State Highway-Rail Grade Crossing Action Plans, 80648-80661 [2020-26064]
Download as PDF
<![CDATA[
80648
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
Issued this 25th day of November, 2020, at
Washington, DC, under authority delegated
in 49 CFR 1.27(a).
Steven G. Bradbury,
General Counsel.
[FR Doc. 2020–26549 Filed 12–11–20; 8:45 am]
BILLING CODE 4910–9X–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 234
[Docket No. FRA–2018–0096, Notice No. 2]
RIN 2130–AC72
State Highway-Rail Grade Crossing
Action Plans
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
FRA is issuing this final rule
in response to the Fixing America’s
Surface Transportation Act mandate
that FRA issue a rule requiring 40 States
and the District of Columbia to develop
and implement highway-rail grade
crossing action plans. This final rule
also requires ten States that developed
highway-rail grade crossing action plans
as required by the Rail Safety
Improvement Act of 2008 and FRA’s
implementing regulation to update their
plans and submit reports to FRA
describing actions they have taken to
implement them.
DATES: This final rule is effective
January 13, 2021.
ADDRESSES: Docket: For access to the
docket to read background documents
or comments received, go to https://
www.regulations.gov and follow the
online instructions for accessing the
docket.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
James Payne, Staff Director, HighwayRail Crossing and Trespasser Programs
Division (telephone: 202–493–6005);
Debra Chappell, Transportation
Specialist (telephone: 202–493–6018);
or Kathryn Gresham, Attorney Adviser,
Office of the Chief Counsel (telephone:
202–493–6063).
SUPPLEMENTARY INFORMATION:
jbell on DSKJLSW7X2PROD with RULES
Table of Contents for Supplementary
Information
I. Executive Summary
II. Funding
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Order 12866, Congressional
Review Act, and DOT Regulatory
Policies and Procedures
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
B. Regulatory Flexibility Determination
C. Federalism
D. Paperwork Reduction Act
E. Environmental Impact
F. Executive Order 12898 (Environmental
Justice)
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Executive Summary
This final rule revises FRA’s
regulation (49 CFR 234.11) on State
highway-rail grade crossing action plans
(Action Plans) to require 40 States and
the District of Columbia (DC) to develop
and implement FRA-approved Action
Plans. The final rule also requires ten
States that were previously required to
develop Action Plans by the Rail Safety
Improvement Act of 2008 1 (RSIA) and
FRA’s implementing regulation at 49
CFR 234.11 to update their plans and
submit reports describing the actions
they have taken to implement their
plans.
This final rule is intended to
implement the Fixing America’s Surface
Transportation Act (FAST Act) mandate
that the FRA Administrator promulgate
a regulation requiring States to develop,
implement (and update, if applicable)
Action Plans.2 In RSIA, Congress
directed the Secretary of Transportation
(Secretary) to identify the ten States that
had the most highway-rail grade
crossing (GX) collisions, on average,
over the previous three years, and
require those States to develop Action
Plans for the Secretary’s approval.3
RSIA required the Action Plans to
‘‘identify specific solutions for
improving’’ grade crossing safety and to
‘‘focus on crossings that have
experienced multiple accidents or are at
high risk’’ for accidents. Using FRA’s
database of reported GX accidents/
incidents that occurred at public and
private grade crossings, FRA determined
the following ten States had the most
reported GX accidents/incidents at
public and private grade crossings
during the three-year period from 2006
through 2008: Alabama, California,
Florida, Georgia, Illinois, Indiana, Iowa,
Louisiana, Ohio, and Texas. Therefore,
on June 28, 2010, FRA issued a final
rule (2010 final rule) requiring these ten
States to develop Action Plans and
submit them to FRA for approval (based
on the Secretary’s delegation of
authority to the Federal Railroad
Administrator in 49 CFR 1.89).4
1 Public
Law 110–432.
U.S.C. 11401.
3 RSIA, Sec. 202.
4 75 FR 36551 (June 28, 2010) (codified at 49 CFR
234.11).
2 49
PO 00000
Frm 00068
Fmt 4700
Sfmt 4700
Section 11401 of the FAST Act
(Section 11401) 5 tasks the FRA
Administrator with promulgating a
regulation requiring these ten States to
update the Action Plans they previously
submitted to FRA under 49 CFR 234.11.
This statutory mandate also directs FRA
to include a regulatory provision that
requires each of these ten States to
submit a report to FRA describing: (a)
What the State did to implement its
previous Action Plan; and (b) how the
State will continue to reduce GX safety
risks. As for the other 40 States and DC,
Section 11401(b)(1)(B) requires the FRA
Administrator to promulgate a
regulation requiring them to develop
and implement State Action Plans.
The FAST Act mandate contains
specific requirements for the contents of
the Action Plans. As set forth in Section
11401(b)(2), each Action Plan must
identify GXs that: (a) Have experienced
recent GX accidents or incidents; (b)
have experienced multiple GX accidents
or incidents; or (c) are at high-risk for
accidents or incidents. Section
11401(b)(2) further provides that each
Action Plan must identify specific
strategies for improving safety at GXs,
including GX closures or grade
separations, and that each State Action
Plan must designate a State official
responsible for managing
implementation of the plan.
In addition, the FAST Act mandate
contains requirements related to FRA’s
review and approval of State Action
Plans, as well as requirements related to
the publication of FRA-approved plans.
For example, when FRA approves a
State’s Action Plan, Section 11401(b)(4)
requires FRA to make the approved plan
publicly available on an ‘‘official
internet website.’’
If a State submits an Action Plan FRA
deems incomplete or deficient, Section
11401(b)(6) requires FRA to notify the
State of the specific areas in which the
plan is deficient. In addition, Section
11401(b)(6) requires States to correct
any identified deficiencies and resubmit
their corrected plans to FRA within 60
days from FRA’s notification of the
deficiency. If a State fails to meet this
60-day deadline for correcting
deficiencies identified by FRA, Section
11401(b)(8) requires FRA to post a
notice on an ‘‘official internet website’’
that the State has an incomplete or
deficient Action Plan. FRA personnel,
including FRA regional grade crossing
managers, inspectors, and specialists
and experts from FRA’s Highway-Rail
Crossing and Trespasser Programs
Division, are available to assist States
with developing, implementing, and
5 49
E:\FR\FM\14DER1.SGM
U.S.C. 11401.
14DER1
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
jbell on DSKJLSW7X2PROD with RULES
updating their Action Plans. For
example, as further explained in the
Section-by-Section Analysis below, FRA
will offer webinars as well as provide
GX accident/incident data to States
upon request. FRA will also assist State
agencies that wish to use FRA’s Office
of Safety Analysis website (https://
railroads.dot.gov/safety-data) to
generate customized reports of GX
accident/incident data.
II. Funding
FRA received comments
recommending that Federal funding
should be available to offset the costs
associated with State efforts to develop
and update Action Plans, as required by
this final rule. Delaware DOT (DelDOT)
commented that dedicated funding
should be available for States to develop
and implement their Action Plans as
required by FRA, while the Vermont
Agency of Transportation (VTrans)
submitted comments encouraging FRA
to include funding to States in carrying
out this requirement. Otherwise,
DelDOT asserted that the costs
associated with developing and
implementing an Action Plan would
prohibit or delay the State’s
implementation of safety improvements.
The statutory mandate for this
rulemaking did not contain any
provision that would authorize
dedicated Federal funding for the
Action Plans. However, Section
11401(d) allows for States to use Federal
funds allocated through the Federal
Highway Administration’s (FHWA)
Railway-Highway Crossings (Section
130) Program to develop and update
their Action Plans as required by this
final rule. In addition, the two percent
limitation on the use of Section 130
funds apportioned to a State allowed by
23 U.S.C. 130(k) for the compilation and
analysis of data in support of the RailHighway Crossings Program annual
reports does not restrict the use of
Section 130 funds to develop or update
Action Plans. However, FRA
recommends States contact their local
FHWA Division Office for more
information, if they have questions
about the use of Section 130 funds or
any other FHWA-administered funds to
develop or update their Action Plans.
Minnesota DOT (MNDOT) submitted
comments requesting specific guidance
on how States may use Section 130
funds to develop their Action Plans. In
particular, MNDOT asked if States may
use Section 130 funds to offset the cost
of developing Action Plans at 100
percent funding, or whether States will
be required to come up with a 10
percent match. In addition, if States will
be required to come up with a 10
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
percent match, MNDOT asked if the
State of Minnesota can use funds in its
Grade Crossing Safety Account as the 10
percent match. Under 23 U.S.C.
130(f)(3), the Federal share of railhighway crossing projects using Section
130 set-aside funds is 90 percent. The
question regarding State of Minnesota
Grade Crossing Safety Account funds
falls outside the scope of this
rulemaking, as the State of Minnesota
administers the distribution of State
funding. As such, FRA recommends that
MNDOT coordinate with the
appropriate agency to obtain guidance
on that issue.
III. Section-by-Section Analysis
Section 234.1
Scope
This section discusses the scope of
part 234. As proposed in the notice of
proposed rulemaking (NPRM),6 FRA is
revising paragraph (a)(3) to reflect the
revised requirements contained in 49
CFR 234.11 as a result of the FAST Act
mandate and indicate that these revised
requirements are within the scope of
this part.
Section 234.5
Definitions
Although FRA proposed no new
definitions in the NPRM, after reviewing
the comments received in response to
the NPRM, in this final rule, FRA is
adding definitions for three terms used
in § 234.11 to the list of definitions in
§ 234.5.
The first definition FRA is adding is
the definition of the term ‘‘accident/
incident,’’ which FRA is adopting, in
part, from the definition of the term in
49 CFR 225.5. Specifically, this final
rule defines ‘‘accident/incident’’ as any
impact between railroad on-track
equipment and a highway user at a GX
or pathway grade crossing (PX). The
definition further notes that the term
‘‘highway user’’ includes automobiles,
buses, trucks, motorcycles, bicycles,
farm vehicles, pedestrians, and all other
modes of surface transportation,
motorized and un-motorized.
FRA received a number of comments
on its proposal to replace the term
‘‘collisions’’ in § 234.11(a) with the term
‘‘accidents,’’ and to use the term
‘‘accident or incident’’ in § 234.11(e)
when describing required Action Plan
elements. MNDOT and the Oregon
Department of Transportation (ODOT)
commented that use of the terms
‘‘accidents’’ (used in proposed
paragraph (a)) and ‘‘accident or
incident’’ (used in proposed paragraph
(e)) would be confusing. MNDOT
recommended that FRA define these
6 84
PO 00000
FR 60032 (Nov. 7, 2019).
Frm 00069
Fmt 4700
Sfmt 4700
80649
terms in the final rule. ODOT
recommended that FRA use a single
word or word combination consistently
throughout the final rule, instead of
switching back and forth between
‘‘accident’’ and the word combination
‘‘accident or incident.’’ A resident of
Chicago, Illinois also commented that
the phrase ‘‘accident or incident’’ is too
vague.
In addition, FRA received comments
from one or more unnamed individuals
calling themselves the ‘‘State Program
Managers Section 130/State [GX]
Program Office,’’ and self-described as
having a combined 50 years of public
service experience and over 25 years of
experience managing Section 130
programs. FRA refers to this commenter
as the ‘‘130 Group’’ to distinguish them
from official comments submitted on
behalf of Section 130 Program Managers
for one or more State departments of
transportation. In their comments, the
130 Group recommended FRA use the
term ‘‘collision’’ or the term ‘‘crash’’ in
this final rule for consistency with other
highway safety programs that seek to
mitigate the frequency and severity of
incidents. The 130 Group explained that
use of the term ‘‘accident’’ has been
discouraged because a train always has
the right of way and a vehicle must
always stop or approach a grade
crossing prepared to stop.
The Alaska Department of
Transportation and Public Facilities
(Alaska DOT&PF) also prefers the word
‘‘crashes.’’ Alaska DOT&PF asserted in
its comments that ‘‘crashes’’ is the
terminology more commonly recognized
by traffic safety practitioners and
interest groups and recommended that
FRA at least explain why the term is not
used, if not adopted in the final rule.
After considering these comments, in
this final rule, FRA is adopting a
slightly revised term, ‘‘accident/
incident.’’ In making this decision, FRA
relied heavily on the plain language of
Section 11401(b), which specifically
refers to ‘‘[GX] accidents or incidents’’
as one of the primary factors for
identifying GXs that must be addressed
by States in their Action Plans. FRA
notes that the word combination
‘‘accidents or incidents’’ used in Section
11401(b) is essentially the same as the
term ‘‘accident/incidents,’’ which has
been used for years in FRA’s accident
reporting regulations in 49 CFR part
225.
This final rule also moves the existing
definition of ‘‘pathway grade crossing’’
from § 234.301 (which applies only to
FRA’s Emergency Notification System
regulations in subpart C to 49 CFR part
234) to § 234.5. Although FRA did not
propose to move this definition in the
E:\FR\FM\14DER1.SGM
14DER1
jbell on DSKJLSW7X2PROD with RULES
80650
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
NPRM, by moving it to § 234.5 in this
final rule, the definition will now apply
to all of FRA’s grade crossing
regulations in 49 CFR part 234. For
purposes of this final rule, including the
definition in § 234.5 will make clear the
term’s meaning as it is used in § 234.11,
which as revised, requires States to
address safety at PXs, as well as GXs, in
their Action Plans. This change is
consistent with the mandate of Section
11401(e), which defines ‘‘highway-rail
grade crossing’’ to include locations
where ‘‘a pathway explicitly authorized
by a public authority or a railroad
carrier . . . crosses one or more railroad
tracks either at grade or gradeseparated.’’ Specifically, in this final
rule, FRA is defining the term ‘‘pathway
grade crossing’’ in § 234.5 to mean a
pathway that crosses one or more
railroad tracks at grade and that is: (1)
Explicitly authorized by a public
authority or a railroad; (2) dedicated for
the use of non-vehicular traffic,
including pedestrians, bicyclists, and
others; and (3) not associated with a
public highway, road, or street, or a
private roadway.
Pathways that are contiguous with, or
separate but adjacent to, GXs are part of
the GX and are not separate crossings.
However, as explained in FRA’s Guide
for Preparing U.S. DOT Crossing
Inventory Forms, pathways that
intersect with one or more railroad
tracks more than 25 feet from the
location where a highway, road, or
street intersects with one or more
railroad tracks are generally separate
PXs. The comments regarding this term
and FRA’s responses are further
discussed below in the discussion
regarding § 234.11.
FRA is also adding a definition of
‘‘State highway-rail grade crossing
action plan’’ or ‘‘Action Plan.’’ This
definition is being added in response to
multiple comments from State agencies,
including Alaska DOT&PF, Washington
Utilities and Transportation
Commission staff (Washington UTC
staff), the South Dakota Department of
Transportation (SDDOT) and the
departments of transportation for Idaho,
Montana, North Dakota, and Wyoming,
recommending that FRA allow States
the flexibility to coordinate, integrate, or
incorporate their Action Plans with
other reports, such as the Strategic
Highway Safety Program (SHSP) or the
State Transportation Improvement
Program. Specifically, this final rule
defines ‘‘State highway-rail grade
crossing action plan’’ or ‘‘Action Plan’’
as a document submitted to FRA for
review and approval by a State of the
United States (or DC), which contains
the elements required by § 234.11(e) to
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
address safety at highway-rail and
pathway grade crossings. Therefore, a
State may comply with this final rule by
submitting an existing document to FRA
that addresses GX and PX safety,
provided the existing document
contains (or is amended to include) all
the required elements in § 234.11(e).
Section 234.11 State Highway-Rail
Grade Crossing Action Plans
Currently, paragraph (a) of this
section indicates that the purpose of this
section is to reduce ‘‘collisions’’ at GXs
in the ten States that had the most GX
collisions from 2006–2008 (the ‘‘initial
ten States’’). Existing paragraph (a) also
makes clear that this section does not
restrict any other entity from adopting
an Action Plan, nor would it restrict any
State or DC from adopting an Action
Plan with additional or more stringent
requirements not inconsistent with this
regulation. In the NPRM, FRA proposed
to replace the word ‘‘collisions’’ with
the word ‘‘accidents’’ for consistency
with the language of Section 11401(b).
For the reasons discussed above, in this
final rule, FRA is revising paragraph (a)
to state that the purpose of the section
is to reduce ‘‘accident/incidents’’ at GXs
and PXs nationwide by requiring States
and DC to develop or update and
implement Action Plans.
As revised, paragraph (a) reiterates the
existing language clarifying that this
section does not restrict any entity from
adopting an Action Plan with additional
or more stringent requirements, nor
does it restrict any State or DC from
adopting an Action Plan with additional
or more stringent requirements not
inconsistent with this regulation. For
purposes of this section, unless
otherwise stated, the term ‘‘State’’ refers
to any one of the 50 States in the United
States of America or DC; FRA also
separately refers to or identifies DC
within part 234 for clarity in some
instances.
Consistent with the NPRM, paragraph
(b) of this section requires 40 States (the
States other than the initial ten States)
and DC to develop individual Action
Plans that address each of the required
elements listed in paragraph (e) of this
section, and to submit their individual
plans to FRA for review and approval
no later than 14 months after the final
rule publication date. For the reasons
discussed below, in this final rule, FRA
is adding a definition of ‘‘State highwayrail grade crossing action plan’’ to
§ 234.11 to clarify that a State may
prepare and submit a document
specifically designed to satisfy the
requirements of this section or submit
an existing document that contains (or
PO 00000
Frm 00070
Fmt 4700
Sfmt 4700
is amended to include) all the required
elements in § 234.11(e).
For example, to satisfy the
requirements of this final rule, a State
may choose to update its SHSP and
provide the updated SHSP to FRA for
review and approval as its Action Plan.
