
recommended that FRA establish guidelines that, if met, would exempt a 
State from the requirement to develop an Action Plan.
    The 130 Group also recommended that FRA establish a threshold that, 
if met, would exempt a State from the requirement to develop an Action 
Plan. Specifically, the 130 Group recommended that FRA establish a 
national car-train crash ratio threshold that would exempt States with 
car-train crash ratios lower than the threshold from the requirement to 
develop and

[[Page 80651]]

submit an Action Plan to FRA for review and approval.
    Another commenter, identified as the Chicagoland Rail Safety Team 
(CRST), similarly recommended that FRA conduct an ``almost 
perfunctory'' review of the Action Plans submitted by States with the 
lowest number of grade crossing fatalities. In addition, CRST 
recommended that FRA allow States with the lowest number of grade 
crossing fatalities simply to complete an FRA-prepared questionnaire.
    FRA also received multiple comments from State agencies, including 
Alaska DOT&PF, Washington UTC staff, SDDOT and the departments of 
transportation for Idaho, Montana, North Dakota, and Wyoming, 
recommending that FRA include a provision in this final rule allowing 
States the flexibility to coordinate, integrate, or incorporate their 
Action Plans with other reports, such as the SHSP or the State 
Transportation Improvement Program. The departments of transportation 
for Idaho, Montana, North Dakota, South Dakota, and Wyoming asserted 
that integrating the Action Plans required by this rulemaking with 
other plans may improve implementation, facilitate and simplify 
coordination, and promote synergy with other plans.
    Section 11401(b) specifically directed FRA to issue implementing 
regulations requiring each State (except for the initial ten States) to 
develop and implement an Action Plan. Therefore, this final rule does 
not exempt any State from the requirement to develop a written plan to 
improve safety at GXs and PXs. However, recognizing that a number of 
States may have already developed written plans or other documents 
addressing GX and PX safety, as noted above, FRA has added a definition 
of ``Action Plan'' to this final rule that allows States to submit 
existing documents that address GX and PX safety, if the documents 
contain (or are amended to include) all the required elements listed in 
paragraph (e) of this section. As explained above, if a State chooses 
to update an existing document, the document must address all the 
required elements listed in paragraph (e) in a separate chapter or 
appendix so that it is clear how it complies with the requirements for 
an Action Plan. If a State decides to submit an existing document as 
its Action Plan to FRA for review and approval, without adding a 
separate chapter or appendix, the State should include an index that 
shows where the document addresses each required element listed in 
paragraph (e).
    MNDOT commented that the 14-month period within which States are 
required to develop Action Plans is extremely aggressive. However, FRA 
does not have the flexibility to extend the 14-month period for States 
to develop and update Action Plans because FRA is required by Section 
11401 to review and approve the Action Plans and then report to 
Congress information about the Action Plans and their implementation 
within three years of the date of this final rule. Therefore, FRA will 
work closely with States that seek FRA's assistance in preparing their 
Action Plans, and allow flexibility to submit existing documents that 
contain (or are amended to include) all the required elements listed in 
paragraph (e) of this section.
    DelDOT urged FRA to clarify that the requirement in paragraph (b) 
to develop Action Plans does not contain a duty to update Action Plans 
after they have been approved by FRA. Except for the initial ten 
States, the statutory mandate in Section 11401(b) does not direct FRA 
to require States to update their Action Plans. Therefore, except for 
the initial ten States that are required to submit updated Action Plans 
this one time, this final rule does not require States to update their 
Action Plans after they are approved by FRA.
    FRA recommends that States update their Action Plans even though 
they are not required to do so. The actions States must take to develop 
Action Plans and, more specifically, to develop specific strategies for 
improving grade crossing safety can, if done properly, significantly 
improve safety and complement other efforts by States to improve 
transportation safety generally, by focusing attention on the State's 
GX and PX safety needs. In this regard, Action Plans can supplement 
existing State efforts to increase the effectiveness of grade crossing 
improvements by adding a planning component to identify GXs and PXs 
that have experienced recent (or multiple) accident/incidents or are 
considered ``high-risk'' for having one or more accident/incidents in 
the future.
    Currently, paragraph (c) of this section outlines requirements for 
the Action Plans that the initial ten States were required to submit to 
FRA by August 27, 2011. As proposed in the NPRM and in response to the 
statutory mandate in Section 11401(b), this final rule revises 
paragraph (c) to require each of the initial ten States to update their 
existing Action Plans and to provide individual reports on their 
efforts to implement their existing plans and on the continuation of 
their strategies to reduce GX and PX safety risks.
    As also proposed in the NPRM, paragraph (c)(1) of this section 
requires each of the initial ten States to update their existing Action 
Plans to address each of the required elements listed in paragraph (e) 
of this section within 14 months of the final rule publication date. 
(Action Plans developed by the other 40 States and DC will be required 
to address these elements as well.) Paragraph (c)(1) also requires each 
of the initial ten States to submit their updated Action Plans to FRA 
for review and approval.
    The list of required elements in paragraph (e) incorporates many of 
the elements that the initial ten States were required to address in 
their existing plans. However, as discussed below, there are new 
requirements that the initial ten States will need to address in their 
updated plans. For example, for consistency with Section 11401(b), 
States will need to address PX safety and States will need to identify 
the data sources used to classify PXs and GXs in one of the categories 
set forth in paragraph (e)(1). Below is a more detailed discussion of 
paragraph (e) requirements.
    As proposed in the NPRM, paragraph (c)(2) requires each of the 
initial ten States to submit a report to FRA describing how the State 
implemented the Action Plan that it previously submitted to FRA under 
49 CFR 234.11. Each of these initial ten States is also required by 
paragraph (c)(2) to describe in its report how the State will continue 
to reduce GX and PX safety risks. These requirements are derived from 
Section 11401(b).
    This report, which must address each proposed initiative or 
solution contained in the State's Action Plan originally submitted to 
FRA under 49 CFR 234.11, can be submitted as an appendix to the State's 
updated Action Plan. As CRST recommends in its comments, FRA intends to 
use these implementation reports to identify States that have effective 
Action Plans in place, as well as States with Action Plans that need to 
be improved, so FRA can provide additional assistance that may be 
needed through focused outreach efforts.
    Paragraph (c)(3) has been added to the final rule, in order to move 
the list of the initial ten States from paragraph (d), as proposed, 
into paragraph (c) for ease of reference. This change is not 
substantive.
    Paragraph (d) of this section requires the initial ten States to 
submit their updated Action Plans and individual implementation reports 
electronically in PDF form. FRA will provide a secure document 
submission site for these

[[Page 80652]]

