State Highway-Rail Grade Crossing Action Plans
| Published date | 07 November 2019 |
| Record Number | 2019-24197 |
| Section | Proposed rules |
| Court | Federal Railroad Administration |
Federal Register, Volume 84 Issue 216 (Thursday, November 7, 2019)
[Federal Register Volume 84, Number 216 (Thursday, November 7, 2019)]
[Proposed Rules]
[Pages 60032-60040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24197]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 234
[Docket No. FRA-2018-0096, Notice No. 1]
RIN 2130-AC72
State Highway-Rail Grade Crossing Action Plans
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FRA is issuing this proposed rule in response to a mandate
from the Fixing America's Surface Transportation Act to issue a rule
requiring 40 States and the District of Columbia to develop and
implement highway-rail grade crossing action plans. This proposed rule
would also require the ten States previously required to develop
highway-rail grade crossing action plans by the Rail Safety Improvement
Act of 2008 and FRA's implementing regulation to update their plans and
to submit reports to FRA describing actions they have taken to
implement them.
DATES: Written comments must be received by January 6, 2020. FRA will
consider comments received after that date to the extent practicable.
ADDRESSES: You may submit comments on Docket No. FRA-2018-0096 by any
one of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments;
Mail: Docket Management Facility, U.S. DOT, 1200 New
Jersey Avenue SE, W12-140, Washington, DC 20590;
Hand Delivery: The Docket Management Facility is located
in Room W12-140, West
Building Ground Floor, U.S. DOT, 1200 New Jersey Avenue SE,
Washington, DC 20590, and open between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
Fax: 1-202-493-2251.
Instructions: All submissions must include the agency name, docket
name, and docket number or Regulatory Identification Number (RIN) for
this rulemaking (2130-AC72). All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
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 or visit the Docket
Management Facility described above.
FOR FURTHER INFORMATION CONTACT: Debra Chappell, Transportation
Specialist, Highway-Rail Crossing and Trespasser Programs Division,
Office of Safety Analysis, FRA, 1200 New Jersey Avenue SE, Washington,
DC 20590 (telephone: 202-493-6018); or Kathryn Gresham, Office of Chief
Counsel, FRA, 1200 New Jersey Avenue SE, Washington, DC 20590
(telephone: 202-493-6063).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Section-by-Section Analysis
III. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Determination
C. Federalism
D. Paperwork Reduction Act
E. International Trade Impact Assessment
F. Environmental Assessment
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Privacy Act
I. Executive Summary
This proposed rule would revise FRA's existing regulation on State
highway-rail grade crossing action plans (49 CFR 234.11) to require 40
States and the District of Columbia to develop and implement FRA-
approved highway-rail grade crossing action plans. The proposed rule
would also require the ten States previously required to develop
highway-rail grade crossing action plans by the Rail Safety Improvement
Act of 2008 (RSIA) and FRA's implementing regulation at 49 CFR 234.11
to update their plans and to submit reports describing the actions they
have taken to implement their plans. FRA seeks comment on all aspects
of this proposal.
This rulemaking responds to the Fixing America's Surface
Transportation Act (Pub. L. 114-94) (FAST Act) mandate that the FRA
Administrator promulgate a regulation requiring States to develop,
implement (and update, if applicable) State highway-rail grade crossing
action plans. See section 11401 of the FAST Act. In the RSIA, Congress
directed the Secretary of Transportation to identify the ten States
that had the most highway-rail grade crossing collisions, on average,
over the previous three years, and require those States to develop
grade crossing action plans for the Secretary of Transportation's
approval. See section 202 of the RSIA. 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
highway-rail grade crossing accidents/incidents that occurred at public
and private grade crossings, FRA determined the
[[Page 60033]]
following ten States had the most reported highway-rail grade crossing
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 highway-rail grade crossing
action plans and submit them to FRA for approval (based on the
Secretary of Transportation's delegation of authority to the Federal
Railroad Administrator in 49 CFR 1.89). See 75 FR 36551 (June 28, 2010)
(codified at 49 CFR 234.11).
Section 11401 of the FAST Act tasks the FRA Administrator with
promulgating a regulation requiring these ten States to update the
highway-rail grade crossing 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 reports to FRA describing: (a) What the State did to
implement its previous highway-rail grade crossing action plan; and (b)
how the State will continue to reduce highway-rail grade crossing
safety risks. As for the other 40 States and the District of Columbia,
the FAST Act mandate also requires the FRA Administrator to promulgate
a regulation requiring them to develop and implement State highway-rail
grade crossing action plans. See FAST Act section 11401(b)(1)(B).