However, States should be mindful that
updating an existing document to
include all the required elements in
§ 234.11(e) does not change the
underlying nature of the document.
Accordingly, if a State chooses to
update an existing document to include
all the required elements in § 234.11(e),
this final rule does not relieve the State
from complying with all applicable
State or Federal requirements that
govern the existing document.
Also, if a State chooses to update an
existing document, the State is strongly
encouraged to add a separate chapter or
appendix to address the required
elements in paragraph (e) of this section.
In the alternative, the State may add an
index to the updated document that
clearly identifies the specific pages on
which the required elements in
paragraph (e) of this section are
addressed.
Paragraph (b) also requires 40 States
(the States other than the initial ten
States) and DC to submit their Action
Plans electronically through FRA’s
website in Portable Document Format
(PDF). FRA will provide a secure
document submission site for States and
DC to use to upload their Action Plans
for FRA review and approval.
DelDOT, MNDOT, the 130 Group, and
the departments of transportation for
Idaho, North Dakota, South Dakota, and
Wyoming submitted comments on the
proposed requirement in paragraph (b)
to submit individual Action Plans to
FRA for review and approval. DelDOT
noted that the State of Delaware
currently experiences an extremely low
number of train-related crashes and
asserted that developing an Action Plan
would draw resources away from other
ongoing efforts to make a positive safety
impact on the State and its
communities. Accordingly, DelDOT
recommended that FRA establish
guidelines that, if met, would exempt a
State from the requirement to develop
an Action Plan.
The 130 Group also recommended
that FRA establish a threshold that, if
met, would exempt a State from the
requirement to develop an Action Plan.
Specifically, the 130 Group
recommended that FRA establish a
national car-train crash ratio threshold
that would exempt States with car-train
crash ratios lower than the threshold
from the requirement to develop and
E:\FR\FM\14DER1.SGM
14DER1
jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
submit an Action Plan to FRA for
review and approval.
Another commenter, identified as the
Chicagoland Rail Safety Team (CRST),
similarly recommended that FRA
conduct an ‘‘almost perfunctory’’ review
of the Action Plans submitted by States
with the lowest number of grade
crossing fatalities. In addition, CRST
recommended that FRA allow States
with the lowest number of grade
crossing fatalities simply to complete an
FRA-prepared questionnaire.
FRA also received multiple comments
from State agencies, including Alaska
DOT&PF, Washington UTC staff,
SDDOT and the departments of
transportation for Idaho, Montana,
North Dakota, and Wyoming,
recommending that FRA include a
provision in this final rule allowing
States the flexibility to coordinate,
integrate, or incorporate their Action
Plans with other reports, such as the
SHSP or the State Transportation
Improvement Program. The departments
of transportation for Idaho, Montana,
North Dakota, South Dakota, and
Wyoming asserted that integrating the
Action Plans required by this
rulemaking with other plans may
improve implementation, facilitate and
simplify coordination, and promote
synergy with other plans.
Section 11401(b) specifically directed
FRA to issue implementing regulations
requiring each State (except for the
initial ten States) to develop and
implement an Action Plan. Therefore,
this final rule does not exempt any State
from the requirement to develop a
written plan to improve safety at GXs
and PXs. However, recognizing that a
number of States may have already
developed written plans or other
documents addressing GX and PX
safety, as noted above, FRA has added
a definition of ‘‘Action Plan’’ to this
final rule that allows States to submit
existing documents that address GX and
PX safety, if the documents contain (or
are amended to include) all the required
elements listed in paragraph (e) of this
section. As explained above, if a State
chooses to update an existing document,
the document must address all the
required elements listed in paragraph (e)
in a separate chapter or appendix so that
it is clear how it complies with the
requirements for an Action Plan. If a
State decides to submit an existing
document as its Action Plan to FRA for
review and approval, without adding a
separate chapter or appendix, the State
should include an index that shows
where the document addresses each
required element listed in paragraph (e).
MNDOT commented that the 14month period within which States are
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
required to develop Action Plans is
extremely aggressive. However, FRA
does not have the flexibility to extend
the 14-month period for States to
develop and update Action Plans
because FRA is required by Section
11401 to review and approve the Action
Plans and then report to Congress
information about the Action Plans and
their implementation within three years
of the date of this final rule. Therefore,
FRA will work closely with States that
seek FRA’s assistance in preparing their
Action Plans, and allow flexibility to
submit existing documents that contain
(or are amended to include) all the
required elements listed in paragraph (e)
of this section.
DelDOT urged FRA to clarify that the
requirement in paragraph (b) to develop
Action Plans does not contain a duty to
update Action Plans after they have
been approved by FRA. Except for the
initial ten States, the statutory mandate
in Section 11401(b) does not direct FRA
to require States to update their Action
Plans. Therefore, except for the initial
ten States that are required to submit
updated Action Plans this one time, this
final rule does not require States to
update their Action Plans after they are
approved by FRA.
FRA recommends that States update
their Action Plans even though they are
not required to do so. The actions States
must take to develop Action Plans and,
more specifically, to develop specific
strategies for improving grade crossing
safety can, if done properly,
significantly improve safety and
complement other efforts by States to
improve transportation safety generally,
by focusing attention on the State’s GX
and PX safety needs. In this regard,
Action Plans can supplement existing
State efforts to increase the effectiveness
of grade crossing improvements by
adding a planning component to
identify GXs and PXs that have
experienced recent (or multiple)
accident/incidents or are considered
‘‘high-risk’’ for having one or more
accident/incidents in the future.
Currently, paragraph (c) of this
section outlines requirements for the
Action Plans that the initial ten States
were required to submit to FRA by
August 27, 2011. As proposed in the
NPRM and in response to the statutory
mandate in Section 11401(b), this final
rule revises paragraph (c) to require
each of the initial ten States to update
their existing Action Plans and to
provide individual reports on their
efforts to implement their existing plans
and on the continuation of their
strategies to reduce GX and PX safety
risks.
PO 00000
Frm 00071
Fmt 4700
Sfmt 4700
80651
As also proposed in the NPRM,
paragraph (c)(1) of this section requires
each of the initial ten States to update
their existing Action Plans to address
each of the required elements listed in
paragraph (e) of this section within 14
months of the final rule publication
date. (Action Plans developed by the
other 40 States and DC will be required
to address these elements as well.)
Paragraph (c)(1) also requires each of the
initial ten States to submit their updated
Action Plans to FRA for review and
approval.
The list of required elements in
paragraph (e) incorporates many of the
elements that the initial ten States were
required to address in their existing
plans. However, as discussed below,
there are new requirements that the
initial ten States will need to address in
their updated plans. For example, for
consistency with Section 11401(b),
States will need to address PX safety
and States will need to identify the data
sources used to classify PXs and GXs in
one of the categories set forth in
paragraph (e)(1). Below is a more
detailed discussion of paragraph (e)
requirements.
As proposed in the NPRM, paragraph
(c)(2) requires each of the initial ten
States to submit a report to FRA
describing how the State implemented
the Action Plan that it previously
submitted to FRA under 49 CFR 234.11.
Each of these initial ten States is also
required by paragraph (c)(2) to describe
in its report how the State will continue
to reduce GX and PX safety risks. These
requirements are derived from Section
11401(b).
This report, which must address each
proposed initiative or solution
contained in the State’s Action Plan
originally submitted to FRA under 49
CFR 234.11, can be submitted as an
appendix to the State’s updated Action
Plan. As CRST recommends in its
comments, FRA intends to use these
implementation reports to identify
States that have effective Action Plans
in place, as well as States with Action
Plans that need to be improved, so FRA
can provide additional assistance that
may be needed through focused
outreach efforts.
Paragraph (c)(3) has been added to the
final rule, in order to move the list of
the initial ten States from paragraph (d),
as proposed, into paragraph (c) for ease
of reference. This change is not
substantive.
Paragraph (d) of this section requires
the initial ten States to submit their
updated Action Plans and individual
implementation reports electronically in
PDF form. FRA will provide a secure
document submission site for these
E:\FR\FM\14DER1.SGM
14DER1
jbell on DSKJLSW7X2PROD with RULES
80652
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
States to use to upload their updated
Action Plans and implementation
reports for FRA review.
As proposed in the NPRM, paragraph
(e) of this section contains a list of
required elements for new and updated
State Action Plans. These elements are
derived from Section 11401(b)(2), which
mandates that each State Action Plan
‘‘identify [GXs] that have experienced
recent [GX] accidents or incidents or
multiple [GX] accidents or incidents, or
are at high-risk for accidents or
incidents.’’
As noted in the section-by-section
discussion of § 234.5 above, States are
required to address both GXs and PXs
in their Action Plans. Congress
specifically included PXs in Section
11401(b). Therefore, although not
proposed in the NPRM, in deference to
Congressional intent to require States to
address both GXs and PXs, FRA is
requiring States to address PXs in their
Action Plans.
FRA received comments from the 130
Group expressing concern that this final
rule might require States to address
private grade crossings in their Action
Plans. The 130 Group asserted that State
efforts to regulate private crossings
(especially when combined with the
complications of access to private
property) would require significantly
more staff and would open ‘‘a myriad of
legal issues regarding government
oversight of private infrastructure and
operations.’’ Therefore, the 130 Group
recommended that paragraph (e)(1) be
limited to public GXs.
Section 11401(b) specifically includes
private GXs in its definition of the term
‘‘GX.’’ Therefore, FRA has not revised
this final rule to limit its scope to public
GXs. However, FRA recognizes that not
all States exercise jurisdiction over
private grade crossings. Accordingly,
while this final rule requires States to
assess risk levels at private grade
crossings, and to address private grade
crossings that present significant levels
of risk, FRA recognizes that the ability
of States to address risks at private grade
crossings will depend on the level of the
authority individual States exercise over
those crossings (and, in some cases, the
public/private nature of the roadway
leading to the crossing).
In addition, FRA received comments
from a resident of Chicago, Illinois and
the CRST, urging FRA to encourage
States to use an expanded definition of
the term ‘‘GX’’ that would include 1,000
feet on either side of the actual
intersection of the roadway with
railroad tracks. CRST also
recommended, in the alternative, that
FRA send a letter to members of
Congress seeking additional information
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
about the Congressional intent
underlying Section 11401. Specifically,
CRST recommended that FRA confirm
whether Congress intended States to
focus their Action Plans on GXs as
currently defined in 49 CFR 234.5, or
whether Congress intends States to
utilize a more expansive definition,
such as CRST’s proposed definition,
which would include more trespassing
casualties. In support of its
recommendation, CRST pointed to data
included in FRA’s National Strategy to
Prevent Trespassing on Railroad
Property, which indicates that 74
percent of trespasser deaths and injuries
occurred within 1,000 feet of a grade
crossing. Similarly, the resident of
Chicago, Illinois asserted that
trespassing injuries and fatalities should
not be excluded simply because they do
not occur where pavement and rails
intersect. This commenter urged FRA to
require States to differentiate uniformly
between trespasser and vehicle
incidents in their Action Plans, so that
States will collect and categorize this
information separately as incidents
occur.
FRA encourages States in their Action
Plans to evaluate potential risks posed
by trespassing within 1,000 feet of the
actual intersection of the roadway with
the railroad tracks.
Similarly, FRA encourages States to
differentiate between motor vehicle
crashes and pedestrian fatalities and
injuries that occur at GXs and PXs in
their Action Plans and to assess whether
they need to take specific actions to
address pedestrian safety at GXs and
PXs. Nonetheless, FRA received
multiple comments from States,
including the Washington Utilities and
Transportation Commission staff,
SDDOT, and the State departments of
transportation for Idaho, Montana,
North Dakota, and Wyoming, expressing
concern that this rulemaking should
support State efforts to develop simple,
straightforward and low-cost Action
Plans and should not impose additional
regulatory requirements that were not
specifically included in the language of
the FAST Act. Therefore, FRA strongly
recommends that States with GXs and
PXs located near locations identified as
trespasser ‘‘hot spots’’ include strategies
in their Action Plans to address
trespassing, as some GXs and PXs may
be used by individuals to gain access to
the railroad right-of-way. However, in
recognition of the fact that not all States
have significant pedestrian safety
concerns at their highway-rail and
pathway crossings, FRA is not revising
the definition of ‘‘GX’’ in § 234.5 to
include the railroad right-of-way within
1,000 feet of the intersection of the
PO 00000
Frm 00072
Fmt 4700
Sfmt 4700
roadway with the railroad tracks, nor is
FRA requiring States to assume the
additional burden of collecting and
categorizing information about motor
vehicle crashes and pedestrian fatalities
and injuries separately. FRA is
addressing the trespassing issue through
implementation of its National Strategy
to Prevent Trespassing on Railroad
Property (available online at https://
railroads.dot.gov/national-strategyprevent-trespassing).
As proposed in the NPRM, paragraph
(e)(1) would require States to identify in
their Action Plans GXs that: (1) Have
experienced at least one accident or
incident within the previous three
years; (2) have experienced more than
one accident or incident within the
previous five years; or (3) are at ‘‘highrisk’’ for accidents or incidents as
defined by the relevant State or DC.
FRA received comments on the
proposed three-year period in paragraph
(e)(1)(i) from ODOT, which
recommended that the time period be
made consistent with the proposed fiveyear time period in proposed paragraph
(e)(1)(ii). Asserting three years of
accident or incident data may not be
enough to make a determination, ODOT
recommended that a consistent five-year
period would be most appropriate.
However, as noted in the NPRM, FRA
intended to use different time periods in
paragraphs (e)(1)(i) and (e)(1)(ii) to
differentiate between grade crossings
that have experienced ‘‘recent’’
accident/incidents and grade crossings
that have experienced ‘‘multiple’’
accident/incidents as Section 11401(b)
requires. As explained in the NPRM, the
three-year time period in paragraph
(e)(1)(i) is intended to enable States to
identify which individual GXs and PXs
have experienced ‘‘recent’’ accident/
incidents. The five-year time period in
paragraph (e)(1)(ii) is intended to enable
States to identify which individual GXs
and PXs have experienced ‘‘multiple’’
GX accidents/incidents. This five-year
timeframe is consistent with the fiveyear timeframe used by the initial ten
States when they prepared their Action
Plans pursuant to existing § 234.11.
FRA received comments on this 5year period in paragraph (e)(1)(ii) from
MNDOT, in which MNDOT noted the
State of Minnesota has a very low
number of GXs that have experienced
more than one accident or incident in
the previous five years. Therefore,
MNDOT asked whether it would be
permissible for a State to look back over
a longer period to improve its analysis.
Thankfully, as MNDOT points out,
some States have a very low number of
GXs which have experienced more than
one accident/incident in the previous
E:\FR\FM\14DER1.SGM
14DER1
jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
five years. FRA suggests that States with
very low grade crossing accident/
incident numbers should consider
defining what constitutes a GX or PX
with a ‘‘high-risk for accidents or
incidents’’ in accordance with
paragraph (e)(1)(iii) and addressing
those crossings in their Action Plans. As
proposed in the NPRM, paragraph
(e)(1)(iii) allows a State to define what
constitutes grade crossings with a ‘‘highrisk for accidents or incidents’’ and
focus its Action Plan on those crossings.
By choosing this option, as opposed to
trying to identify GXs and PXs that have
experienced previous accidents/
incidents in accordance with paragraph
(e)(1)(i) or (ii), States with low grade
crossing accident/incident numbers can,
within the constraints of paragraph
(e)(1)(iii), use a different set of criteria
to identify GXs and PXs to address in
their Action Plans.
MNDOT also submitted comments on
the proposed paragraph (e)(1)(iii),
noting that the State of Minnesota has
done significant work developing a risk
ranking system for project selection.
Therefore, MNDOT expressed optimism
that, given FRA’s proposal in the
proposed rule to allow States the
flexibility to define ‘‘high risk’’ GXs,
MNDOT may be able to use their
existing risk ranking system to define
‘‘high risk’’ GXs within the State of
Minnesota and thereby reduce plan
development costs.
However, the American Federation of
Labor and Congress of Industrial
Organizations (AFL–CIO), the
Association of American Railroads
(AAR), and an individual commenter
submitted comments expressing
concern with the proposed language in
paragraph (e)(1)(iii) that would allow
States to define what constitutes a ‘‘high
risk’’ GX. AFL–CIO asserted that the
proposed language in paragraph
(e)(1)(iii) would allow States to limit
their efforts to grade crossings where an
accident has already taken place, which
it asserted would be inconsistent with
the spirit of the underlying statutory
mandate. Similarly, while noting that
some level of risk standardization
would likely benefit the nation as a
whole, Mr. Gregory James submitted
comments recommending that FRA
disseminate minimum guidelines for
identifying potentially problematic
grade crossings.
AAR expressed concern that if FRA
does not define what constitutes ‘‘high
risk’’ of an incident occurring at a GX,
the result would be 51 different
definitions of what constitutes ‘‘high
risk.’’ Therefore, AAR recommended
that, at a minimum, FRA should include
factors that States should consider when
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
designating a grade crossing as ‘‘high
risk.’’ For example, AAR recommended
States consider factors such as profile
deficiencies, skew, inadequate sight
distances due to fixed obstructions, and
the density of neighborhood
development along the corridor near a
crossing.
After considering all the comments
received and evaluating the potential
benefits and consequences of allowing
States to define ‘‘high risk’’ grade
crossings for themselves, FRA
determined that the comments provided
by AFL–CIO, Mr. James, and AAR have
merit. Accordingly, in this final rule,
FRA has revised proposed paragraph
(e)(1)(iii) of this section to include a list
of key factors that States are required to
consider in their Action Plans when
identifying ‘‘high-risk’’ crossings under
paragraph (e)(1)(iii) of this section.