States to use to upload their updated Action Plans and implementation 
reports for FRA review.
    As proposed in the NPRM, paragraph (e) of this section contains a 
list of required elements for new and updated State Action Plans. These 
elements are derived from Section 11401(b)(2), which mandates that each 
State Action Plan ``identify [GXs] that have experienced recent [GX] 
accidents or incidents or multiple [GX] accidents or incidents, or are 
at high-risk for accidents or incidents.''
    As noted in the section-by-section discussion of Sec.  234.5 above, 
States are required to address both GXs and PXs in their Action Plans. 
Congress specifically included PXs in Section 11401(b). Therefore, 
although not proposed in the NPRM, in deference to Congressional intent 
to require States to address both GXs and PXs, FRA is requiring States 
to address PXs in their Action Plans.
    FRA received comments from the 130 Group expressing concern that 
this final rule might require States to address private grade crossings 
in their Action Plans. The 130 Group asserted that State efforts to 
regulate private crossings (especially when combined with the 
complications of access to private property) would require 
significantly more staff and would open ``a myriad of legal issues 
regarding government oversight of private infrastructure and 
operations.'' Therefore, the 130 Group recommended that paragraph 
(e)(1) be limited to public GXs.
    Section 11401(b) specifically includes private GXs in its 
definition of the term ``GX.'' Therefore, FRA has not revised this 
final rule to limit its scope to public GXs. However, FRA recognizes 
that not all States exercise jurisdiction over private grade crossings. 
Accordingly, while this final rule requires States to assess risk 
levels at private grade crossings, and to address private grade 
crossings that present significant levels of risk, FRA recognizes that 
the ability of States to address risks at private grade crossings will 
depend on the level of the authority individual States exercise over 
those crossings (and, in some cases, the public/private nature of the 
roadway leading to the crossing).
    In addition, FRA received comments from a resident of Chicago, 
Illinois and the CRST, urging FRA to encourage States to use an 
expanded definition of the term ``GX'' that would include 1,000 feet on 
either side of the actual intersection of the roadway with railroad 
tracks. CRST also recommended, in the alternative, that FRA send a 
letter to members of Congress seeking additional information about the 
Congressional intent underlying Section 11401. Specifically, CRST 
recommended that FRA confirm whether Congress intended States to focus 
their Action Plans on GXs as currently defined in 49 CFR 234.5, or 
whether Congress intends States to utilize a more expansive definition, 
such as CRST's proposed definition, which would include more 
trespassing casualties. In support of its recommendation, CRST pointed 
to data included in FRA's National Strategy to Prevent Trespassing on 
Railroad Property, which indicates that 74 percent of trespasser deaths 
and injuries occurred within 1,000 feet of a grade crossing. Similarly, 
the resident of Chicago, Illinois asserted that trespassing injuries 
and fatalities should not be excluded simply because they do not occur 
where pavement and rails intersect. This commenter urged FRA to require 
States to differentiate uniformly between trespasser and vehicle 
incidents in their Action Plans, so that States will collect and 
categorize this information separately as incidents occur.
    FRA encourages States in their Action Plans to evaluate potential 
risks posed by trespassing within 1,000 feet of the actual intersection 
of the roadway with the railroad tracks.
    Similarly, FRA encourages States to differentiate between motor 
vehicle crashes and pedestrian fatalities and injuries that occur at 
GXs and PXs in their Action Plans and to assess whether they need to 
take specific actions to address pedestrian safety at GXs and PXs. 
Nonetheless, FRA received multiple comments from States, including the 
Washington Utilities and Transportation Commission staff, SDDOT, and 
the State departments of transportation for Idaho, Montana, North 
Dakota, and Wyoming, expressing concern that this rulemaking should 
support State efforts to develop simple, straightforward and low-cost 
Action Plans and should not impose additional regulatory requirements 
that were not specifically included in the language of the FAST Act. 
Therefore, FRA strongly recommends that States with GXs and PXs located 
near locations identified as trespasser ``hot spots'' include 
strategies in their Action Plans to address trespassing, as some GXs 
and PXs may be used by individuals to gain access to the railroad 
right-of-way. However, in recognition of the fact that not all States 
have significant pedestrian safety concerns at their highway-rail and 
pathway crossings, FRA is not revising the definition of ``GX'' in 
Sec.  234.5 to include the railroad right-of-way within 1,000 feet of 
the intersection of the roadway with the railroad tracks, nor is FRA 
requiring States to assume the additional burden of collecting and 
categorizing information about motor vehicle crashes and pedestrian 
fatalities and injuries separately. FRA is addressing the trespassing 
issue through implementation of its National Strategy to Prevent 
Trespassing on Railroad Property (available online at https://railroads.dot.gov/national-strategy-prevent-trespassing).
    As proposed in the NPRM, paragraph (e)(1) would require States to 
identify in their Action Plans GXs that: (1) Have experienced at least 
one accident or incident within the previous three years; (2) have 
experienced more than one accident or incident within the previous five 
years; or (3) are at ``high-risk'' for accidents or incidents as 
defined by the relevant State or DC.
    FRA received comments on the proposed three-year period in 
paragraph (e)(1)(i) from ODOT, which recommended that the time period 
be made consistent with the proposed five-year time period in proposed 
paragraph (e)(1)(ii). Asserting three years of accident or incident 
data may not be enough to make a determination, ODOT recommended that a 
consistent five-year period would be most appropriate.
    However, as noted in the NPRM, FRA intended to use different time 
periods in paragraphs (e)(1)(i) and (e)(1)(ii) to differentiate between 
grade crossings that have experienced ``recent'' accident/incidents and 
grade crossings that have experienced ``multiple'' accident/incidents 
as Section 11401(b) requires. As explained in the NPRM, the three-year 
time period in paragraph (e)(1)(i) is intended to enable States to 
identify which individual GXs and PXs have experienced ``recent'' 
accident/incidents. The five-year time period in paragraph (e)(1)(ii) 
is intended to enable States to identify which individual GXs and PXs 
have experienced ``multiple'' GX accidents/incidents. This five-year 
timeframe is consistent with the five-year timeframe used by the 
initial ten States when they prepared their Action Plans pursuant to 
existing Sec.  234.11.
    FRA received comments on this 5-year period in paragraph (e)(1)(ii) 
from MNDOT, in which MNDOT noted the State of Minnesota has a very low 
number of GXs that have experienced more than one accident or incident 
in the previous five years. Therefore, MNDOT asked whether it would be 
permissible for a State to look back over a longer period to improve 
its analysis.
    Thankfully, as MNDOT points out, some States have a very low number 
of GXs which have experienced more than one accident/incident in the 
previous

[[Page 80653]]