The FAST Act mandate contains specific requirements for the
contents of the highway-rail grade crossing action plans. As set forth
in section 11401(b)(2) of the FAST Act, each highway-rail grade
crossing safety plan must identify highway-rail grade crossings that:
(a) Have experienced recent highway-rail grade crossing accidents or
incidents; (b) have experienced multiple highway-rail grade crossing
accidents or incidents; or (c) are at high-risk for accidents or
incidents. Section 11401(b)(2) of the FAST Act further provides that
each highway-rail grade crossing action plan must identify specific
strategies for improving safety at highway-rail grade crossings,
including highway-rail grade crossing closures or grade separations.
Each State highway-rail grade crossing action plan must also designate
a State official responsible for managing implementation of the plan.
See FAST Act section 11401(b)(2).
The FAST Act mandate also contains requirements related to FRA's
review and approval of State highway-rail grade crossing action plans,
as well as requirements related to the publication of FRA-approved
plans. For example, when FRA approves a State's highway-rail grade
crossing action plan, section 11401(b)(4) of the FAST Act requires FRA
to make the approved plan publicly available on an ``official internet
website.''
If a State submits a highway-rail grade crossing action plan FRA
deems incomplete or deficient, section 11401(b)(6) of the FAST Act
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 1401(b)(8) of the FAST Act requires FRA to
post a notice on an ``official internet website'' that the State has an
incomplete or deficient highway-rail grade crossing 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, will be available to assist
States with developing, implementing, and updating their highway-rail
grade crossing action plans. For example, as further explained in the
Section-by-Section Analysis below, FRA will provide highway-rail grade
crossing accident/incident data to States upon request. FRA will also
assist State agencies who wish to use FRA's Office of Safety Analysis
website to generate customized reports of highway-rail grade crossing
accident/incident data.
Under 23 U.S.C 148, to receive certain highway funds, States are
required to implement highway safety improvement programs, which
implement their (continually updated) strategic highway safety plans, a
component of which is ``improvements to rail-highway grade crossings''
23 U.S.C. 148(d)(1)(B)(vii). Further, highway funding (23 U.S.C. 130)
is available to fund States' development of rail-highway grade crossing
plans (FAST Act Sec 11401(b)(5)) and the Secretary may also condition
rail improvement grants to States (49 U.S.C. 229) on the existence of
the plans.
II. Section-by-Section Analysis
Section 234.1 Scope
This section discusses the scope of part 234. FRA proposes to
revise 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.
Section 234.11 State Highway-Rail Grade Crossing Action Plans
Currently, paragraph (a) indicates the purpose of this section is
to reduce ``collisions'' at highway-rail grade crossings in the ten
States that have had the most highway-rail grade crossing collisions
from 2006-2008 (the ``initial ten States''). FRA proposes to revise
paragraph (a) to explain that the purpose of this section is to reduce
``accidents'' at highway-rail grade crossings ``nationwide by requiring
States and the District of Columbia to develop or update highway-rail
grade crossing action plans and implement them.'' (FRA proposes to
replace the term, ``collisions,'' with the term, ``accidents,'' for
consistency with the language of Section 11401(b) of the FAST Act.) As
proposed, this paragraph would continue to make clear, as the existing
language does, that this section would not restrict any other entity
from adopting a highway-rail grade crossing action plan, nor would it
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 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 the District of
Columbia; at the same time, FRA may also separately identify the
District of Columbia for clarity.
Proposed paragraph (b) would require 40 States and the District of
Columbia to develop individual State highway-rail grade crossing action
plans that address each of the required elements listed in paragraph
(e) and to submit their individual plans to FRA for review and approval
no later than one year after the final rule effective date.
FRA proposes to require States and the District of Columbia to
submit their highway-rail grade crossing action plans electronically
through FRA's website in Portable Document Format (PDF). FRA intends to
provide a secure document submission site for States and the District
of Columbia to use to upload their highway-rail grade crossing action
plans for FRA review and approval.
Existing paragraph (c) of this section outlines the requirements
for a State highway-rail grade crossing action plan and requires the
initial ten States to submit their plans to FRA by August 27, 2011. As
noted above, this existing requirement for the initial ten States to
develop and submit State highway-rail grade crossing action plans for
FRA
[[Page 60034]]
review and approval on or before August 27, 2011, was derived from the
RSIA. In response to the mandate of Section 11401 of the FAST Act, FRA
proposes to revise this section to require each of the initial ten
States to update its existing State highway-rail grade crossing action
plan and to provide a report on the State's efforts to implement its
existing plan.
Proposed paragraph (c)(1) would require each of the initial ten
States to update its existing State highway-rail grade crossing action
plan to address each of the required elements listed in paragraph (e)
(the same required elements that new State highway-rail grade crossing
action plans would be required to address) no later than one year after
the final rule's effective date. This list in paragraph (e)
incorporates many of the same elements that the initial ten States were
required to address in their existing plans. Paragraph (c)(1) would
also require each of the initial ten States to submit its updated
highway-rail grade crossing action plan to FRA for review and approval.