These key factors in paragraph (e)(1)(iii)
include the average annual daily traffic,
the total number of trains per day that
travel through the crossing, the total
number of motor vehicle collisions that
have occurred at the crossing during the
previous 5-year period, the number of
main railroad tracks at the crossing, the
number of roadway lanes at the
crossing, sight distance and roadway
geometry at the crossing, and maximum
timetable speed at the crossing.
FRA notes that the key factors listed
in paragraph (e)(1)(iii) are minimum
factors a State must consider if defining
high-risk crossings under paragraph
(e)(1)(iii). Therefore, FRA encourages
States to consider any other factors that
may be present at a particular crossing
that may increase the risk of an
accident/incident. Examples of potential
additional factors a State may find
useful to consider include: The volume
and nature of any hazardous materials
transported through the crossing, the
frequency of any passenger trains
traveling through the crossing, and the
proximity of a school or emergency
service provider, which could cause a
high number of school buses or
emergency service vehicles to travel
through the grade crossing. AFL–CIO
asserted in its comments that increased
pedestrian volume may increase
opportunities for an accident, while
AAR identified the density of
neighborhood development along the
corridor near the crossing as a factor
that can contribute to high risk levels at
a GX.
When evaluating these risk factors
and the overall risk levels at individual
GXs and PXs under paragraph (e)(1)(iii),
FRA recommends States consider the
definition of ‘‘risk’’ provided in 49 CFR
270.5 and 271.5, in which the term
‘‘risk’’ is defined as ‘‘the combination of
PO 00000
Frm 00073
Fmt 4700
Sfmt 4700
80653
the probability (or frequency of
occurrence) and the consequence (or
severity) of a hazard.’’ FRA also
recommends that States describe the
process or formula used to assess risk at
each crossing in their Action Plans.
However, to obtain information about
all the factors considered by States
when identifying GXs and PXs in their
Action Plans as ‘‘high risk,’’ paragraph
(e)(1)(iii) requires States that identify
‘‘high risk’’ crossings under paragraph
(e)(1)(iii) to include in their Action
Plans the complete list of factors
considered in making this
determination.
As proposed in the NPRM, paragraph
(e)(2) requires States to identify the data
sources used to categorize the GXs and
PXs in their Action Plans. To help
States identify GXs and PXs that have
experienced recent accident/incidents,
multiple accident/incidents, or are at
high-risk for accident/incidents, FRA
will provide GX and PX accident/
incident data to States upon request.
FRA will also assist State agencies
electing to use FRA’s Office of Safety
Analysis website to generate customized
reports of GX accident/incident data.
In the NPRM, paragraph (e)(3) would
require States to discuss specific
strategies to improve safety at the
identified crossings over a period of at
least five years. FRA received a number
of comments on this proposed
minimum five-year time period, and for
the reasons discussed below, FRA is
revising proposed paragraph (e)(3) to
provide for a minimum time period of
four years.
The departments of transportation for
Idaho, Montana, North Dakota, South
Dakota, and Wyoming submitted
comments noting that Congress
established planning requirements in
the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA), the
Transportation Equity Act for the 21st
Century (TEA–21), and the Safe
Accountable Flexible Efficient
Transportation Equity: A Legacy for
Users Act (SAFETEA–LU) directing the
State Transportation Improvement
Program (STIP) to span four years.
Accordingly, these State DOTs
recommended that FRA allow States to
align the time frame covered by their
Action Plans with the four-year STIP
time frame, but not require them to do
so. The Alaska DOT&PF, on the other
hand, submitted comments supporting
the proposed five-year minimum time
period. Alaska DOT&PF noted that some
States are not able to insert grade
separations or rail realignment projects
into fiscally constrained STIPs.
After consideration of these
comments, FRA has concluded that
E:\FR\FM\14DER1.SGM
14DER1
jbell on DSKJLSW7X2PROD with RULES
80654
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
providing the flexibility for State Action
Plans to cover a minimum four-year
time period for consistency with other
surface transportation planning
requirements is justified. Accordingly,
FRA is revising proposed paragraph
(e)(3) to provide that State Action Plans
must discuss specific strategies to
improve safety at the identified
crossings over a period of ‘‘at least four
years.’’ FRA intends this change to
facilitate integration of the Action Plans
required by this final rule with existing
State planning mechanisms and
documents (e.g., STIPs, SHSPs, and
State Rail Plans). However, nothing in
this final rule restricts States from
including specific strategies to improve
crossing safety in their Action Plans for
a period longer than four years.
AAR also submitted comments on
paragraph (e)(3), recommending FRA
clarify that, prior to making any changes
to address blocked crossing concerns
that could impact train operations,
States must consult with the railroad
primarily responsible for dispatching
trains through the crossing as indicated
by the name of the railroad on the
Emergency Notification System (ENS)
sign. FRA expects that States seeking to
make changes to address blocked
crossing concerns will, at a minimum,
coordinate with the railroad primarily
responsible for dispatching trains
through the highway-rail or pathway
grade crossing prior to making any
changes that could impact train
operations. Depending on the type of
change envisioned, the State should
contact the railroad primarily
responsible for maintaining the
highway-rail or pathway grade crossing
(if different from the railroad primarily
responsible for dispatching trains
through the crossing) as well. However,
a requirement that States must consult
with railroads prior to implementing
certain types of strategies in their Action
Plans to address blocked crossing
concerns falls beyond the scope of this
rulemaking.
FRA also received comments on
paragraph (e)(3) from Washington UTC
staff, SDDOT, as well as the
departments of transportation for Idaho,
Montana, North Dakota, and Wyoming.
In their comments, these State agencies
recommended that the final rule include
language allowing States to discuss the
types of grade crossing improvement
projects they will address and
emphasize, as opposed to requiring
States to identify specific projects to be
undertaken. The departments of
transportation for Idaho, Montana,
North Dakota, South Dakota, and
Wyoming asserted that this approach
would allow States to set forth policy
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
priorities in their Action Plans. FRA
agrees that States should not be required
to identify specific projects to be
undertaken. Therefore, while FRA
encourages States to identify specific
projects that they may wish to highlight
in their Action Plans, FRA would like
to clarify that this final rule does not
require project identification.
Given Section 11401’s mandate that
FRA prepare and submit a report to
Congress within three years of issuing
this final rule, FRA notes that it intends
to evaluate each Action Plan to assess
whether it provides sufficient
information to inform Congress of
specific strategies that will be
implemented (or continue to be
implemented) by individual States to
improve GX safety. To this end, FRA
agrees with CRST’s comments that FRA
should anticipate its reporting
obligations to Congress, and during
FRA’s review of Action Plans,
disapprove any plans that are not
objective, observable, and measurable.
FRA received comments from
multiple State agencies, including
Washington UTC staff, SDDOT, and
departments of transportation for Idaho,
Montana, North Dakota, and Wyoming,
recommending that the final rule
include language providing for Action
Plans to be considered deficient only if
they are inconsistent with statutory
requirements, so that modest
deficiencies in regulatory planning or
paperwork will not prohibit safety
investments. While de minimis
deficiencies in paperwork should not
lead to an Action Plan being rejected,
FRA disagrees with the
recommendation to consider Action
Plans deficient only if they are
inconsistent with statutory
requirements. Section 11401 specifically
mandates that FRA issue a rule
requiring States to develop and
implement Action Plans that meet
certain requirements. The regulatory
requirements in this final rule respond
to that mandate and enable the effective
and consistent implementation of the
statutory requirements in Section 11401.
For example, paragraph (e)(4) of this
section requires States to provide an
implementation timeline for the
strategies identified in their Action
Plans. Although not specifically
required by Section 11401, this
requirement is designed to help ensure
States implement the strategies
identified in their Action Plans
effectively.
As for the requirement in paragraph
(e)(3) of this section, which requires
States discuss specific strategies for
improving GX and PX safety, CRST
submitted comments recommending
PO 00000
Frm 00074
Fmt 4700
Sfmt 4700
that FRA insist that States incorporate
the safety of pedestrians (at crossings
and along the railroad right-of-way) into
their Action Plans. In support of this
recommendation, CRST asserted that
over the long term, pedestrian fatalities
at grade crossings have not
demonstrated a decreasing trend like
vehicle occupant fatalities at GXs.
Similarly, with respect to proposed
crossing closure projects, CRST stated
that care must be taken to ensure that
closure of the grade crossing will not
result in increased trespassing along the
railroad right-of-way.
FRA agrees that States should
incorporate the safety of pedestrians at
GXs and PXs into their Action Plans.
For example, the FAST Act requires
States to consider crossing closures and
grade separation projects. Therefore, to
avoid introducing new or increased risk,
FRA expects any State contemplating
crossing-closure and/or grade-separation
projects will evaluate not only the
potential reduction in risk to motor
vehicle occupants from the closure or
separation project, but also the potential
impact on trespassing at the location of
any crossing slated for closure.
CRST also urged FRA to consider
making additional changes in this final
rule to address suicides that occur at
crossings and along railroad rights-ofway. For example, CRST recommended
that FRA insist that State Action Plans
include efforts to reduce suicides at
grade crossings, as well as along the
railroad right-of-way, in areas in which
suicides appear to be a significant
problem. If a State has experienced a
high number of suicides at one or more
GXs or PXs, this final rule provides the
flexibility for that State to develop and
include in its Action Plan specific
strategies to address the issue. FRA
encourages any State that has
experienced a high number of suicides
at particular grade crossings to include
specific strategies in its Action Plan to
address suicides at those crossings.
CRST asserted that FRA’s decision not
to include suicide data in FRA’s
periodic summaries of rail-related
injuries and illnesses associated with
railroad operations may dissuade States
from addressing suicides that occur at
crossings and along the railroad right-ofway. Therefore, CRST recommended
that FRA amend 49 CFR 225.41 (Suicide
data) to allow (or require) FRA to report
all deaths in FRA’s summaries of ‘‘total
fatalities.’’ In addition, a resident of
Chicago, Illinois urged FRA to develop
a mechanism in the final rule that
would require railroads to release video
obtained from their outward-facing
locomotive cameras to State coroners
and law enforcement officials upon
E:\FR\FM\14DER1.SGM
14DER1
jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
request, to facilitate State efforts to
determine accurately the cause of death.
Although FRA appreciates these
comments and suggestions, both are
outside the scope of the statutory
authority for this rulemaking. FRA does,
however, maintain several online
resources that provide access to FRA’s
railroad trespassing data, including
certain data related to suicides. One
such resource, FRA’s Trespass and
Suicide Dashboard, allows users to
interact visually with trespass and
suicide data collected by FRA.
Therefore, FRA encourages entities
seeking to view FRA data on fatalities
that occur at GXs (as defined in 49 CFR
234.5), as well as fatalities that occur
along railroad rights-of-way, to visit our
Trespass and Suicide Dashboard, which
is accessible online through FRA’s
website. In addition, FRA notes that it
has an ongoing rulemaking on
Locomotive Image and Audio Recording
Devices for Passenger Trains to
implement a Congressional mandate.7
In adopting paragraph (e)(4), FRA has
corrected a typographical error in the
proposed rule. Paragraph (e)(4) requires
States to provide an implementation
timeline for the specific strategies they
develop to improve safety at the GXs
identified in their Action Plans. In the
proposed rule, FRA erroneously
indicated that the proposed requirement
to discuss these specific strategies in the
State Action Plans was contained in
paragraph (d)(2) of this section. To
correct this error, paragraph (e)(4) in the
final rule requires States to provide an
implementation timeline for ‘‘the
strategies discussed in paragraph (e)(3)
of this section.’’
As proposed in the NPRM, paragraph
(e)(5) requires each State and DC to
designate an official responsible for
managing implementation of the Action
Plan. As noted earlier, FRA will create
a secure document submission site that
States can use to upload Action Plans.
The official designated under this
paragraph will be given primary user
access to the secure document
submission site, as well as the authority
to grant access to secondary users.
Accordingly, the designated State
official will need to register with FRA
to gain primary user access to the secure
document submission site.
Paragraph (f) of this section requires
States and DC to provide contact
information for their designated
officials, so they can be invited to set up
primary user accounts.
Paragraph (f)(2) also requires each
State and DC to notify FRA if a new
official is subsequently designated to
7 84
FR 35712 (July 24, 2019); 49 U.S.C. 20168.
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
manage implementation of its Action
Plan and to provide contact information
for the new designated official. FRA has
modified paragraph (f)(2) from that
proposed in the NPRM in response to
comments submitted by the Alaska
DOT&PF recommending that FRA not
adopt the proposed requirement for
States to maintain updated contact
information. Alaska DOT&PF asserted
that the proposed requirement was too
onerous, especially for a one-time plan
with no ongoing reporting requirement.
FRA agrees that an ongoing
requirement to maintain current contact
information for State Action Plans for
many years seems unnecessary, given
the absence of any requirement to
update the plan. Therefore, FRA has
modified paragraph (f)(2) from that
proposed in the NPRM to limit the
period of time States are required to
maintain current contact information for
their Action Plans to a four-year period
after publication of this final rule. This
requirement will help ensure FRA has
current contact information while States
implement their Action Plan strategies
in accordance with their
implementation timelines. This
requirement will also help ensure FRA
has current contact information
available when FRA prepares the
required report to Congress, while
limiting the burden on States.
Paragraph (g) of this section sets forth
FRA’s review and approval process for
Action Plans. As provided in paragraph
(g)(1), FRA will update its website to
reflect receipt of each new, updated, or
corrected Action Plan. FRA encourages
States to work with FRA staff as they
develop their Action Plans. FRA will
also offer webinars to assist States in
developing and updating their Plans. As
indicated in comments submitted by
CRST, FRA’s ability to provide technical
assistance to States will help ensure
States develop Action Plans that can be
effectively evaluated and implemented.
To avoid delaying implementation of
needed grade crossing safety
improvements, paragraph (g)(2)(i) states
that FRA will conduct a preliminary
review of each new, updated, and
corrected Action Plan within sixty (60)
days of receipt. During this 60-day
review period, FRA will determine
whether a submitted plan has
adequately addressed the elements
prescribed in paragraph (e) of this
section.
FRA acknowledges comments
received on ways to improve the
proposed review process for Action
Plans. Washington UTC staff, and the
departments of transportation for Idaho,
Montana, North Dakota, South Dakota,
and Wyoming recommended that FRA
PO 00000
Frm 00075
Fmt 4700
Sfmt 4700
80655
establish a staggered timeline for States
to submit their Action Plans, in which
States with the highest number of grade
crossing accidents would be required to
submit their plans first. Similarly,
VTrans submitted comments
recommending that the final rule allow
States to submit their Action Plans at
the same time that they submit their
SHSPs (which are generally submitted
in staggered, 5-year cycles).
FRA does not have the flexibility to
allow for a staggered timeline or cycle
for submitting Action Plans to FRA for
review and approval because Section
11401 requires FRA to report to
Congress information about the Action
Plans and their implementation within
three years. However, as noted above,
FRA will offer webinars and work
closely with any State that desires the
Agency’s assistance in developing its
Action Plan. This involvement from
FRA should help ensure the efficiency
of the plan review process.
FRA anticipates that States with a
high number of grade crossing accident/
incidents will submit Action Plans that
are more detailed than those of States
with a low number of grade crossing
accident/incidents. In this regard, FRA
agrees with comments submitted by
CRST and all Action Plans submitted
under this regulation will be carefully
reviewed. DelDOT commented that
FRA’s proposed review process would
create confusion among State officials
who may not feel confident
implementing their Action Plans until
more than 120 days have passed from
the date of FRA’s receipt of their plans.
Alaska DOT&PF recommended that FRA
include FHWA in the review and
approval process for Action Plans, given
the potential need for Federal aid
highway funding to implement the
strategies identified by States in their
Action Plans.
Accordingly, in adopting paragraph
(g)(2)(ii), FRA is clarifying that Action
Plans will be considered conditionally
approved sixty (60) days after receipt by
FRA unless FRA notifies the State’s
designated point of contact that the
Action Plan is incomplete or deficient.
Therefore, if a State has not been
notified that its Action Plan is
incomplete or deficient, a State may
proceed with implementation of its
Action Plan after 60 days have elapsed
from the date of FRA’s receipt of its
plan. In addition, States may verify the
review status of their Action Plans by
checking FRA’s website or contacting
FRA.
Paragraph (g)(2)(iii) states that FRA
reserves the right to conduct a more
comprehensive review of each ‘‘new,
updated, or corrected’’ Action Plan,
E:\FR\FM\14DER1.SGM
14DER1
jbell on DSKJLSW7X2PROD with RULES
80656
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
which may take up to 120 days to
complete. In addition, FRA will
continue to consult and coordinate with
FHWA during FRA’s review of Action
Plans.
Paragraph (g)(3) specifically addresses
Action Plans that FRA determines to be
incomplete or deficient. As reflected in
paragraph (g)(3)(i), if FRA finds a
submitted Action Plan is incomplete or
deficient, it will notify the appropriate
designated official via email of the
specific areas in which the plan is
deficient or incomplete.
Paragraph (g)(3)(ii) requires States and
DC to complete, correct, and resubmit
within 60 days any Action Plan that
FRA deems incomplete or deficient.
This 60-day timeframe is derived from
Section 11401(b)(7), which directs
States to complete their Action Plans
and correct deficiencies identified
within 60 days of the date of FRA
notification.
FRA received a number of comments
from State agencies on the 60-day
correction period contained in
paragraph (g)(3)(ii), including comments
from SDDOT, Washington UTC staff,
and the departments of transportation
for Idaho, Montana, North Dakota, and
Wyoming, recommending that FRA
include a provision in the final rule to
allow States to request an extension of
time to correct any deficiencies
identified during FRA’s review of their
Action Plans, if additional time is
needed to rectify them. Similarly,
Alaska DOT&PF submitted comments
recommending that the final rule allow
at least 120 days for States to correct any
deficiencies identified during FRA’s
review of their Action Plans.