five years. FRA suggests that States with very low grade crossing 
accident/incident numbers should consider defining what constitutes a 
GX or PX with a ``high-risk for accidents or incidents'' in accordance 
with paragraph (e)(1)(iii) and addressing those crossings in their 
Action Plans. As proposed in the NPRM, paragraph (e)(1)(iii) allows a 
State to define what constitutes grade crossings with a ``high-risk for 
accidents or incidents'' and focus its Action Plan on those crossings. 
By choosing this option, as opposed to trying to identify GXs and PXs 
that have experienced previous accidents/incidents in accordance with 
paragraph (e)(1)(i) or (ii), States with low grade crossing accident/
incident numbers can, within the constraints of paragraph (e)(1)(iii), 
use a different set of criteria to identify GXs and PXs to address in 
their Action Plans.
    MNDOT also submitted comments on the proposed paragraph 
(e)(1)(iii), noting that the State of Minnesota has done significant 
work developing a risk ranking system for project selection. Therefore, 
MNDOT expressed optimism that, given FRA's proposal in the proposed 
rule to allow States the flexibility to define ``high risk'' GXs, MNDOT 
may be able to use their existing risk ranking system to define ``high 
risk'' GXs within the State of Minnesota and thereby reduce plan 
development costs.
    However, the American Federation of Labor and Congress of 
Industrial Organizations (AFL-CIO), the Association of American 
Railroads (AAR), and an individual commenter submitted comments 
expressing concern with the proposed language in paragraph (e)(1)(iii) 
that would allow States to define what constitutes a ``high risk'' GX. 
AFL-CIO asserted that the proposed language in paragraph (e)(1)(iii) 
would allow States to limit their efforts to grade crossings where an 
accident has already taken place, which it asserted would be 
inconsistent with the spirit of the underlying statutory mandate. 
Similarly, while noting that some level of risk standardization would 
likely benefit the nation as a whole, Mr. Gregory James submitted 
comments recommending that FRA disseminate minimum guidelines for 
identifying potentially problematic grade crossings.
    AAR expressed concern that if FRA does not define what constitutes 
``high risk'' of an incident occurring at a GX, the result would be 51 
different definitions of what constitutes ``high risk.'' Therefore, AAR 
recommended that, at a minimum, FRA should include factors that States 
should consider when designating a grade crossing as ``high risk.'' For 
example, AAR recommended States consider factors such as profile 
deficiencies, skew, inadequate sight distances due to fixed 
obstructions, and the density of neighborhood development along the 
corridor near a crossing.
    After considering all the comments received and evaluating the 
potential benefits and consequences of allowing States to define ``high 
risk'' grade crossings for themselves, FRA determined that the comments 
provided by AFL-CIO, Mr. James, and AAR have merit. Accordingly, in 
this final rule, FRA has revised proposed paragraph (e)(1)(iii) of this 
section to include a list of key factors that States are required to 
consider in their Action Plans when identifying ``high-risk'' crossings 
under paragraph (e)(1)(iii) of this section. These key factors in 
paragraph (e)(1)(iii) include the average annual daily traffic, the 
total number of trains per day that travel through the crossing, the 
total number of motor vehicle collisions that have occurred at the 
crossing during the previous 5-year period, the number of main railroad 
tracks at the crossing, the number of roadway lanes at the crossing, 
sight distance and roadway geometry at the crossing, and maximum 
timetable speed at the crossing.
    FRA notes that the key factors listed in paragraph (e)(1)(iii) are 
minimum factors a State must consider if defining high-risk crossings 
under paragraph (e)(1)(iii). Therefore, FRA encourages States to 
consider any other factors that may be present at a particular crossing 
that may increase the risk of an accident/incident. Examples of 
potential additional factors a State may find useful to consider 
include: The volume and nature of any hazardous materials transported 
through the crossing, the frequency of any passenger trains traveling 
through the crossing, and the proximity of a school or emergency 
service provider, which could cause a high number of school buses or 
emergency service vehicles to travel through the grade crossing. AFL-
CIO asserted in its comments that increased pedestrian volume may 
increase opportunities for an accident, while AAR identified the 
density of neighborhood development along the corridor near the 
crossing as a factor that can contribute to high risk levels at a GX.
    When evaluating these risk factors and the overall risk levels at 
individual GXs and PXs under paragraph (e)(1)(iii), FRA recommends 
States consider the definition of ``risk'' provided in 49 CFR 270.5 and 
271.5, in which the term ``risk'' is defined as ``the combination of 
the probability (or frequency of occurrence) and the consequence (or 
severity) of a hazard.'' FRA also recommends that States describe the 
process or formula used to assess risk at each crossing in their Action 
Plans. However, to obtain information about all the factors considered 
by States when identifying GXs and PXs in their Action Plans as ``high 
risk,'' paragraph (e)(1)(iii) requires States that identify ``high 
risk'' crossings under paragraph (e)(1)(iii) to include in their Action 
Plans the complete list of factors considered in making this 
determination.
    As proposed in the NPRM, paragraph (e)(2) requires States to 
identify the data sources used to categorize the GXs and PXs in their 
Action Plans. To help States identify GXs and PXs that have experienced 
recent accident/incidents, multiple accident/incidents, or are at high-
risk for accident/incidents, FRA will provide GX and PX accident/
incident data to States upon request. FRA will also assist State 
agencies electing to use FRA's Office of Safety Analysis website to 
generate customized reports of GX accident/incident data.
    In the NPRM, paragraph (e)(3) would require States to discuss 
specific strategies to improve safety at the identified crossings over 
a period of at least five years. FRA received a number of comments on 
this proposed minimum five-year time period, and for the reasons 
discussed below, FRA is revising proposed paragraph (e)(3) to provide 
for a minimum time period of four years.
    The departments of transportation for Idaho, Montana, North Dakota, 
South Dakota, and Wyoming submitted comments noting that Congress 
established planning requirements in the Intermodal Surface 
Transportation Efficiency Act of 1991 (ISTEA), the Transportation 
Equity Act for the 21st Century (TEA-21), and the Safe Accountable 
Flexible Efficient Transportation Equity: A Legacy for Users Act 
(SAFETEA-LU) directing the State Transportation Improvement Program 
(STIP) to span four years. Accordingly, these State DOTs recommended 
that FRA allow States to align the time frame covered by their Action 
Plans with the four-year STIP time frame, but not require them to do 
so. The Alaska DOT&PF, on the other hand, submitted comments supporting 
the proposed five-year minimum time period. Alaska DOT&PF noted that 
some States are not able to insert grade separations or rail 
realignment projects into fiscally constrained STIPs.
    After consideration of these comments, FRA has concluded that

[[Page 80654]]