Paragraph (c)(2) would also require each of the initial ten States
to submit a report to FRA describing how the State implemented the
highway-rail grade crossing action plan that it previously submitted to
FRA under 49 CFR 234.11. Each of these initial ten States would also be
required by paragraph (c)(2) to describe in its report how the State
will continue to reduce highway-rail grade crossing safety risks. These
proposed requirements are derived from section 11401(b)(1) of the FAST
Act. FRA envisions that this report, which should address each proposed
initiative/solution contained in the State's highway-rail grade
crossing action plan previously submitted to FRA under 49 CFR 234.11,
could simply be submitted as an appendix to the State's updated plan.
FRA intends to use these implementation reports when preparing the
report to Congress required by section 11401(c) of the FAST Act
addressing the progress these initial ten States have made in
implementing their previously submitted action plans.
In paragraph (d)(1), FRA proposes to require each of the initial
ten States to submit its updated highway-rail grade crossing action
plan and implementation report electronically in PDF form. FRA intends
to provide a secure document submission site for these States to use to
upload their updated highway-rail grade crossing action plans and
implementation reports for FRA review. Paragraph (d)(2) identifies the
ten States that would be required to update their existing State
highway-rail grade crossing action plans and submit implementation
reports to FRA.
Paragraph (e) contains a proposed list of required elements for new
and updated State highway-rail grade crossing action plans. These
elements are derived from section 11401(b)(2) of the FAST Act. Section
11401(b)(2) of the FAST Act mandates that each State highway-rail grade
crossing action plan ``identify highway-rail grade crossings that have
experienced recent highway-rail grade crossing accidents or incidents
or multiple highway-rail grade crossing accidents or incidents, or are
at high-risk for accidents or incidents.'' As reflected in paragraph
(e)(1), FRA proposes to interpret ``recent highway-rail grade crossing
accidents or incidents'' as highway-rail grade crossing accidents or
incidents that have occurred within the previous 3 years. FRA proposes
to interpret ``multiple highway-rail grade crossing accidents or
incidents'' as more than one highway-rail grade crossing accident or
incident that occurred within the previous 5 years. This five-year
timeframe is consistent with the five-year timeframe used by the
initial ten States when they prepared their state highway-rail grade
crossing action plans pursuant to existing Sec. 234.11. FRA is not,
however, proposing to adopt an official definition or interpretation of
the phrase ``at high-risk for accidents or incidents.'' FRA intends to
give States the flexibility to define this category of highway-rail
grade crossings for themselves. In sum, paragraph (e)(1) would require
States to identify highway-rail grade crossings that: Have experienced
at least one accident or incident within the previous three years; have
experienced more than one accident or incident within the previous five
years; or are otherwise ``at high-risk for accidents or incidents, as
defined by the State or the District of Columbia.'' FRA expects that
States would explain how they have defined ``high risk for accidents or
incidents'' if they assert in their State action plans that they have
one or more highway-rail grade crossings that fall within this
category.
Paragraph (e)(2) would require States to identify the data sources
used to categorize the highway-rail grade crossings in paragraph
(e)(1). To help States identify highway-rail grade crossings that have
experienced recent accidents or incidents (i.e., at least one grade
crossing accident or incident within the previous three years), have
experienced multiple accidents or incidents (i.e., more than one
accident or incident within the previous five years), or are at high-
risk for accidents or incidents, FRA will provide highway-rail grade
crossing 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 highway-rail grade crossing
accident/incident data. However, if the State highway-rail grade
crossing action plan identifies highway-rail grade crossings that are
at ``high-risk for accidents or incidents,'' FRA expects that the State
will explain the criteria it used to classify highway-rail grade
crossings as ``high-risk for accidents or incidents,'' in addition to
discussing the data sources it used to identify this category of
crossings.
Paragraph (e)(3) would require States to discuss specific
strategies for improving safety at the highway-rail grade crossings
identified in paragraph (e)(1) over a five-year period. FRA anticipates
States will explain the causal factors that contribute to highway-rail
grade crossing safety risks at the grade crossings identified in their
action plans, including, if applicable, risks posed by highway-rail
grade crossings that are frequently blocked by idling trains. Also, as
indicated in the proposed rule text, FRA encourages States to consider
crossing closures and grade separations as potential strategies for
improving grade crossing safety. Paragraph (e)(4) would require States
to provide an implementation timeline for the strategies that will be
used to improve safety at the highway-rail grade crossings identified
in paragraph (e)(1). Section 11401(b) of the FAST Act did not dictate a
specific period of time that State highway-rail grade crossing action
plans should cover. However, existing paragraph (c) of this section
required the original ten States to develop highway-rail grade crossing
action plans that covered a five-year period. Therefore, for the sake
of consistency, FRA proposes that the plans for the remaining 40 States
and the District of Columbia cover a period of at least five years.