FRA has not, however, established a
separate process in this final rule that
would allow a State to request
additional time to correct deficiencies
identified during FRA’s review of its
Action Plan. While FRA is sympathetic
to the concerns expressed by these State
agencies, Section 11401(b) directs States
to correct deficiencies identified and
resubmit their Action Plans within 60
days from the date on which FRA
notifies them of the deficiencies. In
addition, this 60-day correction period
is twice as long as the 30-day period
within which the initial ten States were
required to correct any deficiencies
identified in their Action Plans.
Therefore, FRA has not expanded the
60-day correction period mandated by
Section 11401(b). Nonetheless, as
previously discussed, FRA intends to
provide webinars and technical
assistance to State agencies during the
14-month period between the
publication date of this final rule and
the submission deadline for State
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
Action Plans to help ensure efficiency
in their development and review.
As provided in paragraph (g)(4)(i),
after FRA has completed its review and
approves a new, updated, or corrected
Action Plan, FRA will notify the State’s
designated official described in
paragraph (e)(5) by email that the Action
Plan has been fully approved.
Paragraph (g)(4)(ii) states that FRA
will make each fully-approved Action
Plan publicly available for online
viewing. This provision is intended to
comply with Section 11401(b)(4)’s
requirement that the FRA Administrator
make each approved Action Plan
publicly available on ‘‘an official
internet website.’’ In addition, to avoid
confusion, FHWA will remove the
original Action Plans submitted by the
initial ten States from its website.
As provided in paragraph (g)(4)(iii),
each State and DC are required to
implement their Action Plans.
Paragraph (h) of this section provides
that the Secretary may condition the
awarding of a rail improvement grant to
a State or DC on the submission of an
FRA-approved Action Plan under this
section. This language reflects the
authority specifically granted to the
Secretary in Section 11401(b)(5).
FRA received comments on the
language in this paragraph from
multiple State agencies. Washington
UTC staff, SDDOT, and the departments
of transportation for Idaho, Montana,
North Dakota, and Wyoming submitted
joint comments expressing concern that
conditioning the awarding of highwayrail crossing funding or grants on having
an approved plan is a risky approach
that may impede important safety
improvements that can save lives and
reduce collisions. The departments of
transportation for Idaho, Montana,
North Dakota, South Dakota, and
Wyoming also noted that State highwayrail crossing project selection should not
be restricted solely by a State’s FRAapproved Action Plan because safety,
feasibility, engineering judgment, and
other factors must also be considered.
FRA agrees that a State’s selection of
highway-rail crossing improvement
projects should not be exclusively
limited to the highway-rail crossing
improvement projects that are
specifically identified in the State’s
FRA-approved Action Plan. However,
FRA believes a properly prepared
Action Plan identifying GXs and PXs
where recent accidents have occurred,
or that a State characterizes as ‘‘highrisk,’’ can inform project selection.
During FRA’s review of applications for
grant funding, FRA often looks for
evidence of advance planning and
identification of crossing safety needs
PO 00000
Frm 00076
Fmt 4700
Sfmt 4700
through data-based risk analysis.
Therefore, by discussing specific
projects in their Action Plans, as well as
the data sources used to identify safety
needs that will be addressed by these
projects, States can use their Action
Plans as a vehicle for providing
evidence of advance planning and databased crossing risk analysis.
Section 234.301
Definitions
As noted in the discussion of § 234.5
above, in this final rule, FRA is
removing the definition of ‘‘pathway
grade crossing’’ from the list of
definitions in § 234.301 (which applies
only to FRA’s Emergency Notification
System regulations in subpart C to 49
CFR part 234). As previously discussed,
by removing the definition of ‘‘pathway
grade crossing’’ from § 234.301 and
moving it to § 234.5, the definition of
‘‘pathway grade crossing’’ will now
apply to all of FRA’s grade crossing
regulations in 49 CFR part 234.
IV. Regulatory Impact and Notices
A. Executive Order 12866,
Congressional Review Act, and DOT
Regulatory Policies and Procedures
This final rule is not a significant
regulatory action within the meaning of
Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ and DOT’s
Administrative Rulemaking, Guidance,
and Enforcement Procedures in 49 CFR
part 5. Pursuant to the Congressional
Review Act,8 the Office of Information
and Regulatory Affairs designated this
rule as not a ‘‘major rule,’’ as defined by
5 U.S.C. 804(2). Details on the estimated
cost of this rule can be found in the
Regulatory Evaluation, which FRA has
prepared and placed in the docket
(docket number FRA–2018–0096).
The purpose of the final rule is to
reduce accident/incidents at GXs and
PXs nationwide. The final rule requires
each State and DC to submit or resubmit to FRA an Action Plan. The final
rule also requires each of the 10 States
that previously created an FRAapproved Action Plan to submit a report
to FRA that describes how the State
implemented its existing Plan and how
the State will continue to reduce GX
and PX safety risks.
Costs
The final rule specifically lists the
required elements for Plans. To
minimize the compliance costs, the final
rule affords each State the flexibility to
develop or update an Action Plan based
upon the individual State’s hazard
assessment.
85
U.S.C. 801 et seq.
E:\FR\FM\14DER1.SGM
14DER1
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
Section 11401(a) required FRA to
develop and distribute a model State
Action Plan. In conjunction with
FHWA, FRA developed a ‘‘HighwayRailway Grade Crossing Action Plan and
Project Prioritization Noteworthy
Practices Guide.’’ FRA shared this guide
with States via letters that included the
data requirements as discussed in
Section 11401. The guide is currently
available on DOT’s website. In addition,
previous Action Plans from the 2010
final rule have also been made available
80657
necessary) an Action Plan if FRA
determines the State’s updated Action
Plan submission to be incomplete.
Collectively, the largest costs for the
other 40 States and DC are: Developing
and submitting an Action Plan to FRA;
and resubmitting (if necessary) an
Action Plan if FRA determines the
State’s previous Action Plan submission
to be incomplete.
As shown in Table 1, the final rule
will result in a total cost of $1.0 million
(PV, 7%), and $1.1 million (PV, 3%).
to the public on DOT’s website. After
issuing this final rule, FRA will provide
States with assistance in developing
their Action Plans.
Table 1 shows the costs associated
with the final rule. The largest costs for
the 10 States that have already
developed an FRA-approved Action
Plan are: Updating and submitting an
Action Plan to FRA; submitting a report
to FRA that describes how the
previously approved Action Plan was
implemented; and resubmitting (if
TABLE 1—COST SUMMARY, DISCOUNTED AT 7% AND 3%
[2017 dollars] 9
States updating existing plan
States creating new plan
All states
Costs
7%
3%
7%
3%
Develop or Update Action plan ................
Submitting Report to FRA ........................
Resubmit Action Plan ..............................
Government Admin. Costs .......................
$350,000
57,000
17,000
........................
$364,000
59,000
18,000
........................
$580,000
........................
24,000
........................
Total Cost .........................................
424,000
441,000
604,000
FRA assumes that all costs will be
incurred in the first year of analysis.
The costs that are derived from the
analysis do not include the costs of
voluntary changes in investments or
operations that States will make when
implementing their Action Plans.
jbell on DSKJLSW7X2PROD with RULES
Benefits
This analysis discusses the nonquantifiable benefits associated with
this final rule. FRA expects that States
developing and implementing Action
Plans may improve the way they
allocate resources for GX and PX
mitigation efforts. The final rule’s
primary benefit will come from a
reduction in the number of GX and PX
accident/incidents and the associated
decrease in fatalities, injuries, and
property damage, as well as diminished
environmental impacts. Last, FRA
anticipates that Action Plans may also
reduce accident severity, as some States
may develop and implement Action
Plans that focus efforts on mitigating
accident/incidents that are more likely
to result in fatalities.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of
1980 10 (RFA) and Executive Order
13272 11 require agency review of
proposed and final rules to assess their
impacts on small entities. When an
agency issues a rulemaking proposal,
the RFA requires the agency to ‘‘prepare
and make available for public comment
rounded to the nearest 1,000.
U.S.C. 601 et seq.
11 67
12 5
Jkt 253001
$602,000
........................
25,000
........................
$930,000
57,000
41,000
20,000
$966,000
59,000
43,000
21,000
627,000
1,048,000
1,089,000
C. Federalism
Executive Order 13132,
‘‘Federalism,’’ 13 requires FRA to
develop an accountable process to
ensure ‘‘meaningful and timely input by
State and local officials in the
development of regulatory policies that
have federalism implications.’’ ‘‘Policies
that have federalism implications’’ are
defined in the Executive order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
10 5
16:47 Dec 11, 2020
3%
an initial regulatory flexibility analysis’’
that will ‘‘describe the impact of the
proposed rule on small entities.’’ 12
Section 605 of the RFA allows an
agency to certify a rule, in lieu of
preparing an analysis, if the proposed
rulemaking is not expected to have a
significant economic impact on a
substantial number of small entities.
In the proposed rule, FRA identified
51 entities (the 50 States and DC) that
will be affected by the rule. Each of the
50 States and DC have a population
greater than 50,000. Therefore, FRA
certified that the rule would not have a
significant economic impact on a
substantial number of small entities.
FRA received no comments regarding
the certification.
The Administrator of FRA hereby
certifies that this final rule will not have
a significant economic impact on a
substantial number of small entities.
9 Numbers
VerDate Sep<11>2014
7%
PO 00000
FR 53461, Aug. 16, 2002.
U.S.C. 603(a).
Frm 00077
Fmt 4700
Sfmt 4700
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 final rule in
accordance with the principles and
criteria contained in Executive Order
13132. FRA has determined that the
final rule will not have substantial
direct effects on the States, on the
relationship between the Federal
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. In addition, FRA
has determined that this final rule,
which complies with a statutory
mandate, will not have federalism
implications that impose substantial
direct compliance costs on State and
local governments. Therefore, the
consultation and funding requirements
13 64
E:\FR\FM\14DER1.SGM
FR 43255, Aug. 10, 1999.
14DER1
80658
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
of Executive Order 13132 do not apply,
and preparation of a federalism
summary impact statement for this final
rule is not required.
D. Paperwork Reduction Act
The information collection
requirements in this rule are being
submitted for approval to the Office of
Management and Budget (OMB) under
Average time per
responses 16
CFR section 15
Respondent universe
234.11(b)—State Action Plans—Development and
submission of new Action Plans (40 States +
DC).
—(c)(1) Updated Action Plans (10 listed
States in § 234.11(e)).
—(c)(2) Implementation reports (10 listed
States in § 234.11(e)).
40 States + DC .............
1.3 plans + 2.3 plans +
4 plans + 6 plans.
10 States .......................
1 plan + 1 plan + 1.3
plans.
1 report + 1 report + 1.3
reports.
—(f)(2) Notification to FRA by State or DC of
another official to assume responsibilities
described under § 234.11(e)(6).
—(g) FRA review and approval of State Action Plans: Disapproved plans needing revision (40 States + DC).
—(g) FRA review and approval of State Action Plans: Disapproved plans needing revision (10 listed states in § 234.11(e)).
50 States + DC .............
2.7 notifications .............
700 hours + 550 hours
+ 200 hours + 60
hours.
1,100 hours + 640
hours + 225 hours.
160 hours + 120 hours
+.
40 hours ........................
5 minutes ......................
40 States + DC .............
.7 plans + .7 plans + 1.3
plans.
10 States .......................
Total .........................................................
N/A ................................
10 States .......................
All estimates include the time for
reviewing instructions; searching
existing data sources; gathering or
maintaining the needed data; and
reviewing the information. For
information or a copy of the paperwork
package submitted to OMB, contact Ms.
Hodan Wells, Information Collection
Clearance Officer, at 202–493–0440.
Organizations and individuals desiring
to submit comments on the collection of
information requirements should direct
them via email to Ms. Wells at
Hodan.Wells@dot.gov.
OMB is required to make a decision
concerning the collection of information
requirements contained in this rule
between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment
to OMB is best assured of having its full
effect if OMB receives it within 30 days
of publication. FRA is not authorized to
impose a penalty on persons for
violating information collection
requirements that do not display a
current OMB control number, if
required. The current OMB control
number for 49 CFR 234.11 is 2130–0589.
E. Environmental Impact
FRA has evaluated this final rule
consistent with the National
Environmental Policy Act (NEPA),18 the
jbell on DSKJLSW7X2PROD with RULES
the Paperwork Reduction Act of 1995.14
The sections that contain the
information collection requirements and
the estimated time to fulfill each
requirement are as follows:
14 44
U.S.C. 3501 et seq.
proposed burdens for §§ 234.11(d), (e), and
(f)(1) are covered under §§ 234.11(b) and (c)(1) and
(2).
16 Based on input from FRA subject matter
experts and feedback from States, the 40 States and
DC that currently do not have an FRA-approved
Action Plan are grouped into four burden levels:
15 The
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
Total annual responses
$206,672
2,040
124,848
333
20,380
.3
20
105 hours + 60 hours +
24 hours.
142
8,690
.3 plans + .3 plans + .3
plans.
165 hours + 96 hours +
34 hours.
98
6,016
27 plans, reports, and
notifications.
N/A ................................
5,991
366,627
High, medium, and low, and minimal burden. For
the 10 States, they are grouped into three burden
levels: High, medium, and low.
17 An hourly compensation rate of $61.20 was
used to calculate the total cost equivalent.
18 42 U.S.C. 4321 et seq.
19 40 CFR parts 1500 through 1508.
20 23 CFR part 771.
Frm 00078
Total cost
equivalent 17
3,377
Council of Environmental Quality’s
NEPA implementing regulations,19 and
FRA’s NEPA implementing
regulations 20 and determined that it is
categorically excluded from
environmental review and therefore
does not require the preparation of an
environmental assessment (EA) or
environmental impact statement (EIS).
Categorical exclusions (CEs) are actions
identified in an agency’s NEPA
implementing regulations that do not
normally have a significant impact on
the environment and therefore do not
require either an EA or EIS.21
Specifically, FRA has determined that
this final rule is categorically excluded
from detailed environmental review
pursuant to 23 CFR 771.116(c)(15),
‘‘[p]romulgation of rules, the issuance of
policy statements, the waiver or
modification of existing regulatory
requirements, or discretionary approvals
that do not result in significantly
increased emissions of air or water
pollutants or noise.’’
The purpose of this rulemaking is to
revise FRA’s State Action Plan
requirements as mandated by the FAST
Act. This rule does not directly or
indirectly impact any environmental
resources and will not result in
significantly increased emissions of air
or water pollutants or noise. Instead, the
PO 00000
Total annual
burden hours
Fmt 4700
Sfmt 4700
final rule is likely to result in safety
benefits. In analyzing the applicability
of a CE, FRA must also consider
whether unusual circumstances are
present that would warrant a more
detailed environmental review.22 FRA
has concluded that no such unusual
circumstances exist with respect to this
final regulation and it meets the
requirements for categorical exclusion
under 23 CFR 771.116(c)(15).
Pursuant to Section 106 of the
National Historic Preservation Act and
its implementing regulations, FRA has
determined this undertaking has no
potential to affect historic properties.23
FRA has also determined that this
rulemaking does not approve a project
resulting in a use of a resource protected
by Section 4(f).24
F. Executive Order 12898
(Environmental Justice)
Executive Order 12898, Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, and DOT
Order 5610.2(a) 25 require DOT agencies
to achieve environmental justice as part
of their mission by identifying and
addressing, as appropriate,
disproportionately high and adverse
human health or environmental effects,
including interrelated social and
21 40
CFR 1508.4.
CFR 771.116(b).
23 16 U.S.C. 470.
24 Department of Transportation Act of 1966, as
amended (Pub. L. 89–670, 80 Stat. 931); 49 U.S.C.
303.
25 91 FR 27534 (May 10, 2012).
22 23
E:\FR\FM\14DER1.SGM
14DER1
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
economic effects, of their programs,
policies, and activities on minority
populations and low-income
populations.
The DOT Order instructs DOT
agencies to address compliance with
Executive Order 12898 and
requirements within the DOT Order in
rulemaking activities, as appropriate.
FRA has evaluated this final rule under
Executive Order 12898 and the DOT
Order and has determined it would not
cause disproportionately high and
adverse human health and
environmental effects on minority
populations or low-income populations.
jbell on DSKJLSW7X2PROD with RULES
G. Unfunded Mandates Reform Act of
1995
Pursuant to Section 201 of the
Unfunded Mandates Reform Act of
1995,26 each Federal agency shall,
unless otherwise prohibited by law,
assess the effects of Federal regulatory
actions on State, local, and tribal
governments, and the private sector
(other than to the extent such
regulations incorporate requirements
specifically set forth in law.) Section
202 of the Act 27 further requires that
before promulgating any general notice
of proposed rulemaking that is likely to
result in the promulgation of any rule
that includes any Federal mandate that
may result in the expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$100,000,000 or more (adjusted
annually for inflation) in any one year,
and before promulgating any final rule
for which a general notice of proposed
rulemaking was published, the agency
shall prepare a written statement
detailing the effect on State, local, and
tribal governments and the private
sector. This final rule will not result in
the expenditure, in the aggregate, of
$100,000,000 or more in any one year
and thus preparation of such a
statement is not required.
H. Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ 28 FRA evaluated this
final rule in accordance with Executive
Order 13211 and determined that this
regulatory action is not a ‘‘significant
energy action’’ within the meaning of
the Executive order.
Executive Order 13783, ‘‘Promoting
Energy Independence and Economic
Growth,’’ requires Federal agencies to
review regulations to determine whether
26 Public
Law 104–4, 2 U.S.C. 1531 et seq.
U.S.C. 1532.