providing the flexibility for State Action Plans to cover a minimum 
four-year time period for consistency with other surface transportation 
planning requirements is justified. Accordingly, FRA is revising 
proposed paragraph (e)(3) to provide that State Action Plans must 
discuss specific strategies to improve safety at the identified 
crossings over a period of ``at least four years.'' FRA intends this 
change to facilitate integration of the Action Plans required by this 
final rule with existing State planning mechanisms and documents (e.g., 
STIPs, SHSPs, and State Rail Plans). However, nothing in this final 
rule restricts States from including specific strategies to improve 
crossing safety in their Action Plans for a period longer than four 
years.
    AAR also submitted comments on paragraph (e)(3), recommending FRA 
clarify that, prior to making any changes to address blocked crossing 
concerns that could impact train operations, States must consult with 
the railroad primarily responsible for dispatching trains through the 
crossing as indicated by the name of the railroad on the Emergency 
Notification System (ENS) sign. FRA expects that States seeking to make 
changes to address blocked crossing concerns will, at a minimum, 
coordinate with the railroad primarily responsible for dispatching 
trains through the highway-rail or pathway grade crossing prior to 
making any changes that could impact train operations. Depending on the 
type of change envisioned, the State should contact the railroad 
primarily responsible for maintaining the highway-rail or pathway grade 
crossing (if different from the railroad primarily responsible for 
dispatching trains through the crossing) as well. However, a 
requirement that States must consult with railroads prior to 
implementing certain types of strategies in their Action Plans to 
address blocked crossing concerns falls beyond the scope of this 
rulemaking.
    FRA also received comments on paragraph (e)(3) from Washington UTC 
staff, SDDOT, as well as the departments of transportation for Idaho, 
Montana, North Dakota, and Wyoming. In their comments, these State 
agencies recommended that the final rule include language allowing 
States to discuss the types of grade crossing improvement projects they 
will address and emphasize, as opposed to requiring States to identify 
specific projects to be undertaken. The departments of transportation 
for Idaho, Montana, North Dakota, South Dakota, and Wyoming asserted 
that this approach would allow States to set forth policy priorities in 
their Action Plans. FRA agrees that States should not be required to 
identify specific projects to be undertaken. Therefore, while FRA 
encourages States to identify specific projects that they may wish to 
highlight in their Action Plans, FRA would like to clarify that this 
final rule does not require project identification.
    Given Section 11401's mandate that FRA prepare and submit a report 
to Congress within three years of issuing this final rule, FRA notes 
that it intends to evaluate each Action Plan to assess whether it 
provides sufficient information to inform Congress of specific 
strategies that will be implemented (or continue to be implemented) by 
individual States to improve GX safety. To this end, FRA agrees with 
CRST's comments that FRA should anticipate its reporting obligations to 
Congress, and during FRA's review of Action Plans, disapprove any plans 
that are not objective, observable, and measurable.
    FRA received comments from multiple State agencies, including 
Washington UTC staff, SDDOT, and departments of transportation for 
Idaho, Montana, North Dakota, and Wyoming, recommending that the final 
rule include language providing for Action Plans to be considered 
deficient only if they are inconsistent with statutory requirements, so 
that modest deficiencies in regulatory planning or paperwork will not 
prohibit safety investments. While de minimis deficiencies in paperwork 
should not lead to an Action Plan being rejected, FRA disagrees with 
the recommendation to consider Action Plans deficient only if they are 
inconsistent with statutory requirements. Section 11401 specifically 
mandates that FRA issue a rule requiring States to develop and 
implement Action Plans that meet certain requirements. The regulatory 
requirements in this final rule respond to that mandate and enable the 
effective and consistent implementation of the statutory requirements 
in Section 11401. For example, paragraph (e)(4) of this section 
requires States to provide an implementation timeline for the 
strategies identified in their Action Plans. Although not specifically 
required by Section 11401, this requirement is designed to help ensure 
States implement the strategies identified in their Action Plans 
effectively.
    As for the requirement in paragraph (e)(3) of this section, which 
requires States discuss specific strategies for improving GX and PX 
safety, CRST submitted comments recommending that FRA insist that 
States incorporate the safety of pedestrians (at crossings and along 
the railroad right-of-way) into their Action Plans. In support of this 
recommendation, CRST asserted that over the long term, pedestrian 
fatalities at grade crossings have not demonstrated a decreasing trend 
like vehicle occupant fatalities at GXs. Similarly, with respect to 
proposed crossing closure projects, CRST stated that care must be taken 
to ensure that closure of the grade crossing will not result in 
increased trespassing along the railroad right-of-way.
    FRA agrees that States should incorporate the safety of pedestrians 
at GXs and PXs into their Action Plans. For example, the FAST Act 
requires States to consider crossing closures and grade separation 
projects. Therefore, to avoid introducing new or increased risk, FRA 
expects any State contemplating crossing-closure and/or grade-
separation projects will evaluate not only the potential reduction in 
risk to motor vehicle occupants from the closure or separation project, 
but also the potential impact on trespassing at the location of any 
crossing slated for closure.
    CRST also urged FRA to consider making additional changes in this 
final rule to address suicides that occur at crossings and along 
railroad rights-of-way. For example, CRST recommended that FRA insist 
that State Action Plans include efforts to reduce suicides at grade 
crossings, as well as along the railroad right-of-way, in areas in 
which suicides appear to be a significant problem. If a State has 
experienced a high number of suicides at one or more GXs or PXs, this 
final rule provides the flexibility for that State to develop and 
include in its Action Plan specific strategies to address the issue. 
FRA encourages any State that has experienced a high number of suicides 
at particular grade crossings to include specific strategies in its 
Action Plan to address suicides at those crossings.
    CRST asserted that FRA's decision not to include suicide data in 
FRA's periodic summaries of rail-related injuries and illnesses 
associated with railroad operations may dissuade States from addressing 
suicides that occur at crossings and along the railroad right-of-way. 
Therefore, CRST recommended that FRA amend 49 CFR 225.41 (Suicide data) 
to allow (or require) FRA to report all deaths in FRA's summaries of 
``total fatalities.'' In addition, a resident of Chicago, Illinois 
urged FRA to develop a mechanism in the final rule that would require 
railroads to release video obtained from their outward-facing 
locomotive cameras to State coroners and law enforcement officials upon

[[Page 80655]]

request, to facilitate State efforts to determine accurately the cause 
of death. Although FRA appreciates these comments and suggestions, both 
are outside the scope of the statutory authority for this rulemaking. 
FRA does, however, maintain several online resources that provide 
access to FRA's railroad trespassing data, including certain data 
related to suicides. One such resource, FRA's Trespass and Suicide 
Dashboard, allows users to interact visually with trespass and suicide 
data collected by FRA. Therefore, FRA encourages entities seeking to 
view FRA data on fatalities that occur at GXs (as defined in 49 CFR 
234.5), as well as fatalities that occur along railroad rights-of-way, 
to visit our Trespass and Suicide Dashboard, which is accessible online 
through FRA's website. In addition, FRA notes that it has an ongoing 
rulemaking on Locomotive Image and Audio Recording Devices for 
Passenger Trains to implement a Congressional mandate.\7\
---------------------------------------------------------------------------

    \7\ 84 FR 35712 (July 24, 2019); 49 U.S.C. 20168.
---------------------------------------------------------------------------

    In adopting paragraph (e)(4), FRA has corrected a typographical 
error in the proposed rule. Paragraph (e)(4) requires States to provide 
an implementation timeline for the specific strategies they develop to 
improve safety at the GXs identified in their Action Plans. In the 
proposed rule, FRA erroneously indicated that the proposed requirement 
to discuss these specific strategies in the State Action Plans was 
contained in paragraph (d)(2) of this section. To correct this error, 
paragraph (e)(4) in the final rule requires States to provide an 
implementation timeline for ``the strategies discussed in paragraph 
(e)(3) of this section.''
    As proposed in the NPRM, paragraph (e)(5) requires each State and 
DC to designate an official responsible for managing implementation of 
the Action Plan. As noted earlier, FRA will create a secure document 
submission site that States can use to upload Action Plans. The 
official designated under this paragraph will be given primary user 
access to the secure document submission site, as well as the authority 
to grant access to secondary users. Accordingly, the designated State 
official will need to register with FRA to gain primary user access to 
the secure document submission site.
    Paragraph (f) of this section requires States and DC to provide 
contact information for their designated officials, so they can be 
invited to set up primary user accounts.
    Paragraph (f)(2) also requires each State and DC to notify FRA if a 
new official is subsequently designated to manage implementation of its 
Action Plan and to provide contact information for the new designated 
official. FRA has modified paragraph (f)(2) from that proposed in the 
NPRM in response to comments submitted by the Alaska DOT&PF 
recommending that FRA not adopt the proposed requirement for States to 
maintain updated contact information. Alaska DOT&PF asserted that the 
proposed requirement was too onerous, especially for a one-time plan 
with no ongoing reporting requirement.
    FRA agrees that an ongoing requirement to maintain current contact 
information for State Action Plans for many years seems unnecessary, 
given the absence of any requirement to update the plan. Therefore, FRA 
has modified paragraph (f)(2) from that proposed in the NPRM to limit 
the period of time States are required to maintain current contact 
information for their Action Plans to a four-year period after 
publication of this final rule. This requirement will help ensure FRA 
has current contact information while States implement their Action 
Plan strategies in accordance with their implementation timelines. This 
requirement will also help ensure FRA has current contact information 
available when FRA prepares the required report to Congress, while 
limiting the burden on States.
    Paragraph (g) of this section sets forth FRA's review and approval 
process for Action Plans. As provided in paragraph (g)(1), FRA will 
update its website to reflect receipt of each new, updated, or 
corrected Action Plan. FRA encourages States to work with FRA staff as 
they develop their Action Plans. FRA will also offer webinars to assist 
States in developing and updating their Plans. As indicated in comments 
submitted by CRST, FRA's ability to provide technical assistance to 
States will help ensure States develop Action Plans that can be 
effectively evaluated and implemented.
    To avoid delaying implementation of needed grade crossing safety 
improvements, paragraph (g)(2)(i) states that FRA will conduct a 
preliminary review of each new, updated, and corrected Action Plan 
within sixty (60) days of receipt. During this 60-day review period, 
FRA will determine whether a submitted plan has adequately addressed 
the elements prescribed in paragraph (e) of this section.
    FRA acknowledges comments received on ways to improve the proposed 
review process for Action Plans. Washington UTC staff, and the 
departments of transportation for Idaho, Montana, North Dakota, South 
Dakota, and Wyoming recommended that FRA establish a staggered timeline 
for States to submit their Action Plans, in which States with the 
highest number of grade crossing accidents would be required to submit 
their plans first. Similarly, VTrans submitted comments recommending 
that the final rule allow States to submit their Action Plans at the 
same time that they submit their SHSPs (which are generally submitted 
in staggered, 5-year cycles).
    FRA does not have the flexibility to allow for a staggered timeline 
or cycle for submitting Action Plans to FRA for review and approval 
because Section 11401 requires FRA to report to Congress information 
about the Action Plans and their implementation within three years. 
However, as noted above, FRA will offer webinars and work closely with 
any State that desires the Agency's assistance in developing its Action 
Plan. This involvement from FRA should help ensure the efficiency of 
the plan review process.
    FRA anticipates that States with a high number of grade crossing 
accident/incidents will submit Action Plans that are more detailed than 
those of States with a low number of grade crossing accident/incidents. 
In this regard, FRA agrees with comments submitted by CRST and all 
Action Plans submitted under this regulation will be carefully 
reviewed. DelDOT commented that FRA's proposed review process would 
create confusion among State officials who may not feel confident 
implementing their Action Plans until more than 120 days have passed 
from the date of FRA's receipt of their plans. Alaska DOT&PF 
recommended that FRA include FHWA in the review and approval process 
for Action Plans, given the potential need for Federal aid highway 
funding to implement the strategies identified by States in their 
Action Plans.
    Accordingly, in adopting paragraph (g)(2)(ii), FRA is clarifying 
that Action Plans will be considered conditionally approved sixty (60) 
days after receipt by FRA unless FRA notifies the State's designated 
point of contact that the Action Plan is incomplete or deficient. 
Therefore, if a State has not been notified that its Action Plan is 
incomplete or deficient, a State may proceed with implementation of its 
Action Plan after 60 days have elapsed from the date of FRA's receipt 
of its plan. In addition, States may verify the review status of their 
Action Plans by checking FRA's website or contacting FRA.
    Paragraph (g)(2)(iii) states that FRA reserves the right to conduct 
a more comprehensive review of each ``new, updated, or corrected'' 
Action Plan,