Based on FRA's previous experience working with the initial ten States,
a period of at least five years seems appropriate because many of the
strategies that may be included in these plans (e.g., crossing closures
and grade separations) could take up to five years to implement.
However, FRA solicits comment on the time period that should be covered
by highway-rail grade crossing plans prepared by the remaining 40
States and the District of Columbia.
Paragraph (e)(5) proposes to require each State and the District of
Columbia to designate an official responsible for managing
implementation of the State
[[Page 60035]]
highway-rail grade crossing action plan. FRA is planning to create a
secure document submission site that can be used to upload highway-rail
grade crossing action plans. The official designated under this
paragraph would be given primary user access to the secure document
submission site, as well as the authority to grant access to secondary
users. Accordingly, FRA envisions that the designated official will
need to register with FRA to gain primary user access to the secure
document submission site.
As reflected in paragraph (f) of this section, FRA proposes to
require States and the District of Columbia to provide the following
contact information for their designated officials, so they can be
invited to set up primary user accounts: The name and title of the
designated State official; the business mailing address for the
designated State official; the email address for the designated State
official; and the daytime business telephone number for the designated
State official. Also, paragraph (f)(2) of this section would require
each State and the District of Columbia to notify FRA if a new official
is subsequently designated to manage implementation of its highway-rail
grade crossing action plan and to provide contact information for the
new designated official.
Paragraph (g) sets forth FRA's proposed review and approval process
for highway-rail grade crossing action plans. FRA is soliciting
comments on the proposed timeframes for each stage of the proposed
review and approval process. These proposed timeframes include: (1) The
60-day period that would be allotted for FRA's preliminary review of
each State action plan, and (2) the 60-day period that would be
allotted for States with action plans deemed incomplete or deficient to
correct their plans and submit corrected plans to FRA for review.
In particular, FRA is soliciting comment on the best way to
implement these 60-day timeframes, which are specified in sections
11401(b)(6) and (b)(7) of the FAST Act. For instance, FRA is concerned
that the proposed 60-day review period may not be adequate in the event
most State action plans are submitted to FRA for review at
approximately the same time. Accordingly, FRA is soliciting comment on
whether the final rule should contain staggered deadlines for the
submission of State action plans, and if so, what criteria for
staggering should be used.
FRA is proposing a two-stage review process for new, updated, and
corrected highway-rail grade crossing action plans. As reflected in
paragraph (g)(1), FRA proposes to update its website to reflect receipt
of each new, updated, or corrected highway-rail grade crossing action
plan.
To avoid delaying implementation of needed grade crossing safety
improvements for agency review of each highway-rail grade crossing
action plan, FRA proposes in paragraph (g)(2)(A) to conduct a
preliminary review of each new, updated, and corrected highway-rail
grade crossing action plan within sixty (60) days of receipt. During
this preliminary review, FRA would determine if the elements prescribed
in paragraph (e) of this section are included in the plan.
As reflected in paragraph (g)(2)(B), each new, updated, or
corrected State highway-rail grade crossing action plan would be
considered conditionally approved unless FRA notifies the designated
official described in paragraph (e)(5) within 60 days of the date of
receipt that the plan is incomplete or deficient. However, as reflected
in paragraph (g)(2)(C), FRA proposes to reserve the right to conduct a
more comprehensive review of each new, updated, or corrected State
highway-rail grade crossing action plan during the 120-day period
following receipt of the plan to determine if the elements prescribed
in paragraph (e) of this section have been sufficiently addressed and
discussed in the plan. During this 120-day review period, FRA will
provide email notification to the State or District of Columbia's
designated official if FRA determines that a new, updated, or corrected
State highway-rail grade crossing action plan is incomplete or
deficient. FRA requests comment on these proposed approval timelines
and procedures and specifically, whether such a two-stage approval
process is necessary if staggered submission deadlines were to be
adopted.
In response to the FAST Act's mandate to make public each approved
plan and certain other information regarding submitted plans, FRA
proposes to post a table on its website that would reflect the review/
approval status of each highway-rail grade crossing action plan
submitted to FRA. In the table, FRA proposes to post information about
the date(s) on which it receives an action plan submitted by a State or
the District of Columbia, the date of automatic conditional approval
(if applicable), the date(s) on which FRA notifies the State or
District of Columbia that the plan is deficient or incomplete (if
applicable), the date on which the corrected action plan is received by
FRA (if applicable), and the date on which FRA notifies the State or
District of Columbia that the action plan has been fully approved. This
full FRA approval date would be the specific date FRA provides email
notification to the State or District of Columbia that FRA has fully
approved the action plan.