28 66 FR 28355 (May 22, 2001).
they potentially burden the
development or use of domestically
produced energy resources, with
particular attention to oil, natural gas,
coal, and nuclear energy resources.29
FRA determined this final rule will not
burden the development or use of
domestically produced energy
resources.
List of Subjects in 49 CFR Part 234
Highway safety, Penalties, Railroad
safety, Reporting and recordkeeping
requirements, State and local
governments.
The Final Rule
For the reasons discussed in the
preamble, FRA is amending part 234 of
chapter II, subtitle B of title 49, Code of
Federal Regulations, as follows:
PART 234—GRADE CROSSING
SAFETY
1. The authority citation for part 234
is revised to read as follows:
■
Authority: 49 U.S.C. 20103, 20107, 20152,
20160, 21301, 21304, 21311; Sec. 11401, Div.
A, Pub. L. 114–94, 129 Stat. 1679 (49 U.S.C.
22501 note); and 49 CFR 1.89.
2. In § 234.1, revise and republish
paragraph (a) to read as follows:
■
§ 234.1
Scope.
(a) This part prescribes minimum—
(1) Maintenance, inspection, and
testing standards for highway-rail grade
crossing warning systems;
(2) Standards for the reporting of
failures of highway-rail grade crossing
warning systems and for the actions that
railroads must take when such systems
malfunction;
(3) Requirements for certain identified
States to update their existing State
highway-rail grade crossing action plans
and submit reports about the
implementation of their existing plans
and for the remaining States and the
District of Columbia to develop State
highway-rail grade crossing action
plans;
(4) Requirements that certain railroads
establish systems for receiving toll-free
telephone calls reporting various unsafe
conditions at highway-rail grade
crossings and pathway grade crossings,
and for taking certain actions in
response to those calls; and
(5) Requirements for reporting to, and
periodically updating information
contained in, the U.S. DOT National
Highway-Rail Crossing Inventory for
highway-rail and pathway crossings.
*
*
*
*
*
27 2
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
29 82
PO 00000
FR 16093 (Mar. 31, 2017).
Frm 00079
Fmt 4700
Sfmt 4700
80659
3. Revise § 234.5 by adding in
alphabetical order definitions of
‘‘Accident/incident,’’ ‘‘Pathway grade
crossing,’’ and ‘‘State highway-rail grade
crossing action plan or Action Plan’’ to
read as follows:
■
§ 234.5
Definitions.
As used in this part:
Accident/incident means any impact
between railroad on-track equipment
and a highway user at a highway-rail
grade crossing or pathway grade
crossing. The term ‘‘highway user’’
includes automobiles, buses, trucks,
motorcycles, bicycles, farm vehicles,
pedestrians, and all other modes of
surface transportation motorized and
un-motorized.
*
*
*
*
*
Pathway grade crossing means a
pathway that crosses one or more
railroad tracks at grade and that is—
(1) Explicitly authorized by a public
authority or a railroad;
(2) Dedicated for the use of nonvehicular traffic, including pedestrians,
bicyclists, and others; and
(3) Not associated with a public
highway, road, or street, or a private
roadway.
*
*
*
*
*
State highway-rail grade crossing
action plan or Action Plan means a
document submitted to FRA for review
and approval by a State of the United
States (or the District of Columbia),
which contains the elements required
by § 234.11(e) to address safety at
highway-rail and pathway grade
crossings.
*
*
*
*
*
■ 4. Revise § 234.11 to read as follows:
§ 234.11 State highway-rail grade crossing
action plans.
(a) Purpose. The purpose of this
section is to reduce accident/incidents
at highway-rail and pathway grade
crossings nationwide by requiring States
and the District of Columbia to develop
or update highway-rail grade crossing
action plans and implement them. This
section does not restrict any other entity
from adopting a highway-rail grade
crossing action plan. This section also
does not restrict any State or the District
of Columbia from adopting a highwayrail grade crossing action plan with
additional or more stringent
requirements not inconsistent with this
section.
(b) New Action Plans. (1) Except for
the 10 States identified in paragraph
(c)(3) of this section, each State and the
District of Columbia shall develop a
State highway-rail grade crossing action
plan that addresses each of the required
E:\FR\FM\14DER1.SGM
14DER1
jbell on DSKJLSW7X2PROD with RULES
80660
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
elements listed in paragraph (e) of this
section and submit such plan to FRA for
review and approval not later than
February 14, 2022.
(2) Each State and the District of
Columbia shall submit its highway-rail
grade crossing action plan electronically
through FRA’s website in Portable
Document Format (PDF).
(c) Updated Action Plan and
implementation report. (1) Each of the
10 States listed in paragraph (c)(3) of
this section shall develop and submit to
FRA for review and approval an
updated State highway-rail grade
crossing action plan that addresses each
of the required elements listed in
paragraph (e) of this section, not later
than February 14, 2022.
(2) Each of the 10 States listed in
paragraph (c)(3) of this section shall also
develop and submit to FRA, not later
than February 14, 2022, a report
describing:
(i) How the State implemented the
State highway-rail grade crossing action
plan that it previously submitted to FRA
for review and approval; and
(ii) How the State will continue to
reduce highway-rail and pathway grade
crossing safety risks.
(3) The requirements of this paragraph
(c) apply to the following States:
Alabama, California, Florida, Georgia,
Illinois, Indiana, Iowa, Louisiana, Ohio,
and Texas.
(d) Electronic submission of updated
Action Plan and implementation report.
Each of the 10 States listed in paragraph
(d)(2) of this section shall submit its
updated highway-rail grade crossing
action plan and implementation report
electronically through FRA’s website in
PDF form.
(e) Required elements for State
highway-rail grade crossing action
plans. Each State highway-rail grade
crossing action plan described in
paragraphs (b) and (c) of this section
shall:
(1) Identify highway-rail and pathway
grade crossings that:
(i) Have experienced at least one
accident/incident within the previous 3
years;
(ii) Have experienced more than one
accident/incident within the previous 5
years; or
(iii) Are at high-risk for accidents/
incidents as defined in the Action Plan.
Each State or the District of Columbia
that identifies highway-rail and
pathway grade crossings that are at
high-risk for accidents/incidents in its
Action Plan shall provide a list of the
factors that were considered when
making this determination. At a
minimum, these factors shall include:
(A) Average annual daily traffic;
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
(B) Total number of trains per day that
travel through each crossing;
(C) Total number of motor vehicle
collisions at each crossing during the
previous 5-year period;
(D) Number of main tracks at each
crossing;
(E) Number of roadway lanes at each
crossing;
(F) Sight distance (stopping, corner
and clearing) at each crossing;
(G) Roadway geometry (vertical and
horizontal) at each crossing; and
(H) Maximum timetable speed;
(2) Identify data sources used to
categorize the highway-rail and pathway
grade crossings in paragraph (e)(1) of
this section;
(3) Discuss specific strategies,
including highway-rail grade crossing
closures or grade separations, to
improve safety at those crossings over a
period of at least four years;
(4) Provide an implementation
timeline for the strategies discussed in
paragraph (e)(3) of this section; and
(5) Designate an official responsible
for managing implementation of the
State highway-rail grade crossing action
plan.
(f) Point of contact for State highwayrail grade crossing action plans. (1)
When the State or the District of
Columbia submits its highway-rail grade
crossing action plan or updated Action
Plan and implementation report
electronically through FRA’s website,
the following information shall be
provided to FRA for the designated
official described in paragraph (e)(5) of
this section:
(i) The name and title of the
designated official;
(ii) The business mailing address for
the designated official;
(iii) The email address for the
designated official; and
(iv) The daytime business telephone
number for the designated official.
(2) If the State or the District of
Columbia designates another official to
assume the responsibilities described in
paragraph (e)(5) of this section before
December 16, 2024, the State or the
District of Columbia shall contact FRA
and provide the information listed in
paragraph (f)(1) of this section for the
new designated official.
(g) Review and approval. (1) FRA will
update its website to reflect receipt of
each new, updated, or corrected
highway-rail grade crossing action plan
submitted pursuant to this section.
(2)(i) Within 60 days of receipt of each
new, updated, or corrected highway-rail
grade crossing action plan, FRA will
conduct a preliminary review of the
Action Plan to ascertain whether the
elements prescribed in paragraph (e) of
PO 00000
Frm 00080
Fmt 4700
Sfmt 4700
this section are adequately addressed in
the plan.
(ii) Each new, updated, or corrected
State highway-rail grade crossing action
plan shall be considered conditionally
approved for purposes of this section
sixty (60) days after receipt by FRA
unless FRA notifies the designated
official described in paragraph (e)(5) of
this section that the highway-rail grade
crossing action plan is incomplete or
deficient.
(iii) FRA reserves the right to conduct
a more comprehensive review of each
new, updated, or corrected State
highway-rail grade crossing action plan
within 120 days of receipt.
(3) If FRA determines that the new,
updated, or corrected highway-rail
grade crossing action plan is incomplete
or deficient:
(i) FRA will provide email
notification to the designated official
described in paragraph (e)(5) of this
section of the specific areas in which
the Action Plan is deficient or
incomplete and allow the State or the
District of Columbia to complete the
plan and correct the deficiencies
identified.
(ii) Within 60 days of the date of
FRA’s email notification identifying the
specific areas in which the highway-rail
grade crossing action plan is incomplete
or deficient, the State or District of
Columbia shall correct all deficiencies
and submit the corrected State highwayrail grade crossing action plan to FRA
for approval. The corrected highway-rail
grade crossing action plan shall be
submitted electronically through FRA’s
website in PDF format.
(4)(i) When a new, updated, or
corrected State highway-rail grade
crossing action plan is fully approved,
FRA will provide email notification to
the designated official described in
paragraph (e)(5) of this section.
(ii) FRA will make each 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) Condition for grants. The Secretary
of Transportation may condition the
awarding of any grants under 49 U.S.C.
ch. 244 on the State’s or District of
Columbia’s submission of an FRAapproved State highway-rail grade
crossing action plan under this section.
§ 234.301
[Amended]
5. Amend § 234.301 by removing the
definition of ‘‘Pathway grade crossing.’’
■
E:\FR\FM\14DER1.SGM
14DER1
80661
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations
Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator, Federal Railroad
Administration.
Office, 55 Great Republic Drive,
Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT:
Emily Keiley, Fishery Policy Analyst,
(978) 281–9116.
[FR Doc. 2020–26064 Filed 12–11–20; 8:45 am]
BILLING CODE 4910–06–P
SUPPLEMENTARY INFORMATION:
Background
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No.: 201207–0328]
RIN 0648–BJ18
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States;
Amendment 21 to the Summer
Flounder, Scup, and Black Sea Bass
Fishery Management Plan
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This action implements
approved measures for the Mid-Atlantic
Fishery Management Council’s
Amendment 21 to the Summer
Flounder, Scup, and Black Sea Bass
Fishery Management Plan. This rule
changes the summer flounder
commercial state quota allocation
system and fishery management plan
goals and objectives. This action is
intended to increase equity in state
allocations when annual coastwide
commercial quotas are at or above
historical averages, while recognizing
the economic reliance coastal
communities have on the state
allocation percentages currently in
place.
SUMMARY:
Effective January 1, 2021.
ADDRESSES: Copies of Amendment 21,
including the Environmental Impact
Statement, the Regulatory Impact
Review, and the Initial Regulatory
Flexibility Analysis (EIS/RIR/IRFA)
prepared in support of this action are
available from Dr. Christopher M.
Moore, Executive Director, Mid-Atlantic
Fishery Management Council, Suite 201,
800 North State Street, Dover, DE 19901.
The supporting documents are also
accessible via the internet at: https://
www.mafmc.org.
A copy of the Record of Decision
(ROD) for the Final EIS (FEIS) can be
obtained from the NOAA Fisheries
Greater Atlantic Regional Fisheries
jbell on DSKJLSW7X2PROD with RULES
DATES:
VerDate Sep<11>2014
16:47 Dec 11, 2020
Jkt 253001
The Mid-Atlantic Fishery
Management Council and the Atlantic
States Marine Fisheries Commission
cooperatively manage summer flounder
under the provisions of the Summer
Flounder, Scup, and Black Sea Bass
Fishery Management Plan (FMP). The
joint FMP became effective in 1988,
establishing measures to manage
summer flounder fisheries. Summer
flounder is an important commercial
and recreational species. Currently, 60
percent of the total allowable landings
limit (TAL) is allocated to the
commercial fishery (coastwide annual
commercial quota), with the remaining
40 percent allocated to the recreational
fishery. Available quotas are fully
utilized by both sectors in most fishing
years. The coastwide annual
commercial quota is allocated to each of
the states in the management unit
(Maine-North Carolina) on a percentage
basis. The existing commercial state-bystate allocations were last modified in
1993.
Amendment 21 was approved by the
Council and Commission in March
2019. A notice of availability (NOA) for
the amendment published in the
Federal Register on July 29, 2020 (85 FR
45571), with a comment period ending
on September 28, 2020. We published a
proposed rule in the Federal Register on
August 12, 2020 (85 FR 48660), with a
comment period ending on September
11, 2020.
The Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act) allows us to
approve, partially approve, or
disapprove measures recommended by
the Council in an amendment based on
whether the measures are consistent
with the fishery management plan, plan
amendment, the Magnuson-Stevens Act
and its National Standards, and other
applicable law. After considering public
comment on the NOA and proposed
rule, we approved Amendment 21 on
October 19, 2020. This rule implements
the management measures in
Amendment 21. The details of the
development of the measures in
Amendment 21 were described in the
NOA and proposed rule, and are not
repeated here.
PO 00000
Frm 00081
Fmt 4700
Sfmt 4700
Approved Measures
State Commercial Allocations
Amendment 21 changes the state-bystate commercial quota allocations for
summer flounder when the coastwide
quota exceeds 9.55 million lb (4,332
mt). When the coastwide quota is 9.55
million lb (4,332 mt) or less, the quota
will be distributed according to the
current allocation percentages. In years
when the coastwide quota exceeds 9.55
million lb (4,332 mt), any additional
quota, beyond this threshold, will be
distributed in equal shares to all states
except Maine, Delaware, and New
Hampshire, which would split 1 percent
of the additional quota. The Council and
Board selected this allocation
alternative to balance preservation of
historical state access and infrastructure
at recent quota levels, while providing
equitability among states when the stock
and quota are at high levels.
TABLE 1—APPROVED STATE-BY-STATE
SUMMER FLOUNDER QUOTA ALLOCATIONS
State
Allocation
of baseline
quota
≤9.55 mil lb
(4,332
metric tons)
(percent)
Allocation
of additional
quota beyond
9.55 mil lb
(4,332
metric tons)
(percent)
ME ............
NH .............
MA ............
RI ..............
CT .............
NY .............
NJ .............
DE .............
MD ............
VA .............
NC .............
0.04756
0.00046
6.82046
15.68298
2.25708
7.64699
16.72499
0.01779
2.03910
21.31676
27.44584
0.333
0.333
12.375
12.375
12.375
12.375
12.375
0.333
12.375
12.375
12.375
Total ...
100
100
Concurrent to this action we are
considering changes to the 2021
specifications for summer flounder,
scup, and black sea bass (85 FR 73253;
November 17, 2020). If the revised 2021
summer flounder acceptable biological
catch and corresponding specifications
are approved, state allocations of
summer flounder would be initially
distributed as shown in Table 2. Final
2021 allocations, which will take into
account any 2019 or 2020 overages
through October 31, 2020, will be
provided in the final rule establishing
the 2021 specifications.
E:\FR\FM\14DER1.SGM
14DER1
]]>Agencies
[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
[Rules and Regulations]
[Pages 80648-80661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26064]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 234
[Docket No. FRA-2018-0096, Notice No. 2]
RIN 2130-AC72
State Highway-Rail Grade Crossing Action Plans
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FRA is issuing this final rule in response to the Fixing
America's Surface Transportation Act mandate that FRA issue a rule
requiring 40 States and the District of Columbia to develop and
implement highway-rail grade crossing action plans. This final rule
also requires ten States that developed highway-rail grade crossing
action plans as required by the Rail Safety Improvement Act of 2008 and
FRA's implementing regulation to update their plans and submit reports
to FRA describing actions they have taken to implement them.
DATES: This final rule is effective January 13, 2021.
ADDRESSES: Docket: For access to the docket to read background
documents or comments received, go to https://www.regulations.gov and
follow the online instructions for accessing the docket.
FOR FURTHER INFORMATION CONTACT: James Payne, Staff Director, Highway-
Rail Crossing and Trespasser Programs Division (telephone: 202-493-
6005); Debra Chappell, Transportation Specialist (telephone: 202-493-
6018); or Kathryn Gresham, Attorney Adviser, Office of the Chief
Counsel (telephone: 202-493-6063).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Funding
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Order 12866, Congressional Review Act, and DOT
Regulatory Policies and Procedures
B. Regulatory Flexibility Determination
C. Federalism
D. Paperwork Reduction Act
E. Environmental Impact
F. Executive Order 12898 (Environmental Justice)
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Executive Summary
This final rule revises FRA's regulation (49 CFR 234.11) on State
highway-rail grade crossing action plans (Action Plans) to require 40
States and the District of Columbia (DC) to develop and implement FRA-
approved Action Plans. The final rule also requires ten States that
were previously required to develop Action Plans by the Rail Safety
Improvement Act of 2008 \1\ (RSIA) and FRA's implementing regulation at
49 CFR 234.11 to update their plans and submit reports describing the
actions they have taken to implement their plans.
---------------------------------------------------------------------------
\1\ Public Law 110-432.
---------------------------------------------------------------------------
This final rule is intended to implement the Fixing America's
Surface Transportation Act (FAST Act) mandate that the FRA
Administrator promulgate a regulation requiring States to develop,
implement (and update, if applicable) Action Plans.\2\ In RSIA,
Congress directed the Secretary of Transportation (Secretary) to
identify the ten States that had the most highway-rail grade crossing
(GX) collisions, on average, over the previous three years, and require
those States to develop Action Plans for the Secretary's approval.\3\
RSIA required the Action Plans to ``identify specific solutions for
improving'' grade crossing safety and to ``focus on crossings that have
experienced multiple accidents or are at high risk'' for accidents.