[[Page 80656]]

which may take up to 120 days to complete. In addition, FRA will 
continue to consult and coordinate with FHWA during FRA's review of 
Action Plans.
    Paragraph (g)(3) specifically addresses Action Plans that FRA 
determines to be incomplete or deficient. As reflected in paragraph 
(g)(3)(i), if FRA finds a submitted Action Plan is incomplete or 
deficient, it will notify the appropriate designated official via email 
of the specific areas in which the plan is deficient or incomplete.
    Paragraph (g)(3)(ii) requires States and DC to complete, correct, 
and resubmit within 60 days any Action Plan that FRA deems incomplete 
or deficient. This 60-day timeframe is derived from Section 
11401(b)(7), which directs States to complete their Action Plans and 
correct deficiencies identified within 60 days of the date of FRA 
notification.
    FRA received a number of comments from State agencies on the 60-day 
correction period contained in paragraph (g)(3)(ii), including comments 
from SDDOT, Washington UTC staff, and the departments of transportation 
for Idaho, Montana, North Dakota, and Wyoming, recommending that FRA 
include a provision in the final rule to allow States to request an 
extension of time to correct any deficiencies identified during FRA's 
review of their Action Plans, if additional time is needed to rectify 
them. Similarly, Alaska DOT&PF submitted comments recommending that the 
final rule allow at least 120 days for States to correct any 
deficiencies identified during FRA's review of their Action Plans.
    FRA has not, however, established a separate process in this final 
rule that would allow a State to request additional time to correct 
deficiencies identified during FRA's review of its Action Plan. While 
FRA is sympathetic to the concerns expressed by these State agencies, 
Section 11401(b) directs States to correct deficiencies identified and 
resubmit their Action Plans within 60 days from the date on which FRA 
notifies them of the deficiencies. In addition, this 60-day correction 
period is twice as long as the 30-day period within which the initial 
ten States were required to correct any deficiencies identified in 
their Action Plans. Therefore, FRA has not expanded the 60-day 
correction period mandated by Section 11401(b). Nonetheless, as 
previously discussed, FRA intends to provide webinars and technical 
assistance to State agencies during the 14-month period between the 
publication date of this final rule and the submission deadline for 
State Action Plans to help ensure efficiency in their development and 
review.
    As provided in paragraph (g)(4)(i), after FRA has completed its 
review and approves a new, updated, or corrected Action Plan, FRA will 
notify the State's designated official described in paragraph (e)(5) by 
email that the Action Plan has been fully approved.
    Paragraph (g)(4)(ii) states that FRA will make each fully-approved 
Action Plan publicly available for online viewing. This provision is 
intended to comply with Section 11401(b)(4)'s requirement that the FRA 
Administrator make each approved Action Plan publicly available on ``an 
official internet website.'' In addition, to avoid confusion, FHWA will 
remove the original Action Plans submitted by the initial ten States 
from its website.
    As provided in paragraph (g)(4)(iii), each State and DC are 
required to implement their Action Plans.
    Paragraph (h) of this section provides that the Secretary may 
condition the awarding of a rail improvement grant to a State or DC on 
the submission of an FRA-approved Action Plan under this section. This 
language reflects the authority specifically granted to the Secretary 
in Section 11401(b)(5).
    FRA received comments on the language in this paragraph from 
multiple State agencies. Washington UTC staff, SDDOT, and the 
departments of transportation for Idaho, Montana, North Dakota, and 
Wyoming submitted joint comments expressing concern that conditioning 
the awarding of highway-rail crossing funding or grants on having an 
approved plan is a risky approach that may impede important safety 
improvements that can save lives and reduce collisions. The departments 
of transportation for Idaho, Montana, North Dakota, South Dakota, and 
Wyoming also noted that State highway-rail crossing project selection 
should not be restricted solely by a State's FRA-approved Action Plan 
because safety, feasibility, engineering judgment, and other factors 
must also be considered.
    FRA agrees that a State's selection of highway-rail crossing 
improvement projects should not be exclusively limited to the highway-
rail crossing improvement projects that are specifically identified in 
the State's FRA-approved Action Plan. However, FRA believes a properly 
prepared Action Plan identifying GXs and PXs where recent accidents 
have occurred, or that a State characterizes as ``high-risk,'' can 
inform project selection. During FRA's review of applications for grant 
funding, FRA often looks for evidence of advance planning and 
identification of crossing safety needs through data-based risk 
analysis. Therefore, by discussing specific projects in their Action 
Plans, as well as the data sources used to identify safety needs that 
will be addressed by these projects, States can use their Action Plans 
as a vehicle for providing evidence of advance planning and data-based 
crossing risk analysis.

Section 234.301 Definitions

    As noted in the discussion of Sec.  234.5 above, in this final 
rule, FRA is removing the definition of ``pathway grade crossing'' from 
the list of definitions in Sec.  234.301 (which applies only to FRA's 
Emergency Notification System regulations in subpart C to 49 CFR part 
234). As previously discussed, by removing the definition of ``pathway 
grade crossing'' from Sec.  234.301 and moving it to Sec.  234.5, the 
definition of ``pathway grade crossing'' will now apply to all of FRA's 
grade crossing regulations in 49 CFR part 234.

