State Highway-Rail Grade Crossing Action Plans, 60032-60040 [2019-24197]

Download as PDF 60032 Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules Impact. The Postal Service summarizes the impact of Proposal Nine to product volume-variable and product-specific costs for FY 2018 in a table attached to the Petition. Id. at 14. It also provides a comprehensive version under seal. Id. at 12. III. Notice and Comment The Commission establishes Docket No. RM2020–1 for consideration of matters raised by the Petition. More information on the Petition may be accessed via the Commission’s website at http://www.prc.gov. Interested persons may submit comments on the Petition and Proposal Nine no later than December 20, 2019. Pursuant to 39 U.S.C. 505, Katalin K. Clendenin is designated as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding. IV. Ordering Paragraphs It is ordered: 1. The Commission establishes Docket No. RM2020–1 for consideration of the matters raised by the Petition of the United States Postal Service for the Initiation of a Proceeding to Consider Proposed Changes in Analytical Principles (Proposal Nine), filed October 31, 2019. 2. Comments by interested persons in this proceeding are due no later than December 20, 2019. 3. Pursuant to 39 U.S.C. 505, the Commission appoints Katalin K. Clendenin to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket. 4. The Secretary shall arrange for publication of this order in the Federal Register. By the Commission. Darcie S. Tokioka, Acting Secretary. [FR Doc. 2019–24307 Filed 11–6–19; 8:45 am] BILLING CODE 7710–FW–P 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 Federal Railroad Administration (FRA), Department of Transportation (DOT). AGENCY: VerDate Sep<11>2014 17:23 Nov 06, 2019 Jkt 250001 Notice of proposed rulemaking (NPRM). ACTION: 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. SUMMARY: 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 DATES: PO 00000 Frm 00063 Fmt 4702 Sfmt 4702 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 E:\FR\FM\07NOP1.SGM 07NOP1 Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules following ten States had the most reported highway-rail grade crossing accidents/incidents at public and private grade crossings during the threeyear 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 highwayrail 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 highwayrail 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 VerDate Sep<11>2014 17:23 Nov 06, 2019 Jkt 250001 requirements related to the publication of FRA-approved plans. For example, when FRA approves a State’s highwayrail 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-bySection 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 PO 00000 Frm 00064 Fmt 4702 Sfmt 4702 60033 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 E:\FR\FM\07NOP1.SGM 07NOP1 60034 Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules 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 VerDate Sep<11>2014 17:23 Nov 06, 2019 Jkt 250001 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 highwayrail 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 highwayrail 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 highwayrail 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 § 234.11. FRA is not, however, proposing to adopt an official definition or interpretation of the phrase ‘‘at highrisk 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 PO 00000 Frm 00065 Fmt 4702 Sfmt 4702 or incidents, FRA will provide highwayrail 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 highwayrail 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 E:\FR\FM\07NOP1.SGM 07NOP1 Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules 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 60day 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 VerDate Sep<11>2014 17:23 Nov 06, 2019 Jkt 250001 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 highwayrail 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 PO 00000 Frm 00066 Fmt 4702 Sfmt 4702 60035 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 highwayrail 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 fullyapproved 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 E:\FR\FM\07NOP1.SGM 07NOP1 60036 Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules describes how the State implemented its existing Plan and how the State will continue to reduce highway-rail grade crossing safety risks.2 fund States’ development of highwayrail 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. Costs 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 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. 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. 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%)). 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 States updating existing plan States creating new plan All states Costs 7% 3% Develop or Update Plan .......................... Submitting Report to FRA ........................ Resubmit Plan .......................................... $350,000 57,000 17,000 Total Cost ......................................... Annualized ................................. 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. 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. 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. VerDate Sep<11>2014 17:23 Nov 06, 2019 Jkt 250001 7% 3% $364,000 59,000 18,000 $1,070,000 ........................ 38,000 $1,111,000 ........................ 40,000 $1,420,000 57,000 55,000 $1,475,000 59,000 57,000 424,000 441,000 1,108,000 1,151,000 1,532,000 1,591,000 60,000 52,000 158,000 135,000 218,000 187,000 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 4 United States Department of Transportation, Federal Railroad Administration, ‘‘HighwayRailway 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/. PO 00000 Frm 00067 Fmt 4702 Sfmt 4702 7% 3% 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 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. 