Using FRA's database of reported GX accidents/incidents that occurred
at public and private grade crossings, FRA determined the following ten
States had the most reported GX accidents/incidents at public and
private grade crossings during the three-year period from 2006 through
2008: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa,
Louisiana, Ohio, and Texas. Therefore, on June 28, 2010, FRA issued a
final rule (2010 final rule) requiring these ten States to develop
Action Plans and submit them to FRA for approval (based on the
Secretary's delegation of authority to the Federal Railroad
Administrator in 49 CFR 1.89).\4\
---------------------------------------------------------------------------
\2\ 49 U.S.C. 11401.
\3\ RSIA, Sec. 202.
\4\ 75 FR 36551 (June 28, 2010) (codified at 49 CFR 234.11).
---------------------------------------------------------------------------
Section 11401 of the FAST Act (Section 11401) \5\ tasks the FRA
Administrator with promulgating a regulation requiring these ten States
to update the Action Plans they previously submitted to FRA under 49
CFR 234.11. This statutory mandate also directs FRA to include a
regulatory provision that requires each of these ten States to submit a
report to FRA describing: (a) What the State did to implement its
previous Action Plan; and (b) how the State will continue to reduce GX
safety risks. As for the other 40 States and DC, Section 11401(b)(1)(B)
requires the FRA Administrator to promulgate a regulation requiring
them to develop and implement State Action Plans.
---------------------------------------------------------------------------
\5\ 49 U.S.C. 11401.
---------------------------------------------------------------------------
The FAST Act mandate contains specific requirements for the
contents of the Action Plans. As set forth in Section 11401(b)(2), each
Action Plan must identify GXs that: (a) Have experienced recent GX
accidents or incidents; (b) have experienced multiple GX accidents or
incidents; or (c) are at high-risk for accidents or incidents. Section
11401(b)(2) further provides that each Action Plan must identify
specific strategies for improving safety at GXs, including GX closures
or grade separations, and that each State Action Plan must designate a
State official responsible for managing implementation of the plan.
In addition, the FAST Act mandate contains requirements related to
FRA's review and approval of State Action Plans, as well as
requirements related to the publication of FRA-approved plans. For
example, when FRA approves a State's Action Plan, Section 11401(b)(4)
requires FRA to make the approved plan publicly available on an
``official internet website.''
If a State submits an Action Plan FRA deems incomplete or
deficient, Section 11401(b)(6) requires FRA to notify the State of the
specific areas in which the plan is deficient. In addition, Section
11401(b)(6) requires States to correct any identified deficiencies and
resubmit their corrected plans to FRA within 60 days from FRA's
notification of the deficiency. If a State fails to meet this 60-day
deadline for correcting deficiencies identified by FRA, Section
11401(b)(8) requires FRA to post a notice on an ``official internet
website'' that the State has an incomplete or deficient Action Plan.
FRA personnel, including FRA regional grade crossing managers,
inspectors, and specialists and experts from FRA's Highway-Rail
Crossing and Trespasser Programs Division, are available to assist
States with developing, implementing, and
[[Page 80649]]
updating their Action Plans. For example, as further explained in the
Section-by-Section Analysis below, FRA will offer webinars as well as
provide GX accident/incident data to States upon request. FRA will also
assist State agencies that wish to use FRA's Office of Safety Analysis
website (https://railroads.dot.gov/safety-data) to generate customized
reports of GX accident/incident data.
II. Funding
FRA received comments recommending that Federal funding should be
available to offset the costs associated with State efforts to develop
and update Action Plans, as required by this final rule. Delaware DOT
(DelDOT) commented that dedicated funding should be available for
States to develop and implement their Action Plans as required by FRA,
while the Vermont Agency of Transportation (VTrans) submitted comments
encouraging FRA to include funding to States in carrying out this
requirement. Otherwise, DelDOT asserted that the costs associated with
developing and implementing an Action Plan would prohibit or delay the
State's implementation of safety improvements.
The statutory mandate for this rulemaking did not contain any
provision that would authorize dedicated Federal funding for the Action
Plans. However, Section 11401(d) allows for States to use Federal funds
allocated through the Federal Highway Administration's (FHWA) Railway-
Highway Crossings (Section 130) Program to develop and update their
Action Plans as required by this final rule. In addition, the two
percent limitation on the use of Section 130 funds apportioned to a
State allowed by 23 U.S.C. 130(k) for the compilation and analysis of
data in support of the Rail-Highway Crossings Program annual reports
does not restrict the use of Section 130 funds to develop or update
Action Plans. However, FRA recommends States contact their local FHWA
Division Office for more information, if they have questions about the
use of Section 130 funds or any other FHWA-administered funds to
develop or update their Action Plans.
Minnesota DOT (MNDOT) submitted comments requesting specific
guidance on how States may use Section 130 funds to develop their
Action Plans. In particular, MNDOT asked if States may use Section 130
funds to offset the cost of developing Action Plans at 100 percent
funding, or whether States will be required to come up with a 10
percent match. In addition, if States will be required to come up with
a 10 percent match, MNDOT asked if the State of Minnesota can use funds
in its Grade Crossing Safety Account as the 10 percent match. Under 23
U.S.C. 130(f)(3), the Federal share of rail-highway crossing projects
using Section 130 set-aside funds is 90 percent. The question regarding
State of Minnesota Grade Crossing Safety Account funds falls outside
the scope of this rulemaking, as the State of Minnesota administers the
distribution of State funding. As such, FRA recommends that MNDOT
coordinate with the appropriate agency to obtain guidance on that
issue.
III. Section-by-Section Analysis
Section 234.1 Scope
This section discusses the scope of part 234. As proposed in the
notice of proposed rulemaking (NPRM),\6\ FRA is revising paragraph
(a)(3) to reflect the revised requirements contained in 49 CFR 234.11
as a result of the FAST Act mandate and indicate that these revised
requirements are within the scope of this part.
---------------------------------------------------------------------------
\6\ 84 FR 60032 (Nov. 7, 2019).
---------------------------------------------------------------------------
Section 234.5 Definitions
Although FRA proposed no new definitions in the NPRM, after
reviewing the comments received in response to the NPRM, in this final
rule, FRA is adding definitions for three terms used in Sec. 234.11 to
the list of definitions in Sec. 234.5.
The first definition FRA is adding is the definition of the term
``accident/incident,'' which FRA is adopting, in part, from the
definition of the term in 49 CFR 225.5. Specifically, this final rule
defines ``accident/incident'' as any impact between railroad on-track
equipment and a highway user at a GX or pathway grade crossing (PX).
The definition further notes that the term ``highway user'' includes
automobiles, buses, trucks, motorcycles, bicycles, farm vehicles,
pedestrians, and all other modes of surface transportation, motorized
and un-motorized.
FRA received a number of comments on its proposal to replace the
term ``collisions'' in Sec. 234.11(a) with the term ``accidents,'' and
to use the term ``accident or incident'' in Sec. 234.11(e) when
describing required Action Plan elements. MNDOT and the Oregon
Department of Transportation (ODOT) commented that use of the terms
``accidents'' (used in proposed paragraph (a)) and ``accident or
incident'' (used in proposed paragraph (e)) would be confusing. MNDOT
recommended that FRA define these terms in the final rule. ODOT
recommended that FRA use a single word or word combination consistently
throughout the final rule, instead of switching back and forth between
``accident'' and the word combination ``accident or incident.'' A
resident of Chicago, Illinois also commented that the phrase ``accident
or incident'' is too vague.
In addition, FRA received comments from one or more unnamed
individuals calling themselves the ``State Program Managers Section
130/State [GX] Program Office,'' and self-described as having a
combined 50 years of public service experience and over 25 years of
experience managing Section 130 programs. FRA refers to this commenter
as the ``130 Group'' to distinguish them from official comments
submitted on behalf of Section 130 Program Managers for one or more
State departments of transportation. In their comments, the 130 Group
recommended FRA use the term ``collision'' or the term ``crash'' in
this final rule for consistency with other highway safety programs that
seek to mitigate the frequency and severity of incidents. The 130 Group
explained that use of the term ``accident'' has been discouraged
because a train always has the right of way and a vehicle must always
stop or approach a grade crossing prepared to stop.
The Alaska Department of Transportation and Public Facilities
(Alaska DOT&PF) also prefers the word ``crashes.'' Alaska DOT&PF
asserted in its comments that ``crashes'' is the terminology more
commonly recognized by traffic safety practitioners and interest groups
and recommended that FRA at least explain why the term is not used, if
not adopted in the final rule.
After considering these comments, in this final rule, FRA is
adopting a slightly revised term, ``accident/incident.'' In making this
decision, FRA relied heavily on the plain language of Section 11401(b),
which specifically refers to ``[GX] accidents or incidents'' as one of
the primary factors for identifying GXs that must be addressed by
States in their Action Plans. FRA notes that the word combination
``accidents or incidents'' used in Section 11401(b) is essentially the
same as the term ``accident/incidents,'' which has been used for years
in FRA's accident reporting regulations in 49 CFR part 225.
This final rule also moves the existing definition of ``pathway
grade crossing'' from Sec. 234.301 (which applies only to FRA's
Emergency Notification System regulations in subpart C to 49 CFR part
234) to Sec. 234.5. Although FRA did not propose to move this
definition in the
[[Page 80650]]
NPRM, by moving it to Sec. 234.5 in this final rule, the definition
will now apply to all of FRA's grade crossing regulations in 49 CFR
part 234. For purposes of this final rule, including the definition in
Sec. 234.5 will make clear the term's meaning as it is used in Sec.
234.11, which as revised, requires States to address safety at PXs, as
well as GXs, in their Action Plans. This change is consistent with the
mandate of Section 11401(e), which defines ``highway-rail grade
crossing'' to include locations where ``a pathway explicitly authorized
by a public authority or a railroad carrier . . . crosses one or more
railroad tracks either at grade or grade-separated.'' Specifically, in
this final rule, FRA is defining the term ``pathway grade crossing'' in
Sec. 234.5 to mean a pathway that crosses one or more railroad tracks
at grade and that is: (1) Explicitly authorized by a public authority
or a railroad; (2) dedicated for the use of non-vehicular traffic,
including pedestrians, bicyclists, and others; and (3) not associated
with a public highway, road, or street, or a private roadway.
Pathways that are contiguous with, or separate but adjacent to, GXs
are part of the GX and are not separate crossings. However, as
explained in FRA's Guide for Preparing U.S. DOT Crossing Inventory
Forms, pathways that intersect with one or more railroad tracks more
than 25 feet from the location where a highway, road, or street
intersects with one or more railroad tracks are generally separate PXs.
The comments regarding this term and FRA's responses are further
discussed below in the discussion regarding Sec. 234.11.
FRA is also adding a definition of ``State highway-rail grade
crossing action plan'' or ``Action Plan.'' This definition is being
added in response to multiple comments from State agencies, including
Alaska DOT&PF, Washington Utilities and Transportation Commission staff
(Washington UTC staff), the South Dakota Department of Transportation
(SDDOT) and the departments of transportation for Idaho, Montana, North
Dakota, and Wyoming, recommending that FRA allow States the flexibility
to coordinate, integrate, or incorporate their Action Plans with other
reports, such as the Strategic Highway Safety Program (SHSP) or the
State Transportation Improvement Program. Specifically, this final rule
defines ``State highway-rail grade crossing action plan'' or ``Action
Plan'' as a document submitted to FRA for review and approval by a
State of the United States (or DC), which contains the elements
required by Sec. 234.11(e) to address safety at highway-rail and
pathway grade crossings. Therefore, a State may comply with this final
rule by submitting an existing document to FRA that addresses GX and PX
safety, provided the existing document contains (or is amended to
include) all the required elements in Sec. 234.11(e).
Section 234.11 State Highway-Rail Grade Crossing Action Plans
Currently, paragraph (a) of this section indicates that the purpose
of this section is to reduce ``collisions'' at GXs in the ten States
that had the most GX collisions from 2006-2008 (the ``initial ten
States''). Existing paragraph (a) also makes clear that this section
does not restrict any other entity from adopting an Action Plan, nor
would it restrict any State or DC from adopting an Action Plan with
additional or more stringent requirements not inconsistent with this
regulation. In the NPRM, FRA proposed to replace the word
``collisions'' with the word ``accidents'' for consistency with the
language of Section 11401(b). For the reasons discussed above, in this
final rule, FRA is revising paragraph (a) to state that the purpose of
the section is to reduce ``accident/incidents'' at GXs and PXs
nationwide by requiring States and DC to develop or update and
implement Action Plans.
As revised, paragraph (a) reiterates the existing language
clarifying that this section does not restrict any entity from adopting
an Action Plan with additional or more stringent requirements, nor does
it restrict any State or DC from adopting an Action Plan with
additional or more stringent requirements not inconsistent with this
regulation. For purposes of this section, unless otherwise stated, the
term ``State'' refers to any one of the 50 States in the United States
of America or DC; FRA also separately refers to or identifies DC within
part 234 for clarity in some instances.
Consistent with the NPRM, paragraph (b) of this section requires 40
States (the States other than the initial ten States) and DC to develop
individual Action Plans that address each of the required elements
listed in paragraph (e) of this section, and to submit their individual
plans to FRA for review and approval no later than 14 months after the
final rule publication date. For the reasons discussed below, in this
final rule, FRA is adding a definition of ``State highway-rail grade
crossing action plan'' to Sec. 234.11 to clarify that a State may
prepare and submit a document specifically designed to satisfy the
requirements of this section or submit an existing document that
contains (or is amended to include) all the required elements in Sec.
234.11(e).
For example, to satisfy the requirements of this final rule, a
State may choose to update its SHSP and provide the updated SHSP to FRA
for review and approval as its Action Plan. However, States should be
mindful that updating an existing document to include all the required
elements in Sec. 234.11(e) does not change the underlying nature of
the document. Accordingly, if a State chooses to update an existing
document to include all the required elements in Sec. 234.11(e), this
final rule does not relieve the State from complying with all
applicable State or Federal requirements that govern the existing
document.
Also, if a State chooses to update an existing document, the State
is strongly encouraged to add a separate chapter or appendix to address
the required elements in paragraph (e) of this section. In the
alternative, the State may add an index to the updated document that
clearly identifies the specific pages on which the required elements in
paragraph (e) of this section are addressed.
Paragraph (b) also requires 40 States (the States other than the
initial ten States) and DC to submit their Action Plans electronically
through FRA's website in Portable Document Format (PDF). FRA will
provide a secure document submission site for States and DC to use to
upload their Action Plans for FRA review and approval.
DelDOT, MNDOT, the 130 Group, and the departments of transportation
for Idaho, North Dakota, South Dakota, and Wyoming submitted comments
on the proposed requirement in paragraph (b) to submit individual
Action Plans to FRA for review and approval. DelDOT noted that the
State of Delaware currently experiences an extremely low number of
train-related crashes and asserted that developing an Action Plan would
draw resources away from other ongoing efforts to make a positive
safety impact on the State and its communities. Accordingly, DelDOT
recommended that FRA establish guidelines that, if met, would exempt a
State from the requirement to develop an Action Plan.
The 130 Group also recommended that FRA establish a threshold that,
if met, would exempt a State from the requirement to develop an Action
Plan. Specifically, the 130 Group recommended that FRA establish a
national car-train crash ratio threshold that would exempt States with
car-train crash ratios lower than the threshold from the requirement to
develop and
[[Page 80651]]
submit an Action Plan to FRA for review and approval.
Another commenter, identified as the Chicagoland Rail Safety Team
(CRST), similarly recommended that FRA conduct an ``almost
perfunctory'' review of the Action Plans submitted by States with the
lowest number of grade crossing fatalities. In addition, CRST
recommended that FRA allow States with the lowest number of grade
crossing fatalities simply to complete an FRA-prepared questionnaire.
FRA also received multiple comments from State agencies, including
Alaska DOT&PF, Washington UTC staff, SDDOT and the departments of
transportation for Idaho, Montana, North Dakota, and Wyoming,
recommending that FRA include a provision in this final rule allowing
States the flexibility to coordinate, integrate, or incorporate their
Action Plans with other reports, such as the SHSP or the State
Transportation Improvement Program. The departments of transportation
for Idaho, Montana, North Dakota, South Dakota, and Wyoming asserted
that integrating the Action Plans required by this rulemaking with
other plans may improve implementation, facilitate and simplify
coordination, and promote synergy with other plans.
Section 11401(b) specifically directed FRA to issue implementing
regulations requiring each State (except for the initial ten States) to
develop and implement an Action Plan. Therefore, this final rule does
not exempt any State from the requirement to develop a written plan to
improve safety at GXs and PXs. However, recognizing that a number of
States may have already developed written plans or other documents
addressing GX and PX safety, as noted above, FRA has added a definition
of ``Action Plan'' to this final rule that allows States to submit
existing documents that address GX and PX safety, if the documents
contain (or are amended to include) all the required elements listed in
paragraph (e) of this section. As explained above, if a State chooses
to update an existing document, the document must address all the
required elements listed in paragraph (e) in a separate chapter or
appendix so that it is clear how it complies with the requirements for
an Action Plan. If a State decides to submit an existing document as
its Action Plan to FRA for review and approval, without adding a
separate chapter or appendix, the State should include an index that
shows where the document addresses each required element listed in
paragraph (e).