Paragraph (g)(3) specifically addresses highway-rail grade crossing
action plans that FRA determines to be incomplete or deficient. As
reflected in paragraph (g)(3)(A), FRA proposes to provide email
notification to the State or the District of Columbia's designated
official of the specific areas in which the highway-rail grade crossing
action plan is incomplete or deficient.
In paragraph (g)(3)(B), FRA proposes to allow States and the
District of Columbia to complete, correct, and resubmit within 60 days
any highway-rail grade crossing action plan that is deemed incomplete
or deficient. This 60-day timeframe is derived from section 11401(b)(7)
of the FAST Act, which directs States to complete their grade crossing
action plans and correct deficiencies identified within 60 days of the
date of FRA notification.
As reflected in paragraph (g)(4)(A), after FRA has completed its
review and approves a new, updated, or corrected State highway-rail
grade crossing action plan, FRA proposes to notify the State's
designated official described in paragraph (e)(5) of this section by
email that the highway-rail grade crossing action plan has been fully
approved.
Paragraph (g)(4)(B) states that FRA proposes to make each fully-
approved highway-rail grade crossing action plan publicly available for
online viewing. This provision is intended to comply with section
11401(b)(4) of the FAST Act, which requires the FRA Administrator to
make each approved State highway-rail grade crossing action plan
publicly available on ``an official internet website.'' To make fully-
approved plans publicly available for online viewing, FRA proposes to
post each fully-approved plan on its website. In addition, to avoid
confusion, the Federal Highway Administration will remove the original
State Action Plans submitted by the initial ten States from its
website.
Paragraph (g)(4)(C) would also require each State and the District
of Columbia to implement its highway-rail grade crossing action plan
upon full approval.
Under 23 U.S.C. 148, to receive certain highway funds, States are
required to implement highway safety improvement programs, which
implement their (continually updated) strategic highway safety plans, a
component of which is ``improvements to rail-highway grade crossings''
23 U.S.C. 148(d)(1)(B)(vii). Highway funding (23 U.S.C. 130) is
available to
[[Page 60036]]
fund States' development of highway-rail grade crossing plans under
this proposed rule. In addition, as stated in paragraph (h), the
Secretary of Transportation may condition the awarding of rail
improvement grants to States (49 U.S.C. 229) on the State's or District
of Columbia's submission of an FRA-approved State highway-rail grade
crossing action plan under this section.
III. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This NPRM is a non-significant regulatory action and has been
evaluated in accordance with existing policies and procedures under
Executive Order 12866 and DOT Order 2100.6. 44 FR 11034, Feb. 26, 1979;
58 FR 51,735; https://www.transportation.gov/regulations/2018-dot-rulemaking-order.
The purpose of the NPRM is to reduce accidents at highway-rail
grade crossings nationwide. The NPRM would require each State and the
District of Columbia to submit or re-submit to FRA a highway-rail grade
crossing action plan (Plan). The proposed rule would also require each
of the 10 States \1\ who previously created an FRA-approved Plan to
submit a report to FRA that describes how the State implemented its
existing Plan and how the State will continue to reduce highway-rail
grade crossing safety risks.\2\
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\1\ 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 Washington, DC.
\2\ This analysis covers a 10-year period immediately following
the potential implementation date of the NPRM, where all costs and
benefits are measured in 2017 dollars.
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Costs
The NPRM specifically lists the required elements for Plans.\3\ To
minimize the compliance costs, the NPRM would afford each State the
flexibility to develop or update a Plan based upon the individual
State's hazard assessment.
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\3\ U.S. Department of Transportation, Federal Railroad
Administration, RIN 2130-AC72, Section 234.11(e) Required elements
for State highway-rail grade crossing action plans.
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Section 11401(a) of the FAST Act required FRA to develop and
distribute a model State highway-rail grade crossing action plan (Model
Plan). In conjunction with the Federal Highway Administration (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 of the Fast Act. The guide is currently
available on the Department of Transportation's website.\4\ Previous
State action plans from the 2010 final rule are also currently
available to the public on DOT's website.\5\ After issuing a final rule
arising from this NPRM, FRA will provide States with assistance in
developing their Plans. FRA anticipates that assistance will help to
reduce the compliance burden.
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\4\ United States Department of Transportation, Federal Railroad
Administration, ``Highway-Railway Grade Crossing Action Plan and
Project Prioritization Noteworthy Practices Guide.'' Report Number
FHWA-SA-16-075. November 2016. https://www.fra.dot.gov/Elib/Document/16793.
\5\ U.S. Department of Transportation, Federal Highway
Administration, Rail-Highway Crossing (Section 130) Programs,
``State Grade Crossing Action Plans'' https://safety.fhwa.dot.gov/hsip/xings/.