7 Numbers rounded to the nearest 1,000. E:\FR\FM\07NOP1.SGM 07NOP1 60037 Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules 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 $20 234.11—State Highway-Rail Grade Crossing Action Plans—Development and submission of New Plans (40 States + DC). —State Highway-Rail Grade Crossing Action Plans—Development and submission of updated plans for listed States in Section 234.11e with FRA Previously Approved Plans (10 States). —State Highway-Rail Grade Crossing Action Plan Implementation Reports (10 listed States in Section 234.11e). 18:10 Nov 06, 2019 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 Respondent universe CFR section VerDate Sep<11>2014 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. Jkt 250001 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 burden hours 8 Total annual burden dollar cost equivalent 700 hours + 550 hours + 200 hours. 9,350 $572,220 1.5 plans + 1.5 plans + 2 plans. 1,100 hours + 640 hours + 225 hours. 3,060 187,272 1.5 reports + 1.5 reports + 2 reports. 160 hours + 120 hours + 40 hours. 500 30,600 Total annual responses Average time per response 40 States + District of Columbia. 3.5 plans + 10 plans + 7 plans. 10 States ................ 10 States ................ PO 00000 Frm 00068 Fmt 4702 Sfmt 4702 E:\FR\FM\07NOP1.SGM 07NOP1 60038 Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules Total annual burden hours 8 Total annual burden dollar cost equivalent 5 minutes ................ .33 20 1 plan + 3 plans + 2 plans. 105 hours + 60 hours + 24 hours. 333 20,380 10 States ................ .5 plan + .5 plan + .5 plan. 55 hours + 32 hours + 11 hours. 148 9,058 N/A .......................... 42 (plans/reports/notifications). N/A .......................... 13,391 819,550 Respondent universe Total annual responses Average time per response 50 States + District of Columbia. 4 notifications .......... 40 States + District of Columbia. CFR section —Notification to FRA by State or District of Columbia (DC) of another official to assume responsibilities described in paragraph (e)(6) of this Section. —FRA review and approval of State Highway-Rail Grade Crossing Action Plans: Disapproved plans needing revision (40 States + DC). —FRA review and approval of State Highway-Rail Grade Crossing Action Plans: Disapproved plans needing revision (10 listed States in Section 234.11e). Total ........................................... 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. 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 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. VerDate Sep<11>2014 18:10 Nov 06, 2019 Jkt 250001 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 Hodan.Wells@dot.gov or Ms. Toone at Kim.Toone@dot.gov. 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 PO 00000 Frm 00069 Fmt 4702 Sfmt 4702 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 E:\FR\FM\07NOP1.SGM 07NOP1 Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules (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 VerDate Sep<11>2014 17:23 Nov 06, 2019 Jkt 250001 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] 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. 2. In § 234.1, revise paragraph (a)(3) to read as follows: ■ § 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; * * * * * ■ 3. Section 234.11 is revised to read as follows: § 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 PO 00000 Frm 00070 Fmt 4702 Sfmt 4702 60039 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 E:\FR\FM\07NOP1.SGM 07NOP1 60040 Federal Register / Vol. 84, No. 216 / Thursday, November 7, 2019 / Proposed Rules (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 VerDate Sep<11>2014 17:23 Nov 06, 2019 Jkt 250001 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 fullyapproved State highway-rail grade crossing action plan publicly available for online viewing. (iii) Each State and the District of Columbia shall implement its fullyapproved 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 PO 00000 Frm 00071 Fmt 4702 Sfmt 4702 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 191101–0073] RIN 0648–BH59 International Fisheries; Eastern Pacific Tuna Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Area of Overlap Between the Convention Areas of the InterAmerican Tropical Tuna Commission and the Western and Central Pacific Fisheries Commission National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: NMFS seeks comments on this proposed rule issued under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFCIA) and the Tuna Conventions Act. The proposed rule would revise the management regime for fishing vessels that target tunas and other highly migratory fish species (HMS) in the area of overlapping jurisdiction in the Pacific Ocean between the Inter-American Tropical Tuna Commission (IATTC) and the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC). The proposed rule would apply all regulations implementing IATTC resolutions in the area of overlapping jurisdiction. Under this proposed rule, regulations implementing WCPFC decisions on catch and fishing effort limits, bycatch mitigation measures, and associated reporting requirements would no longer apply in the area of overlapping jurisdiction. However, regulations implementing WCPFC management measures related to monitoring, control, and surveillance would continue to apply in the area of overlapping jurisdiction. NMFS is undertaking this action based on an evaluation of the management regime in the area of overlapping jurisdiction, in order to satisfy the obligations of the United States as member of the IATTC and the WCPFC, pursuant to the authority of the WCPFCIA and the Tuna Conventions Act. DATES: Comments on the proposed rule must be submitted by November 22, 2019. SUMMARY: E:\FR\FM\07NOP1.SGM 07NOP1

Agencies

[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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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/.
---------------------------------------------------------------------------

    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%)).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           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.
---------------------------------------------------------------------------

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