MNDOT commented that the 14-month period within which States are
required to develop Action Plans is extremely aggressive. However, FRA
does not have the flexibility to extend the 14-month period for States
to develop and update Action Plans because FRA is required by Section
11401 to review and approve the Action Plans and then report to
Congress information about the Action Plans and their implementation
within three years of the date of this final rule. Therefore, FRA will
work closely with States that seek FRA's assistance in preparing their
Action Plans, and allow flexibility to submit existing documents that
contain (or are amended to include) all the required elements listed in
paragraph (e) of this section.
DelDOT urged FRA to clarify that the requirement in paragraph (b)
to develop Action Plans does not contain a duty to update Action Plans
after they have been approved by FRA. Except for the initial ten
States, the statutory mandate in Section 11401(b) does not direct FRA
to require States to update their Action Plans. Therefore, except for
the initial ten States that are required to submit updated Action Plans
this one time, this final rule does not require States to update their
Action Plans after they are approved by FRA.
FRA recommends that States update their Action Plans even though
they are not required to do so. The actions States must take to develop
Action Plans and, more specifically, to develop specific strategies for
improving grade crossing safety can, if done properly, significantly
improve safety and complement other efforts by States to improve
transportation safety generally, by focusing attention on the State's
GX and PX safety needs. In this regard, Action Plans can supplement
existing State efforts to increase the effectiveness of grade crossing
improvements by adding a planning component to identify GXs and PXs
that have experienced recent (or multiple) accident/incidents or are
considered ``high-risk'' for having one or more accident/incidents in
the future.
Currently, paragraph (c) of this section outlines requirements for
the Action Plans that the initial ten States were required to submit to
FRA by August 27, 2011. As proposed in the NPRM and in response to the
statutory mandate in Section 11401(b), this final rule revises
paragraph (c) to require each of the initial ten States to update their
existing Action Plans and to provide individual reports on their
efforts to implement their existing plans and on the continuation of
their strategies to reduce GX and PX safety risks.
As also proposed in the NPRM, paragraph (c)(1) of this section
requires each of the initial ten States to update their existing Action
Plans to address each of the required elements listed in paragraph (e)
of this section within 14 months of the final rule publication date.
(Action Plans developed by the other 40 States and DC will be required
to address these elements as well.) Paragraph (c)(1) also requires each
of the initial ten States to submit their updated Action Plans to FRA
for review and approval.
The list of required elements in paragraph (e) incorporates many of
the elements that the initial ten States were required to address in
their existing plans. However, as discussed below, there are new
requirements that the initial ten States will need to address in their
updated plans. For example, for consistency with Section 11401(b),
States will need to address PX safety and States will need to identify
the data sources used to classify PXs and GXs in one of the categories
set forth in paragraph (e)(1). Below is a more detailed discussion of
paragraph (e) requirements.
As proposed in the NPRM, paragraph (c)(2) requires each of the
initial ten States to submit a report to FRA describing how the State
implemented the Action Plan that it previously submitted to FRA under
49 CFR 234.11. Each of these initial ten States is also required by
paragraph (c)(2) to describe in its report how the State will continue
to reduce GX and PX safety risks. These requirements are derived from
Section 11401(b).
This report, which must address each proposed initiative or
solution contained in the State's Action Plan originally submitted to
FRA under 49 CFR 234.11, can be submitted as an appendix to the State's
updated Action Plan. As CRST recommends in its comments, FRA intends to
use these implementation reports to identify States that have effective
Action Plans in place, as well as States with Action Plans that need to
be improved, so FRA can provide additional assistance that may be
needed through focused outreach efforts.
Paragraph (c)(3) has been added to the final rule, in order to move
the list of the initial ten States from paragraph (d), as proposed,
into paragraph (c) for ease of reference. This change is not
substantive.
Paragraph (d) of this section requires the initial ten States to
submit their updated Action Plans and individual implementation reports
electronically in PDF form. FRA will provide a secure document
submission site for these
[[Page 80652]]
States to use to upload their updated Action Plans and implementation
reports for FRA review.
As proposed in the NPRM, paragraph (e) of this section contains a
list of required elements for new and updated State Action Plans. These
elements are derived from Section 11401(b)(2), which mandates that each
State Action Plan ``identify [GXs] that have experienced recent [GX]
accidents or incidents or multiple [GX] accidents or incidents, or are
at high-risk for accidents or incidents.''
As noted in the section-by-section discussion of Sec. 234.5 above,
States are required to address both GXs and PXs in their Action Plans.
Congress specifically included PXs in Section 11401(b). Therefore,
although not proposed in the NPRM, in deference to Congressional intent
to require States to address both GXs and PXs, FRA is requiring States
to address PXs in their Action Plans.
FRA received comments from the 130 Group expressing concern that
this final rule might require States to address private grade crossings
in their Action Plans. The 130 Group asserted that State efforts to
regulate private crossings (especially when combined with the
complications of access to private property) would require
significantly more staff and would open ``a myriad of legal issues
regarding government oversight of private infrastructure and
operations.'' Therefore, the 130 Group recommended that paragraph
(e)(1) be limited to public GXs.
Section 11401(b) specifically includes private GXs in its
definition of the term ``GX.'' Therefore, FRA has not revised this
final rule to limit its scope to public GXs. However, FRA recognizes
that not all States exercise jurisdiction over private grade crossings.
Accordingly, while this final rule requires States to assess risk
levels at private grade crossings, and to address private grade
crossings that present significant levels of risk, FRA recognizes that
the ability of States to address risks at private grade crossings will
depend on the level of the authority individual States exercise over
those crossings (and, in some cases, the public/private nature of the
roadway leading to the crossing).
In addition, FRA received comments from a resident of Chicago,
Illinois and the CRST, urging FRA to encourage States to use an
expanded definition of the term ``GX'' that would include 1,000 feet on
either side of the actual intersection of the roadway with railroad
tracks. CRST also recommended, in the alternative, that FRA send a
letter to members of Congress seeking additional information about the
Congressional intent underlying Section 11401. Specifically, CRST
recommended that FRA confirm whether Congress intended States to focus
their Action Plans on GXs as currently defined in 49 CFR 234.5, or
whether Congress intends States to utilize a more expansive definition,
such as CRST's proposed definition, which would include more
trespassing casualties. In support of its recommendation, CRST pointed
to data included in FRA's National Strategy to Prevent Trespassing on
Railroad Property, which indicates that 74 percent of trespasser deaths
and injuries occurred within 1,000 feet of a grade crossing. Similarly,
the resident of Chicago, Illinois asserted that trespassing injuries
and fatalities should not be excluded simply because they do not occur
where pavement and rails intersect. This commenter urged FRA to require
States to differentiate uniformly between trespasser and vehicle
incidents in their Action Plans, so that States will collect and
categorize this information separately as incidents occur.
FRA encourages States in their Action Plans to evaluate potential
risks posed by trespassing within 1,000 feet of the actual intersection
of the roadway with the railroad tracks.
Similarly, FRA encourages States to differentiate between motor
vehicle crashes and pedestrian fatalities and injuries that occur at
GXs and PXs in their Action Plans and to assess whether they need to
take specific actions to address pedestrian safety at GXs and PXs.
Nonetheless, FRA received multiple comments from States, including the
Washington Utilities and Transportation Commission staff, SDDOT, and
the State departments of transportation for Idaho, Montana, North
Dakota, and Wyoming, expressing concern that this rulemaking should
support State efforts to develop simple, straightforward and low-cost
Action Plans and should not impose additional regulatory requirements
that were not specifically included in the language of the FAST Act.
Therefore, FRA strongly recommends that States with GXs and PXs located
near locations identified as trespasser ``hot spots'' include
strategies in their Action Plans to address trespassing, as some GXs
and PXs may be used by individuals to gain access to the railroad
right-of-way. However, in recognition of the fact that not all States
have significant pedestrian safety concerns at their highway-rail and
pathway crossings, FRA is not revising the definition of ``GX'' in
Sec. 234.5 to include the railroad right-of-way within 1,000 feet of
the intersection of the roadway with the railroad tracks, nor is FRA
requiring States to assume the additional burden of collecting and
categorizing information about motor vehicle crashes and pedestrian
fatalities and injuries separately. FRA is addressing the trespassing
issue through implementation of its National Strategy to Prevent
Trespassing on Railroad Property (available online at https://railroads.dot.gov/national-strategy-prevent-trespassing).
As proposed in the NPRM, paragraph (e)(1) would require States to
identify in their Action Plans GXs that: (1) Have experienced at least
one accident or incident within the previous three years; (2) have
experienced more than one accident or incident within the previous five
years; or (3) are at ``high-risk'' for accidents or incidents as
defined by the relevant State or DC.
FRA received comments on the proposed three-year period in
paragraph (e)(1)(i) from ODOT, which recommended that the time period
be made consistent with the proposed five-year time period in proposed
paragraph (e)(1)(ii). Asserting three years of accident or incident
data may not be enough to make a determination, ODOT recommended that a
consistent five-year period would be most appropriate.
However, as noted in the NPRM, FRA intended to use different time
periods in paragraphs (e)(1)(i) and (e)(1)(ii) to differentiate between
grade crossings that have experienced ``recent'' accident/incidents and
grade crossings that have experienced ``multiple'' accident/incidents
as Section 11401(b) requires. As explained in the NPRM, the three-year
time period in paragraph (e)(1)(i) is intended to enable States to
identify which individual GXs and PXs have experienced ``recent''
accident/incidents. The five-year time period in paragraph (e)(1)(ii)
is intended to enable States to identify which individual GXs and PXs
have experienced ``multiple'' GX accidents/incidents. This five-year
timeframe is consistent with the five-year timeframe used by the
initial ten States when they prepared their Action Plans pursuant to
existing Sec. 234.11.
FRA received comments on this 5-year period in paragraph (e)(1)(ii)
from MNDOT, in which MNDOT noted the State of Minnesota has a very low
number of GXs that have experienced more than one accident or incident
in the previous five years. Therefore, MNDOT asked whether it would be
permissible for a State to look back over a longer period to improve
its analysis.
Thankfully, as MNDOT points out, some States have a very low number
of GXs which have experienced more than one accident/incident in the
previous
[[Page 80653]]
five years. FRA suggests that States with very low grade crossing
accident/incident numbers should consider defining what constitutes a
GX or PX with a ``high-risk for accidents or incidents'' in accordance
with paragraph (e)(1)(iii) and addressing those crossings in their
Action Plans. As proposed in the NPRM, paragraph (e)(1)(iii) allows a
State to define what constitutes grade crossings with a ``high-risk for
accidents or incidents'' and focus its Action Plan on those crossings.
By choosing this option, as opposed to trying to identify GXs and PXs
that have experienced previous accidents/incidents in accordance with
paragraph (e)(1)(i) or (ii), States with low grade crossing accident/
incident numbers can, within the constraints of paragraph (e)(1)(iii),
use a different set of criteria to identify GXs and PXs to address in
their Action Plans.
MNDOT also submitted comments on the proposed paragraph
(e)(1)(iii), noting that the State of Minnesota has done significant
work developing a risk ranking system for project selection. Therefore,
MNDOT expressed optimism that, given FRA's proposal in the proposed
rule to allow States the flexibility to define ``high risk'' GXs, MNDOT
may be able to use their existing risk ranking system to define ``high
risk'' GXs within the State of Minnesota and thereby reduce plan
development costs.
However, the American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO), the Association of American
Railroads (AAR), and an individual commenter submitted comments
expressing concern with the proposed language in paragraph (e)(1)(iii)
that would allow States to define what constitutes a ``high risk'' GX.
AFL-CIO asserted that the proposed language in paragraph (e)(1)(iii)
would allow States to limit their efforts to grade crossings where an
accident has already taken place, which it asserted would be
inconsistent with the spirit of the underlying statutory mandate.
Similarly, while noting that some level of risk standardization would
likely benefit the nation as a whole, Mr. Gregory James submitted
comments recommending that FRA disseminate minimum guidelines for
identifying potentially problematic grade crossings.
AAR expressed concern that if FRA does not define what constitutes
``high risk'' of an incident occurring at a GX, the result would be 51
different definitions of what constitutes ``high risk.'' Therefore, AAR
recommended that, at a minimum, FRA should include factors that States
should consider when designating a grade crossing as ``high risk.'' For
example, AAR recommended States consider factors such as profile
deficiencies, skew, inadequate sight distances due to fixed
obstructions, and the density of neighborhood development along the
corridor near a crossing.
After considering all the comments received and evaluating the
potential benefits and consequences of allowing States to define ``high
risk'' grade crossings for themselves, FRA determined that the comments
provided by AFL-CIO, Mr. James, and AAR have merit. Accordingly, in
this final rule, FRA has revised proposed paragraph (e)(1)(iii) of this
section to include a list of key factors that States are required to
consider in their Action Plans when identifying ``high-risk'' crossings
under paragraph (e)(1)(iii) of this section. These key factors in
paragraph (e)(1)(iii) include the average annual daily traffic, the
total number of trains per day that travel through the crossing, the
total number of motor vehicle collisions that have occurred at the
crossing during the previous 5-year period, the number of main railroad
tracks at the crossing, the number of roadway lanes at the crossing,
sight distance and roadway geometry at the crossing, and maximum
timetable speed at the crossing.
FRA notes that the key factors listed in paragraph (e)(1)(iii) are
minimum factors a State must consider if defining high-risk crossings
under paragraph (e)(1)(iii). Therefore, FRA encourages States to
consider any other factors that may be present at a particular crossing
that may increase the risk of an accident/incident. Examples of
potential additional factors a State may find useful to consider
include: The volume and nature of any hazardous materials transported
through the crossing, the frequency of any passenger trains traveling
through the crossing, and the proximity of a school or emergency
service provider, which could cause a high number of school buses or
emergency service vehicles to travel through the grade crossing. AFL-
CIO asserted in its comments that increased pedestrian volume may
increase opportunities for an accident, while AAR identified the
density of neighborhood development along the corridor near the
crossing as a factor that can contribute to high risk levels at a GX.
When evaluating these risk factors and the overall risk levels at
individual GXs and PXs under paragraph (e)(1)(iii), FRA recommends
States consider the definition of ``risk'' provided in 49 CFR 270.5 and
271.5, in which the term ``risk'' is defined as ``the combination of
the probability (or frequency of occurrence) and the consequence (or
severity) of a hazard.'' FRA also recommends that States describe the
process or formula used to assess risk at each crossing in their Action
Plans. However, to obtain information about all the factors considered
by States when identifying GXs and PXs in their Action Plans as ``high
risk,'' paragraph (e)(1)(iii) requires States that identify ``high
risk'' crossings under paragraph (e)(1)(iii) to include in their Action
Plans the complete list of factors considered in making this
determination.
As proposed in the NPRM, paragraph (e)(2) requires States to
identify the data sources used to categorize the GXs and PXs in their
Action Plans. To help States identify GXs and PXs that have experienced
recent accident/incidents, multiple accident/incidents, or are at high-
risk for accident/incidents, FRA will provide GX and PX accident/
incident data to States upon request. FRA will also assist State
agencies electing to use FRA's Office of Safety Analysis website to
generate customized reports of GX accident/incident data.
In the NPRM, paragraph (e)(3) would require States to discuss
specific strategies to improve safety at the identified crossings over
a period of at least five years. FRA received a number of comments on
this proposed minimum five-year time period, and for the reasons
discussed below, FRA is revising proposed paragraph (e)(3) to provide
for a minimum time period of four years.
The departments of transportation for Idaho, Montana, North Dakota,
South Dakota, and Wyoming submitted comments noting that Congress
established planning requirements in the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA), the Transportation
Equity Act for the 21st Century (TEA-21), and the Safe Accountable
Flexible Efficient Transportation Equity: A Legacy for Users Act
(SAFETEA-LU) directing the State Transportation Improvement Program
(STIP) to span four years. Accordingly, these State DOTs recommended
that FRA allow States to align the time frame covered by their Action
Plans with the four-year STIP time frame, but not require them to do
so. The Alaska DOT&PF, on the other hand, submitted comments supporting
the proposed five-year minimum time period. Alaska DOT&PF noted that
some States are not able to insert grade separations or rail
realignment projects into fiscally constrained STIPs.
After consideration of these comments, FRA has concluded that
[[Page 80654]]
providing the flexibility for State Action Plans to cover a minimum
four-year time period for consistency with other surface transportation
planning requirements is justified. Accordingly, FRA is revising
proposed paragraph (e)(3) to provide that State Action Plans must
discuss specific strategies to improve safety at the identified
crossings over a period of ``at least four years.'' FRA intends this
change to facilitate integration of the Action Plans required by this
final rule with existing State planning mechanisms and documents (e.g.,
STIPs, SHSPs, and State Rail Plans). However, nothing in this final
rule restricts States from including specific strategies to improve
crossing safety in their Action Plans for a period longer than four
years.
AAR also submitted comments on paragraph (e)(3), recommending FRA
clarify that, prior to making any changes to address blocked crossing
concerns that could impact train operations, States must consult with
the railroad primarily responsible for dispatching trains through the
crossing as indicated by the name of the railroad on the Emergency
Notification System (ENS) sign. FRA expects that States seeking to make
changes to address blocked crossing concerns will, at a minimum,
coordinate with the railroad primarily responsible for dispatching
trains through the highway-rail or pathway grade crossing prior to
making any changes that could impact train operations. Depending on the
type of change envisioned, the State should contact the railroad
primarily responsible for maintaining the highway-rail or pathway grade
crossing (if different from the railroad primarily responsible for
dispatching trains through the crossing) as well. However, a
requirement that States must consult with railroads prior to
implementing certain types of strategies in their Action Plans to
address blocked crossing concerns falls beyond the scope of this
rulemaking.