IV. Regulatory Impact and Notices

A. Executive Order 12866, Congressional Review Act, and DOT Regulatory 
Policies and Procedures

    This final rule is not a significant regulatory action within the 
meaning of Executive Order 12866, ``Regulatory Planning and Review,'' 
and DOT's Administrative Rulemaking, Guidance, and Enforcement 
Procedures in 49 CFR part 5. Pursuant to the Congressional Review 
Act,\8\ the Office of Information and Regulatory Affairs designated 
this rule as not a ``major rule,'' as defined by 5 U.S.C. 804(2). 
Details on the estimated cost of this rule can be found in the 
Regulatory Evaluation, which FRA has prepared and placed in the docket 
(docket number FRA-2018-0096).
---------------------------------------------------------------------------

    \8\ 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------

    The purpose of the final rule is to reduce accident/incidents at 
GXs and PXs nationwide. The final rule requires each State and DC to 
submit or re-submit to FRA an Action Plan. The final rule also requires 
each of the 10 States that previously created an FRA-approved Action 
Plan to submit a report to FRA that describes how the State implemented 
its existing Plan and how the State will continue to reduce GX and PX 
safety risks.
Costs
    The final rule specifically lists the required elements for Plans. 
To minimize the compliance costs, the final rule affords each State the 
flexibility to develop or update an Action Plan based upon the 
individual State's hazard assessment.

[[Page 80657]]

    Section 11401(a) required FRA to develop and distribute a model 
State Action Plan. In conjunction with FHWA, FRA developed a ``Highway-
Railway Grade Crossing Action Plan and Project Prioritization 
Noteworthy Practices Guide.'' FRA shared this guide with States via 
letters that included the data requirements as discussed in Section 
11401. The guide is currently available on DOT's website. In addition, 
previous Action Plans from the 2010 final rule have also been made 
available to the public on DOT's website. After issuing this final 
rule, FRA will provide States with assistance in developing their 
Action Plans.
    Table 1 shows the costs associated with the final rule. The largest 
costs for the 10 States that have already developed an FRA-approved 
Action Plan are: Updating and submitting an Action Plan to FRA; 
submitting a report to FRA that describes how the previously approved 
Action Plan was implemented; and resubmitting (if necessary) an Action 
Plan if FRA determines the State's updated Action Plan submission to be 
incomplete. Collectively, the largest costs for the other 40 States and 
DC are: Developing and submitting an Action Plan to FRA; and 
resubmitting (if necessary) an Action Plan if FRA determines the 
State's previous Action Plan submission to be incomplete.
    As shown in Table 1, the final rule will result in a total cost of 
$1.0 million (PV, 7%), and $1.1 million (PV, 3%).
---------------------------------------------------------------------------

    \9\ Numbers rounded to the nearest 1,000.

                                                     Table 1--Cost Summary, Discounted at 7% and 3%
                                                                   [2017 dollars] \9\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           States updating existing plan     States creating new plan               All states
                          Costs                          -----------------------------------------------------------------------------------------------
                                                                7%              3%              7%              3%              7%              3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Develop or Update Action plan...........................        $350,000        $364,000        $580,000        $602,000        $930,000        $966,000
Submitting Report to FRA................................          57,000          59,000  ..............  ..............          57,000          59,000
Resubmit Action Plan....................................          17,000          18,000          24,000          25,000          41,000          43,000
Government Admin. Costs.................................  ..............  ..............  ..............  ..............          20,000          21,000
                                                         -----------------------------------------------------------------------------------------------
    Total Cost..........................................         424,000         441,000         604,000         627,000       1,048,000       1,089,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

    FRA assumes that all costs will be incurred in the first year of 
analysis. The costs that are derived from the analysis do not include 
the costs of voluntary changes in investments or operations that States 
will make when implementing their Action Plans.
Benefits
    This analysis discusses the non-quantifiable benefits associated 
with this final rule. FRA expects that States developing and 
implementing Action Plans may improve the way they allocate resources 
for GX and PX mitigation efforts. The final rule's primary benefit will 
come from a reduction in the number of GX and PX accident/incidents and 
the associated decrease in fatalities, injuries, and property damage, 
as well as diminished environmental impacts. Last, FRA anticipates that 
Action Plans may also reduce accident severity, as some States may 
develop and implement Action Plans that focus efforts on mitigating 
accident/incidents that are more likely to result in fatalities.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 \10\ (RFA) and Executive 
Order 13272 \11\ require agency review of proposed and final rules to 
assess their impacts on small entities. When an agency issues a 
rulemaking proposal, the RFA requires the agency to ``prepare and make 
available for public comment an initial regulatory flexibility 
analysis'' that will ``describe the impact of the proposed rule on 
small entities.'' \12\ Section 605 of the RFA allows an agency to 
certify a rule, in lieu of preparing an analysis, if the proposed 
rulemaking is not expected to have a significant economic impact on a 
substantial number of small entities.
---------------------------------------------------------------------------

    \10\ 5 U.S.C. 601 et seq.
    \11\ 67 FR 53461, Aug. 16, 2002.
    \12\ 5 U.S.C. 603(a).
---------------------------------------------------------------------------

    In the proposed rule, FRA identified 51 entities (the 50 States and 
DC) that will be affected by the rule. Each of the 50 States and DC 
have a population greater than 50,000. Therefore, FRA certified that 
the rule would not have a significant economic impact on a substantial 
number of small entities. FRA received no comments regarding the 
certification.
    The Administrator of FRA hereby certifies that this final rule will 
not have a significant economic impact on a substantial number of small 
entities.

C. Federalism

    Executive Order 13132, ``Federalism,'' \13\ 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 governments 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.
---------------------------------------------------------------------------

    \13\ 64 FR 43255, Aug. 10, 1999.
---------------------------------------------------------------------------

    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. FRA has determined 
that the final rule will not have substantial direct effects 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, FRA has determined that this 
final rule, which complies with a statutory mandate, will not have 
federalism implications that impose substantial direct compliance costs 
on State and local governments. Therefore, the consultation and funding 
requirements

[[Page 80658]]

of Executive Order 13132 do not apply, and preparation of a federalism 
summary impact statement for this final rule is not required.

D. Paperwork Reduction Act

    The information collection requirements in this rule are being 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995.\14\ The sections that 
contain the information collection requirements and the estimated time 
to fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \14\ 44 U.S.C. 3501 et seq.
    \15\ The proposed burdens for Sec. Sec.  234.11(d), (e), and 
(f)(1) are covered under Sec. Sec.  234.11(b) and (c)(1) and (2).
    \16\ Based on input from FRA subject matter experts and feedback 
from States, the 40 States and DC that currently do not have an FRA-
approved Action Plan are grouped into four burden levels: High, 
medium, and low, and minimal burden. For the 10 States, they are 
grouped into three burden levels: High, medium, and low.
    \17\ An hourly compensation rate of $61.20 was used to calculate 
the total cost equivalent.