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Table ES.1 shows the costs associated with the NPRM. The largest
costs for the 10 States that have already developed an FRA-approved
Plan are: Updating and Submitting a Plan to FRA ($350,000 (PV \6\, 7%)
and $364,000 (PV, 3%)) and submitting a report to FRA that describes
how each State implemented its previously submitted Plan and how the
State will continue to reduce highway-rail grade crossing safety risks
($57,000 (PV, 7%) and $59,000 (PV, 3%)), and resubmitting (if
necessary) a Plan should FRA determine the State's updated Plan
submission to be incomplete or deficient ($17,000 (PV, 7%) and $18,000
(PV, 3%)). Collectively, the largest costs for the other 40 States and
DC are: Developing and submitting a Plan to FRA ($1.0 million (PV, 7%)
and $1.1 million (PV, 3%)); and resubmitting (if necessary) a Plan
should FRA determine the State's previous Plan submission to be
incomplete or deficient ($38,000 (PV, 7%) and $40,000 (PV, 3%)).
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\6\ To compare benefits and costs that occur at different points
in time, this analysis calculates the present value (PV) of all
monetary factors on an annual basis. PV provides a way of converting
future costs and benefits into equivalent dollars today.
Consequently, it permits comparisons of benefit/cost streams that
involve different time paths. The formula used to calculate these
flows is: 1 / (1 + r)t, where ``r'' is the discount rate and ``t''
is the number of years ahead. Discount rates of 0.03 and 0.07 are
used.
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As shown in Table ES.1, the NPRM would result in a total cost of
$1.5 million (PV, 7%), and $1.6 million (PV, 3%).
Table ES-1: Cost Summary, Discounted at 7% and 3% (2017 dollars) \7\
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States updating existing plan States creating new plan All states
Costs -----------------------------------------------------------------------------------------------
7% 3% 7% 3% 7% 3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Develop or Update Plan.................................. $350,000 $364,000 $1,070,000 $1,111,000 $1,420,000 $1,475,000
Submitting Report to FRA................................ 57,000 59,000 .............. .............. 57,000 59,000
Resubmit Plan........................................... 17,000 18,000 38,000 40,000 55,000 57,000
-----------------------------------------------------------------------------------------------
Total Cost.......................................... 424,000 441,000 1,108,000 1,151,000 1,532,000 1,591,000
-----------------------------------------------------------------------------------------------
Annualized...................................... 60,000 52,000 158,000 135,000 218,000 187,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRA assumes that all costs would 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
would make after implementing their Plans.
---------------------------------------------------------------------------
\7\ Numbers rounded to the nearest 1,000.
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Benefits
This analysis found that the NPRM would have a positive impact in
mitigating highway-rail grade crossing accidents. FRA expects it would
take a few years for the States to see benefits associated with the
implementing of their Plans. Also, without periodic updates, Plans may
lose their effectiveness over time. Therefore, this analysis concluded
that Plans would only have a positive impact towards reducing accidents
in year 4 to year 8 after States develop their Plans.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., and
Executive
[[Page 60037]]
Order 13272, 67 FR 53461 (Aug. 16, 2002), require agency review of
proposed and final rules to assess their impact on small entities. An
agency must prepare an initial regulatory flexibility analysis (IRFA)
unless it determines and certifies that a rule, if promulgated, would
not have a significant impact on a substantial number of small
entities. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the FRA Administrator certifies that this proposed rule would
not have a significant economic impact on a substantial number of small
entities.
``Small entity'' is defined in 5 U.S.C. 601 as including a small
business concern that is independently owned and operated, and is not
dominant in its field of operation. The U.S. Small Business
Administration (SBA) has authority to regulate issues related to small
businesses, and stipulates in its size standards that a ``small
entity'' in the railroad industry is a for profit ``linehaul railroad''
that has fewer than 1,500 employees, a ``short line railroad'' with
fewer than 500 employees, or a ``commuter rail system'' with annual
receipts of less than 15 million dollars. See ``Size Eligibility
Provisions and Standards,'' 13 CFR part 121, subpart A. Additionally, 5
U.S.C. 601(5) defines as ``small entities'' governments of cities,
counties, towns, townships, villages, school districts, or special
districts with populations less than 50,000. Federal agencies may adopt
their own size standards for small entities, in consultation with SBA
and in conjunction with public comment. Pursuant to that authority, FRA
has published a final statement of agency policy that formally
establishes ``small entities'' or ``small businesses'' as being
railroads, contractors, and hazardous materials shippers that meet the
revenue requirements of a Class III railroad as set forth in 49 CFR
1201.1-1, which is $20 million or less in inflation-adjusted annual
revenues, and commuter railroads or small governmental jurisdictions
that serve populations of 50,000 or less. See 68 FR 24891 (May 9,
2003), codified at appendix C to 49 CFR part 209. The $20-million limit
is based on the Surface Transportation Board's revenue threshold for a
Class III railroad. Railroad revenue is adjusted for inflation by
applying a revenue deflator formula in accordance with 49 CFR 1201.1-1.