----------------------------------------------------------------------------------------------------------------
                                                                   Average time                     Total cost
       CFR section \15\           Respondent      Total annual    per  responses   Total annual     equivalent
                                   universe        responses           \16\        burden hours        \17\
----------------------------------------------------------------------------------------------------------------
234.11(b)--State Action        40 States + DC.  1.3 plans + 2.3  700 hours + 550           3,377        $206,672
 Plans--Development and                          plans + 4        hours + 200
 submission of new Action                        plans + 6        hours + 60
 Plans (40 States + DC).                         plans.           hours.
    --(c)(1) Updated Action    10 States......  1 plan + 1 plan  1,100 hours +             2,040         124,848
     Plans (10 listed States                     + 1.3 plans.     640 hours +
     in Sec.   234.11(e)).                                        225 hours.
    --(c)(2) Implementation    10 States......  1 report + 1     160 hours + 120             333          20,380
     reports (10 listed                          report + 1.3     hours +.
     States in Sec.                              reports.        40 hours.......
     234.11(e)).
    --(f)(2) Notification to   50 States + DC.  2.7              5 minutes......              .3              20
     FRA by State or DC of                       notifications.
     another official to
     assume responsibilities
     described under Sec.
     234.11(e)(6).
    --(g) FRA review and       40 States + DC.  .7 plans + .7    105 hours + 60              142           8,690
     approval of State Action                    plans + 1.3      hours + 24
     Plans: Disapproved plans                    plans.           hours.
     needing revision (40
     States + DC).
    --(g) FRA review and       10 States......  .3 plans + .3    165 hours + 96               98           6,016
     approval of State Action                    plans + .3       hours + 34
     Plans: Disapproved plans                    plans.           hours.
     needing revision (10
     listed states in Sec.
     234.11(e)).
                              ----------------------------------------------------------------------------------
        Total................  N/A............  27 plans,        N/A............           5,991         366,627
                                                 reports, and
                                                 notifications.
----------------------------------------------------------------------------------------------------------------

    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 Ms. Hodan Wells, 
Information Collection Clearance Officer, at 202-493-0440. 
Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them via email to 
Ms. Wells at Hodan.Wells@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this 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 is not authorized to 
impose a penalty on persons for violating information collection 
requirements that do not display a current OMB control number, if 
required. The current OMB control number for 49 CFR 234.11 is 2130-
0589.

E. Environmental Impact

    FRA has evaluated this final rule consistent with the National 
Environmental Policy Act (NEPA),\18\ the Council of Environmental 
Quality's NEPA implementing regulations,\19\ and FRA's NEPA 
implementing regulations \20\ and determined that it is categorically 
excluded from environmental review and therefore does not require the 
preparation of an environmental assessment (EA) or environmental impact 
statement (EIS). Categorical exclusions (CEs) are actions identified in 
an agency's NEPA implementing regulations that do not normally have a 
significant impact on the environment and therefore do not require 
either an EA or EIS.\21\ Specifically, FRA has determined that this 
final rule is categorically excluded from detailed environmental review 
pursuant to 23 CFR 771.116(c)(15), ``[p]romulgation of rules, the 
issuance of policy statements, the waiver or modification of existing 
regulatory requirements, or discretionary approvals that do not result 
in significantly increased emissions of air or water pollutants or 
noise.''
---------------------------------------------------------------------------

    \18\ 42 U.S.C. 4321 et seq.
    \19\ 40 CFR parts 1500 through 1508.
    \20\ 23 CFR part 771.
    \21\ 40 CFR 1508.4.
---------------------------------------------------------------------------

    The purpose of this rulemaking is to revise FRA's State Action Plan 
requirements as mandated by the FAST Act. This rule does not directly 
or indirectly impact any environmental resources and will not result in 
significantly increased emissions of air or water pollutants or noise. 
Instead, the final rule is likely to result in safety benefits. In 
analyzing the applicability of a CE, FRA must also consider whether 
unusual circumstances are present that would warrant a more detailed 
environmental review.\22\ FRA has concluded that no such unusual 
circumstances exist with respect to this final regulation and it meets 
the requirements for categorical exclusion under 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

    \22\ 23 CFR 771.116(b).
---------------------------------------------------------------------------

    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties.\23\ FRA has also 
determined that this rulemaking does not approve a project resulting in 
a use of a resource protected by Section 4(f).\24\
---------------------------------------------------------------------------

    \23\ 16 U.S.C. 470.
    \24\ Department of Transportation Act of 1966, as amended (Pub. 
L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------

F. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a) \25\ require DOT agencies to achieve environmental 
justice as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and

[[Page 80659]]

economic effects, of their programs, policies, and activities on 
minority populations and low-income populations.
    The DOT Order instructs DOT agencies to address compliance with 
Executive Order 12898 and requirements within the DOT Order in 
rulemaking activities, as appropriate. FRA has evaluated this final 
rule under Executive Order 12898 and the DOT Order and has determined 
it would not cause disproportionately high and adverse human health and 
environmental effects on minority populations or low-income 
populations.
---------------------------------------------------------------------------

    \25\ 91 FR 27534 (May 10, 2012).
---------------------------------------------------------------------------

G. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 
1995,\26\ 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 such regulations incorporate requirements specifically set forth 
in law.) Section 202 of the Act \27\ 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 the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of 
$100,000,000 or more (adjusted annually for inflation) 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 $100,000,000 or more in any one year 
and thus preparation of such a statement is not required.
---------------------------------------------------------------------------

    \26\ Public Law 104-4, 2 U.S.C. 1531 et seq.
    \27\ 2 U.S.C. 1532.
---------------------------------------------------------------------------

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' \28\ 
FRA evaluated this final rule in accordance with Executive Order 13211 
and determined that this regulatory action is not a ``significant 
energy action'' within the meaning of the Executive order.
---------------------------------------------------------------------------

    \28\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

    Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth,'' requires Federal agencies to review regulations to determine 
whether they potentially burden the development or use of domestically 
produced energy resources, with particular attention to oil, natural 
gas, coal, and nuclear energy resources.\29\ FRA determined this final 
rule will not burden the development or use of domestically produced 
energy resources.
---------------------------------------------------------------------------

    \29\ 82 FR 16093 (Mar. 31, 2017).
---------------------------------------------------------------------------

List of Subjects in 49 CFR Part 234

    Highway safety, Penalties, Railroad safety, Reporting and 
recordkeeping requirements, State and local governments.

The Final Rule

    For the reasons discussed in the preamble, FRA is amending part 234 
of chapter II, subtitle B of title 49, Code of Federal Regulations, as 
follows:

PART 234--GRADE CROSSING SAFETY

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

    Authority: 49 U.S.C. 20103, 20107, 20152, 20160, 21301, 21304, 
21311; Sec. 11401, Div. A, Pub. L. 114-94, 129 Stat. 1679 (49 U.S.C. 
22501 note); and 49 CFR 1.89.


0
2. In Sec.  234.1, revise and republish paragraph (a) to read as 
follows:


Sec.  234.1   Scope.

    (a) This part prescribes minimum--
    (1) Maintenance, inspection, and testing standards for highway-rail 
grade crossing warning systems;
    (2) Standards for the reporting of failures of highway-rail grade 
crossing warning systems and for the actions that railroads must take 
when such systems malfunction;
    (3) Requirements for certain identified States to update their 
existing State highway-rail grade crossing action plans and submit 
reports about the implementation of their existing plans and for the 
remaining States and the District of Columbia to develop State highway-
rail grade crossing action plans;
    (4) Requirements that certain railroads establish systems for 
receiving toll-free telephone calls reporting various unsafe conditions 
at highway-rail grade crossings and pathway grade crossings, and for 
taking certain actions in response to those calls; and
    (5) Requirements for reporting to, and periodically updating 
information contained in, the U.S. DOT National Highway-Rail Crossing 
Inventory for highway-rail and pathway crossings.
* * * * *

0
3. Revise Sec.  234.5 by adding in alphabetical order definitions of 
``Accident/incident,'' ``Pathway grade crossing,'' and ``State highway-
rail grade crossing action plan or Action Plan'' to read as follows:


Sec.  234.5   Definitions.