FRA is using this definition for this rulemaking.
FRA identified 51 entities (the 50 States and the District of
Columbia) that would be affected by this proposed rule. The proposed
rule would not impact any other entity--public or private. Each of the
50 States and the District of Columbia have a population greater than
50,000. Therefore, the proposed rule would not directly regulate any
small entities. Pursuant to the Regulatory Flexibility Act, 5 U.S.C.
601(b), the FRA Administrator hereby certifies that this proposed rule
would not have a significant impact on a substantial number of small
entities. FRA requests comments on all aspects of this certification.
C. Federalism
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local governments
or the agency consults with State and local 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.
FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. FRA has
determined that the proposed 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 proposed 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 of Executive Order
13132 do not apply, and preparation of a federalism summary impact
statement for this proposed rule is not required.
D. Paperwork Reduction Act
FRA is submitting the information collection requirements in this
proposed rule to the Office of Management and Budget (OMB) for approval
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The
section that contains the new information collection requirements is
noted below, and the estimated burden times to fulfill each requirement
are as follows:
----------------------------------------------------------------------------------------------------------------
Total annual
Respondent Total annual Average time Total annual burden dollar
CFR section universe responses per response burden hours cost
\8\ equivalent
----------------------------------------------------------------------------------------------------------------
234.11--State Highway-Rail 40 States + 3.5 plans + 10 700 hours + 550 9,350 $572,220
Grade Crossing Action Plans-- District of plans + 7 hours + 200
Development and submission Columbia. plans. hours.
of New Plans (40 States +
DC).
--State Highway-Rail 10 States...... 1.5 plans + 1.5 1,100 hours + 3,060 187,272
Grade Crossing Action plans + 2 640 hours +
Plans--Development and plans. 225 hours.
submission of updated
plans for listed States
in Section 234.11e with
FRA Previously Approved
Plans (10 States).
--State Highway-Rail 10 States...... 1.5 reports + 160 hours + 120 500 30,600
Grade Crossing Action 1.5 reports + hours + 40
Plan Implementation 2 reports. hours.
Reports (10 listed
States in Section
234.11e).
[[Page 60038]]
--Notification to FRA by 50 States + 4 notifications 5 minutes...... .33 20
State or District of District of
Columbia (DC) of another Columbia.
official to assume
responsibilities
described in paragraph
(e)(6) of this Section.
--FRA review and approval 40 States + 1 plan + 3 105 hours + 60 333 20,380
of State Highway-Rail District of plans + 2 hours + 24
Grade Crossing Action Columbia. plans. hours.
Plans: Disapproved plans
needing revision (40
States + DC).
--FRA review and approval 10 States...... .5 plan + .5 55 hours + 32 148 9,058
of State Highway-Rail plan + .5 plan. hours + 11
Grade Crossing Action hours.
Plans: Disapproved plans
needing revision (10
listed States in Section
234.11e).
-------------------------------
Total................ N/A............ 42 (plans/ N/A............ 13,391 819,550
reports/
notifications).
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Under 44 U.S.C. 3506(c)(2)(B), FRA
solicits comments concerning: Whether these information collection
requirements are necessary for the proper performance of the functions
of FRA, including whether the information has practical utility; the
accuracy of FRA's estimates of the burden of the information collection
requirements; the quality, utility, and clarity of the information to
be collected; and whether the burden of collection of information on
those who are to respond, including through the use of automated
collection techniques or other forms of information technology, may be
minimized.
---------------------------------------------------------------------------
\8\ As noted in the Regulatory Impact Analysis (RIA)
accompanying this proposed rule, the States/DC will incur the costs
for this proposed rule's requirements in the first year. However,
since FRA is requesting a two-year approval from OMB for the
information collection associated with this proposed rule, FRA has
divided by two the number of burden responses, burden hours, and
dollar equivalent cost to obtain the average annual burden once the
proposed/final rule goes into effect. Also, please note that the
dollar equivalent cost for the estimated burden hours is based on
Bureau of Labor Statistics (BLS) data for the average hourly wage
for State employees responsible for submitting a State Highway-Rail
Grade Action Plan/updated plans/implementation reports and amounts
to $61.20 per hour. Please see the RIA for this proposed rule for
more details.
---------------------------------------------------------------------------
For information or a copy of the paperwork package submitted to
OMB, contact Ms. Hodan Wells, Information Clearance Officer, at 202-
493-0440, or Ms. Kimberly Toone, Records Management Officer, Office of
Railroad Safety, Federal Railroad Administration, at 202-493-6132.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Ms. Hodan
Wells or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue SE, 3rd Floor, Washington, DC 20590. Comments may also be
submitted via email to Ms. Wells at [email protected] or Ms. Toone at
[email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal. FRA will be seeking an OMB
reinstatement of a previously approved control number under OMB No.
2130-0589 that was discontinued because all requirements had been
fulfilled under an earlier rulemaking.
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. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
E. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. This proposed rule is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.
F. Environmental Assessment
FRA has evaluated this proposed rule under its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999) as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.) other environmental statutes, Executive Orders,
and related regulatory requirements. FRA has determined that this
proposed rule is not a major FRA action (requiring the preparation of
an environmental impact statement or environmental assessment) because
it is categorically excluded from detailed environmental review
pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May
26, 1999). In accordance with section 4(c) and (e) of FRA's Procedures,
the agency has further concluded that no extraordinary circumstances
exist with respect to this proposed regulation that might trigger the
need for a more detailed environmental review. As a result, FRA finds
that this proposed rule is not a major Federal action significantly
affecting the quality of the human environment.
G. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
[[Page 60039]]
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent such regulations incorporate requirements
specifically set forth in law.) Section 202 of the Act (2 U.S.C. 1532)
further requires that before promulgating any general notice of
proposed rulemaking that is likely to result in the promulgation of any
rule that includes any Federal mandate that may result in 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 proposed
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.
H. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). FRA evaluated this proposed 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.
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. See 82 FR 16093 (Mar. 31,
2017). FRA determined this proposed rule would not burden the
development or use of domestically produced energy resources.
I. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to www.regulations.gov, as described in the
system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. To facilitate comment tracking and response, we
encourage commenters to provide their name, or the name of their
organization; however, submission of names is completely optional.
Whether or not commenters identify themselves, all timely comments will
be fully considered. If you wish to provide comments containing
proprietary or confidential information, please contact the agency for
alternate submission instructions.
List of Subjects in 49 CFR Part 234
Highway safety, Penalties, Railroad safety, Reporting and
recordkeeping requirements, State and local governments.
The Proposed Rule
For the reasons discussed in the preamble, FRA proposes to amend
part 234 of chapter II, subtitle B of title 49, Code of Federal
Regulations, as follows:
PART 234--[AMENDED]
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, 22501 note; Pub. L. 114-94, Div. A, Sec. 11401; and 49 CFR
1.89.
0
2. In Sec. 234.1, revise paragraph (a)(3) to read as follows:
Sec. 234.1 Scope.
(a) * * *
(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;
* * * * *
0
3. Section 234.11 is revised to read as follows:
Sec. 234.11 State highway-rail grade crossing action plans.
(a) Purpose. The purpose of this section is to reduce accidents at
highway-rail 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 (d)(2) 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 elements listed in paragraph (e) of
this section and submit such plan to FRA for review and approval not
later than [DATE 426 DAYS FROM DATE OF PUBLICATION OF FINAL RULE IN THE
Federal Register].
(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 (d)(2) of this section shall develop and
submit an updated State highway-rail grade crossing action plan that
addresses each of the required elements listed in paragraph (e) of this
section to FRA for review and approval, not later than [DATE 426 DAYS
AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register].
(2) Each of the 10 States listed in paragraph (d)(2) of this
section shall also develop and submit to FRA, not later than [DATE 426
DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register],
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 grade
crossing safety risks.
(d) Electronic submission of updated action plan and implementation
report. (1) 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.
(2) The requirements of paragraph (c) of this section and this
paragraph (d) apply to the following States: Alabama, California,
Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas.
(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 grade crossings that:
(i) Have experienced at least one accident or incident within the
previous 3 years;
(ii) Have experienced more than one accident or incident within the
previous 5 years; or
[[Page 60040]]
(iii) Are at high-risk for accidents or incidents as defined by the
State or the District of Columbia in the action plan;
(2) Identify data sources used to categorize the highway-rail 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 five years;
(4) Provide an implementation timeline for the strategies discussed
in paragraph (d)(2) of this section; and
(5) Designate an official responsible for managing implementation
of the State highway-rail grade crossing action plan.
(f) Electronic submission. (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 State or the District of Columbia shall provide the
following information 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 phone 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, 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 sixty (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 determine if the elements
prescribed in paragraph (e) of this section are included 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 unless FRA notifies the designated official
described in paragraph (e)(5) of this section within sixty (60) days of
receipt 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 plan is deficient 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 that
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 State or District of Columbia shall submit its
corrected highway-rail grade crossing action plan electronically
through FRA's website in PDF form.
(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) 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.
Issued in Washington, DC.
Ronald L. Batory,
Administrator, Federal Railroad Administration.
[FR Doc. 2019-24197 Filed 11-6-19; 8:45 am]
BILLING CODE 4910-06-P