    As used in this part:
    Accident/incident means any impact between railroad on-track 
equipment and a highway user at a highway-rail grade crossing or 
pathway grade crossing. The term ``highway user'' includes automobiles, 
buses, trucks, motorcycles, bicycles, farm vehicles, pedestrians, and 
all other modes of surface transportation motorized and un-motorized.
* * * * *
    Pathway grade crossing means a pathway that crosses one or more 
railroad tracks at grade and that is--
    (1) Explicitly authorized by a public authority or a railroad;
    (2) Dedicated for the use of non-vehicular traffic, including 
pedestrians, bicyclists, and others; and
    (3) Not associated with a public highway, road, or street, or a 
private roadway.
* * * * *
    State highway-rail grade crossing action plan or Action Plan means 
a document submitted to FRA for review and approval by a State of the 
United States (or the District of Columbia), which contains the 
elements required by Sec.  234.11(e) to address safety at highway-rail 
and pathway grade crossings.
* * * * *

0
 4. Revise Sec.  234.11 to read as follows:


Sec.  234.11   State highway-rail grade crossing action plans.

    (a) Purpose. The purpose of this section is to reduce accident/
incidents at highway-rail and pathway grade crossings nationwide by 
requiring States and the District of Columbia to develop or update 
highway-rail grade crossing action plans and implement them. This 
section does not restrict any other entity from adopting a highway-rail 
grade crossing action plan. This section also does not restrict any 
State or the District of Columbia from adopting a highway-rail grade 
crossing action plan with additional or more stringent requirements not 
inconsistent with this section.
    (b) New Action Plans. (1) Except for the 10 States identified in 
paragraph (c)(3) of this section, each State and the District of 
Columbia shall develop a State highway-rail grade crossing action plan 
that addresses each of the required

[[Page 80660]]

elements listed in paragraph (e) of this section and submit such plan 
to FRA for review and approval not later than February 14, 2022.
    (2) Each State and the District of Columbia shall submit its 
highway-rail grade crossing action plan electronically through FRA's 
website in Portable Document Format (PDF).
    (c) Updated Action Plan and implementation report. (1) Each of the 
10 States listed in paragraph (c)(3) of this section shall develop and 
submit to FRA for review and approval an updated State highway-rail 
grade crossing action plan that addresses each of the required elements 
listed in paragraph (e) of this section, not later than February 14, 
2022.
    (2) Each of the 10 States listed in paragraph (c)(3) of this 
section shall also develop and submit to FRA, not later than February 
14, 2022, a report describing:
    (i) How the State implemented the State highway-rail grade crossing 
action plan that it previously submitted to FRA for review and 
approval; and
    (ii) How the State will continue to reduce highway-rail and pathway 
grade crossing safety risks.
    (3) The requirements of this paragraph (c) apply to the following 
States: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, 
Louisiana, Ohio, and Texas.
    (d) Electronic submission of updated Action Plan and implementation 
report. Each of the 10 States listed in paragraph (d)(2) of this 
section shall submit its updated highway-rail grade crossing action 
plan and implementation report electronically through FRA's website in 
PDF form.
    (e) Required elements for State highway-rail grade crossing action 
plans. Each State highway-rail grade crossing action plan described in 
paragraphs (b) and (c) of this section shall:
    (1) Identify highway-rail and pathway grade crossings that:
    (i) Have experienced at least one accident/incident within the 
previous 3 years;
    (ii) Have experienced more than one accident/incident within the 
previous 5 years; or
    (iii) Are at high-risk for accidents/incidents as defined in the 
Action Plan. Each State or the District of Columbia that identifies 
highway-rail and pathway grade crossings that are at high-risk for 
accidents/incidents in its Action Plan shall provide a list of the 
factors that were considered when making this determination. At a 
minimum, these factors shall include:
    (A) Average annual daily traffic;
    (B) Total number of trains per day that travel through each 
crossing;
    (C) Total number of motor vehicle collisions at each crossing 
during the previous 5-year period;
    (D) Number of main tracks at each crossing;
    (E) Number of roadway lanes at each crossing;
    (F) Sight distance (stopping, corner and clearing) at each 
crossing;
    (G) Roadway geometry (vertical and horizontal) at each crossing; 
and
    (H) Maximum timetable speed;
    (2) Identify data sources used to categorize the highway-rail and 
pathway grade crossings in paragraph (e)(1) of this section;
    (3) Discuss specific strategies, including highway-rail grade 
crossing closures or grade separations, to improve safety at those 
crossings over a period of at least four years;
    (4) Provide an implementation timeline for the strategies discussed 
in paragraph (e)(3) of this section; and
    (5) Designate an official responsible for managing implementation 
of the State highway-rail grade crossing action plan.
    (f) Point of contact for State highway-rail grade crossing action 
plans. (1) When the State or the District of Columbia submits its 
highway-rail grade crossing action plan or updated Action Plan and 
implementation report electronically through FRA's website, the 
following information shall be provided to FRA for the designated 
official described in paragraph (e)(5) of this section:
    (i) The name and title of the designated official;
    (ii) The business mailing address for the designated official;
    (iii) The email address for the designated official; and
    (iv) The daytime business telephone number for the designated 
official.
    (2) If the State or the District of Columbia designates another 
official to assume the responsibilities described in paragraph (e)(5) 
of this section before December 16, 2024, the State or the District of 
Columbia shall contact FRA and provide the information listed in 
paragraph (f)(1) of this section for the new designated official.
    (g) Review and approval. (1) FRA will update its website to reflect 
receipt of each new, updated, or corrected highway-rail grade crossing 
action plan submitted pursuant to this section.
    (2)(i) Within 60 days of receipt of each new, updated, or corrected 
highway-rail grade crossing action plan, FRA will conduct a preliminary 
review of the Action Plan to ascertain whether the elements prescribed 
in paragraph (e) of this section are adequately addressed in the plan.
    (ii) Each new, updated, or corrected State highway-rail grade 
crossing action plan shall be considered conditionally approved for 
purposes of this section sixty (60) days after receipt by FRA unless 
FRA notifies the designated official described in paragraph (e)(5) of 
this section that the highway-rail grade crossing action plan is 
incomplete or deficient.
    (iii) FRA reserves the right to conduct a more comprehensive review 
of each new, updated, or corrected State highway-rail grade crossing 
action plan within 120 days of receipt.
    (3) If FRA determines that the new, updated, or corrected highway-
rail grade crossing action plan is incomplete or deficient:
    (i) FRA will provide email notification to the designated official 
described in paragraph (e)(5) of this section of the specific areas in 
which the Action Plan is deficient or incomplete and allow the State or 
the District of Columbia to complete the plan and correct the 
deficiencies identified.
    (ii) Within 60 days of the date of FRA's email notification 
identifying the specific areas in which the highway-rail grade crossing 
action plan is incomplete or deficient, the State or District of 
Columbia shall correct all deficiencies and submit the corrected State 
highway-rail grade crossing action plan to FRA for approval. The 
corrected highway-rail grade crossing action plan shall be submitted 
electronically through FRA's website in PDF format.
    (4)(i) When a new, updated, or corrected State highway-rail grade 
crossing action plan is fully approved, FRA will provide email 
notification to the designated official described in paragraph (e)(5) 
of this section.
    (ii) FRA will make each fully-approved State highway-rail grade 
crossing action plan publicly available for online viewing.
    (iii) Each State and the District of Columbia shall implement its 
fully-approved highway-rail grade crossing action plan.
    (h) Condition for grants. The Secretary of Transportation may 
condition the awarding of any grants under 49 U.S.C. ch. 244 on the 
State's or District of Columbia's submission of an FRA-approved State 
highway-rail grade crossing action plan under this section.


Sec.  234.301  [Amended]

0
5. Amend Sec.  234.301 by removing the definition of ``Pathway grade 
crossing.''


[[Page 80661]]


    Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator, Federal Railroad Administration.
[FR Doc. 2020-26064 Filed 12-11-20; 8:45 am]
BILLING CODE 4910-06-P