FRA also received comments on paragraph (e)(3) from Washington UTC
staff, SDDOT, as well as the departments of transportation for Idaho,
Montana, North Dakota, and Wyoming. In their comments, these State
agencies recommended that the final rule include language allowing
States to discuss the types of grade crossing improvement projects they
will address and emphasize, as opposed to requiring States to identify
specific projects to be undertaken. The departments of transportation
for Idaho, Montana, North Dakota, South Dakota, and Wyoming asserted
that this approach would allow States to set forth policy priorities in
their Action Plans. FRA agrees that States should not be required to
identify specific projects to be undertaken. Therefore, while FRA
encourages States to identify specific projects that they may wish to
highlight in their Action Plans, FRA would like to clarify that this
final rule does not require project identification.
Given Section 11401's mandate that FRA prepare and submit a report
to Congress within three years of issuing this final rule, FRA notes
that it intends to evaluate each Action Plan to assess whether it
provides sufficient information to inform Congress of specific
strategies that will be implemented (or continue to be implemented) by
individual States to improve GX safety. To this end, FRA agrees with
CRST's comments that FRA should anticipate its reporting obligations to
Congress, and during FRA's review of Action Plans, disapprove any plans
that are not objective, observable, and measurable.
FRA received comments from multiple State agencies, including
Washington UTC staff, SDDOT, and departments of transportation for
Idaho, Montana, North Dakota, and Wyoming, recommending that the final
rule include language providing for Action Plans to be considered
deficient only if they are inconsistent with statutory requirements, so
that modest deficiencies in regulatory planning or paperwork will not
prohibit safety investments. While de minimis deficiencies in paperwork
should not lead to an Action Plan being rejected, FRA disagrees with
the recommendation to consider Action Plans deficient only if they are
inconsistent with statutory requirements. Section 11401 specifically
mandates that FRA issue a rule requiring States to develop and
implement Action Plans that meet certain requirements. The regulatory
requirements in this final rule respond to that mandate and enable the
effective and consistent implementation of the statutory requirements
in Section 11401. For example, paragraph (e)(4) of this section
requires States to provide an implementation timeline for the
strategies identified in their Action Plans. Although not specifically
required by Section 11401, this requirement is designed to help ensure
States implement the strategies identified in their Action Plans
effectively.
As for the requirement in paragraph (e)(3) of this section, which
requires States discuss specific strategies for improving GX and PX
safety, CRST submitted comments recommending that FRA insist that
States incorporate the safety of pedestrians (at crossings and along
the railroad right-of-way) into their Action Plans. In support of this
recommendation, CRST asserted that over the long term, pedestrian
fatalities at grade crossings have not demonstrated a decreasing trend
like vehicle occupant fatalities at GXs. Similarly, with respect to
proposed crossing closure projects, CRST stated that care must be taken
to ensure that closure of the grade crossing will not result in
increased trespassing along the railroad right-of-way.
FRA agrees that States should incorporate the safety of pedestrians
at GXs and PXs into their Action Plans. For example, the FAST Act
requires States to consider crossing closures and grade separation
projects. Therefore, to avoid introducing new or increased risk, FRA
expects any State contemplating crossing-closure and/or grade-
separation projects will evaluate not only the potential reduction in
risk to motor vehicle occupants from the closure or separation project,
but also the potential impact on trespassing at the location of any
crossing slated for closure.
CRST also urged FRA to consider making additional changes in this
final rule to address suicides that occur at crossings and along
railroad rights-of-way. For example, CRST recommended that FRA insist
that State Action Plans include efforts to reduce suicides at grade
crossings, as well as along the railroad right-of-way, in areas in
which suicides appear to be a significant problem. If a State has
experienced a high number of suicides at one or more GXs or PXs, this
final rule provides the flexibility for that State to develop and
include in its Action Plan specific strategies to address the issue.
FRA encourages any State that has experienced a high number of suicides
at particular grade crossings to include specific strategies in its
Action Plan to address suicides at those crossings.
CRST asserted that FRA's decision not to include suicide data in
FRA's periodic summaries of rail-related injuries and illnesses
associated with railroad operations may dissuade States from addressing
suicides that occur at crossings and along the railroad right-of-way.
Therefore, CRST recommended that FRA amend 49 CFR 225.41 (Suicide data)
to allow (or require) FRA to report all deaths in FRA's summaries of
``total fatalities.'' In addition, a resident of Chicago, Illinois
urged FRA to develop a mechanism in the final rule that would require
railroads to release video obtained from their outward-facing
locomotive cameras to State coroners and law enforcement officials upon
[[Page 80655]]
request, to facilitate State efforts to determine accurately the cause
of death. Although FRA appreciates these comments and suggestions, both
are outside the scope of the statutory authority for this rulemaking.
FRA does, however, maintain several online resources that provide
access to FRA's railroad trespassing data, including certain data
related to suicides. One such resource, FRA's Trespass and Suicide
Dashboard, allows users to interact visually with trespass and suicide
data collected by FRA. Therefore, FRA encourages entities seeking to
view FRA data on fatalities that occur at GXs (as defined in 49 CFR
234.5), as well as fatalities that occur along railroad rights-of-way,
to visit our Trespass and Suicide Dashboard, which is accessible online
through FRA's website. In addition, FRA notes that it has an ongoing
rulemaking on Locomotive Image and Audio Recording Devices for
Passenger Trains to implement a Congressional mandate.\7\
---------------------------------------------------------------------------
\7\ 84 FR 35712 (July 24, 2019); 49 U.S.C. 20168.
---------------------------------------------------------------------------
In adopting paragraph (e)(4), FRA has corrected a typographical
error in the proposed rule. Paragraph (e)(4) requires States to provide
an implementation timeline for the specific strategies they develop to
improve safety at the GXs identified in their Action Plans. In the
proposed rule, FRA erroneously indicated that the proposed requirement
to discuss these specific strategies in the State Action Plans was
contained in paragraph (d)(2) of this section. To correct this error,
paragraph (e)(4) in the final rule requires States to provide an
implementation timeline for ``the strategies discussed in paragraph
(e)(3) of this section.''
As proposed in the NPRM, paragraph (e)(5) requires each State and
DC to designate an official responsible for managing implementation of
the Action Plan. As noted earlier, FRA will create a secure document
submission site that States can use to upload Action Plans. The
official designated under this paragraph will be given primary user
access to the secure document submission site, as well as the authority
to grant access to secondary users. Accordingly, the designated State
official will need to register with FRA to gain primary user access to
the secure document submission site.
Paragraph (f) of this section requires States and DC to provide
contact information for their designated officials, so they can be
invited to set up primary user accounts.
Paragraph (f)(2) also requires each State and DC to notify FRA if a
new official is subsequently designated to manage implementation of its
Action Plan and to provide contact information for the new designated
official. FRA has modified paragraph (f)(2) from that proposed in the
NPRM in response to comments submitted by the Alaska DOT&PF
recommending that FRA not adopt the proposed requirement for States to
maintain updated contact information. Alaska DOT&PF asserted that the
proposed requirement was too onerous, especially for a one-time plan
with no ongoing reporting requirement.
FRA agrees that an ongoing requirement to maintain current contact
information for State Action Plans for many years seems unnecessary,
given the absence of any requirement to update the plan. Therefore, FRA
has modified paragraph (f)(2) from that proposed in the NPRM to limit
the period of time States are required to maintain current contact
information for their Action Plans to a four-year period after
publication of this final rule. This requirement will help ensure FRA
has current contact information while States implement their Action
Plan strategies in accordance with their implementation timelines. This
requirement will also help ensure FRA has current contact information
available when FRA prepares the required report to Congress, while
limiting the burden on States.
Paragraph (g) of this section sets forth FRA's review and approval
process for Action Plans. As provided in paragraph (g)(1), FRA will
update its website to reflect receipt of each new, updated, or
corrected Action Plan. FRA encourages States to work with FRA staff as
they develop their Action Plans. FRA will also offer webinars to assist
States in developing and updating their Plans. As indicated in comments
submitted by CRST, FRA's ability to provide technical assistance to
States will help ensure States develop Action Plans that can be
effectively evaluated and implemented.
To avoid delaying implementation of needed grade crossing safety
improvements, paragraph (g)(2)(i) states that FRA will conduct a
preliminary review of each new, updated, and corrected Action Plan
within sixty (60) days of receipt. During this 60-day review period,
FRA will determine whether a submitted plan has adequately addressed
the elements prescribed in paragraph (e) of this section.
FRA acknowledges comments received on ways to improve the proposed
review process for Action Plans. Washington UTC staff, and the
departments of transportation for Idaho, Montana, North Dakota, South
Dakota, and Wyoming recommended that FRA establish a staggered timeline
for States to submit their Action Plans, in which States with the
highest number of grade crossing accidents would be required to submit
their plans first. Similarly, VTrans submitted comments recommending
that the final rule allow States to submit their Action Plans at the
same time that they submit their SHSPs (which are generally submitted
in staggered, 5-year cycles).
FRA does not have the flexibility to allow for a staggered timeline
or cycle for submitting Action Plans to FRA for review and approval
because Section 11401 requires FRA to report to Congress information
about the Action Plans and their implementation within three years.
However, as noted above, FRA will offer webinars and work closely with
any State that desires the Agency's assistance in developing its Action
Plan. This involvement from FRA should help ensure the efficiency of
the plan review process.
FRA anticipates that States with a high number of grade crossing
accident/incidents will submit Action Plans that are more detailed than
those of States with a low number of grade crossing accident/incidents.
In this regard, FRA agrees with comments submitted by CRST and all
Action Plans submitted under this regulation will be carefully
reviewed. DelDOT commented that FRA's proposed review process would
create confusion among State officials who may not feel confident
implementing their Action Plans until more than 120 days have passed
from the date of FRA's receipt of their plans. Alaska DOT&PF
recommended that FRA include FHWA in the review and approval process
for Action Plans, given the potential need for Federal aid highway
funding to implement the strategies identified by States in their
Action Plans.
Accordingly, in adopting paragraph (g)(2)(ii), FRA is clarifying
that Action Plans will be considered conditionally approved sixty (60)
days after receipt by FRA unless FRA notifies the State's designated
point of contact that the Action Plan is incomplete or deficient.
Therefore, if a State has not been notified that its Action Plan is
incomplete or deficient, a State may proceed with implementation of its
Action Plan after 60 days have elapsed from the date of FRA's receipt
of its plan. In addition, States may verify the review status of their
Action Plans by checking FRA's website or contacting FRA.
Paragraph (g)(2)(iii) states that FRA reserves the right to conduct
a more comprehensive review of each ``new, updated, or corrected''
Action Plan,
[[Page 80656]]
which may take up to 120 days to complete. In addition, FRA will
continue to consult and coordinate with FHWA during FRA's review of
Action Plans.
Paragraph (g)(3) specifically addresses Action Plans that FRA
determines to be incomplete or deficient. As reflected in paragraph
(g)(3)(i), if FRA finds a submitted Action Plan is incomplete or
deficient, it will notify the appropriate designated official via email
of the specific areas in which the plan is deficient or incomplete.
Paragraph (g)(3)(ii) requires States and DC to complete, correct,
and resubmit within 60 days any Action Plan that FRA deems incomplete
or deficient. This 60-day timeframe is derived from Section
11401(b)(7), which directs States to complete their Action Plans and
correct deficiencies identified within 60 days of the date of FRA
notification.
FRA received a number of comments from State agencies on the 60-day
correction period contained in paragraph (g)(3)(ii), including comments
from SDDOT, Washington UTC staff, and the departments of transportation
for Idaho, Montana, North Dakota, and Wyoming, recommending that FRA
include a provision in the final rule to allow States to request an
extension of time to correct any deficiencies identified during FRA's
review of their Action Plans, if additional time is needed to rectify
them. Similarly, Alaska DOT&PF submitted comments recommending that the
final rule allow at least 120 days for States to correct any
deficiencies identified during FRA's review of their Action Plans.
FRA has not, however, established a separate process in this final
rule that would allow a State to request additional time to correct
deficiencies identified during FRA's review of its Action Plan. While
FRA is sympathetic to the concerns expressed by these State agencies,
Section 11401(b) directs States to correct deficiencies identified and
resubmit their Action Plans within 60 days from the date on which FRA
notifies them of the deficiencies. In addition, this 60-day correction
period is twice as long as the 30-day period within which the initial
ten States were required to correct any deficiencies identified in
their Action Plans. Therefore, FRA has not expanded the 60-day
correction period mandated by Section 11401(b). Nonetheless, as
previously discussed, FRA intends to provide webinars and technical
assistance to State agencies during the 14-month period between the
publication date of this final rule and the submission deadline for
State Action Plans to help ensure efficiency in their development and
review.
As provided in paragraph (g)(4)(i), after FRA has completed its
review and approves a new, updated, or corrected Action Plan, FRA will
notify the State's designated official described in paragraph (e)(5) by
email that the Action Plan has been fully approved.
Paragraph (g)(4)(ii) states that FRA will make each fully-approved
Action Plan publicly available for online viewing. This provision is
intended to comply with Section 11401(b)(4)'s requirement that the FRA
Administrator make each approved Action Plan publicly available on ``an
official internet website.'' In addition, to avoid confusion, FHWA will
remove the original Action Plans submitted by the initial ten States
from its website.
As provided in paragraph (g)(4)(iii), each State and DC are
required to implement their Action Plans.
Paragraph (h) of this section provides that the Secretary may
condition the awarding of a rail improvement grant to a State or DC on
the submission of an FRA-approved Action Plan under this section. This
language reflects the authority specifically granted to the Secretary
in Section 11401(b)(5).
FRA received comments on the language in this paragraph from
multiple State agencies. Washington UTC staff, SDDOT, and the
departments of transportation for Idaho, Montana, North Dakota, and
Wyoming submitted joint comments expressing concern that conditioning
the awarding of highway-rail crossing funding or grants on having an
approved plan is a risky approach that may impede important safety
improvements that can save lives and reduce collisions. The departments
of transportation for Idaho, Montana, North Dakota, South Dakota, and
Wyoming also noted that State highway-rail crossing project selection
should not be restricted solely by a State's FRA-approved Action Plan
because safety, feasibility, engineering judgment, and other factors
must also be considered.
FRA agrees that a State's selection of highway-rail crossing
improvement projects should not be exclusively limited to the highway-
rail crossing improvement projects that are specifically identified in
the State's FRA-approved Action Plan. However, FRA believes a properly
prepared Action Plan identifying GXs and PXs where recent accidents
have occurred, or that a State characterizes as ``high-risk,'' can
inform project selection. During FRA's review of applications for grant
funding, FRA often looks for evidence of advance planning and
identification of crossing safety needs through data-based risk
analysis. Therefore, by discussing specific projects in their Action
Plans, as well as the data sources used to identify safety needs that
will be addressed by these projects, States can use their Action Plans
as a vehicle for providing evidence of advance planning and data-based
crossing risk analysis.
Section 234.301 Definitions
As noted in the discussion of Sec. 234.5 above, in this final
rule, FRA is removing the definition of ``pathway grade crossing'' from
the list of definitions in Sec. 234.301 (which applies only to FRA's
Emergency Notification System regulations in subpart C to 49 CFR part
234). As previously discussed, by removing the definition of ``pathway
grade crossing'' from Sec. 234.301 and moving it to Sec. 234.5, the
definition of ``pathway grade crossing'' will now apply to all of FRA's
grade crossing regulations in 49 CFR part 234.
IV. Regulatory Impact and Notices
A. Executive Order 12866, Congressional Review Act, and DOT Regulatory
Policies and Procedures
This final rule is not a significant regulatory action within the
meaning of Executive Order 12866, ``Regulatory Planning and Review,''
and DOT's Administrative Rulemaking, Guidance, and Enforcement
Procedures in 49 CFR part 5. Pursuant to the Congressional Review
Act,\8\ the Office of Information and Regulatory Affairs designated
this rule as not a ``major rule,'' as defined by 5 U.S.C. 804(2).
Details on the estimated cost of this rule can be found in the
Regulatory Evaluation, which FRA has prepared and placed in the docket
(docket number FRA-2018-0096).
---------------------------------------------------------------------------
\8\ 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------
The purpose of the final rule is to reduce accident/incidents at
GXs and PXs nationwide. The final rule requires each State and DC to
submit or re-submit to FRA an Action Plan. The final rule also requires
each of the 10 States that previously created an FRA-approved Action
Plan to submit a report to FRA that describes how the State implemented
its existing Plan and how the State will continue to reduce GX and PX
safety risks.
Costs
The final rule specifically lists the required elements for Plans.
To minimize the compliance costs, the final rule affords each State the
flexibility to develop or update an Action Plan based upon the
individual State's hazard assessment.
[[Page 80657]]
Section 11401(a) required FRA to develop and distribute a model
State Action Plan. In conjunction with FHWA, FRA developed a ``Highway-
Railway Grade Crossing Action Plan and Project Prioritization
Noteworthy Practices Guide.'' FRA shared this guide with States via
letters that included the data requirements as discussed in Section
11401. The guide is currently available on DOT's website. In addition,
previous Action Plans from the 2010 final rule have also been made
available to the public on DOT's website. After issuing this final
rule, FRA will provide States with assistance in developing their
Action Plans.
Table 1 shows the costs associated with the final rule. The largest
costs for the 10 States that have already developed an FRA-approved
Action Plan are: Updating and submitting an Action Plan to FRA;
submitting a report to FRA that describes how the previously approved
Action Plan was implemented; and resubmitting (if necessary) an Action
Plan if FRA determines the State's updated Action Plan submission to be
incomplete. Collectively, the largest costs for the other 40 States and
DC are: Developing and submitting an Action Plan to FRA; and
resubmitting (if necessary) an Action Plan if FRA determines the
State's previous Action Plan submission to be incomplete.
As shown in Table 1, the final rule will result in a total cost of
$1.0 million (PV, 7%), and $1.1 million (PV, 3%).
---------------------------------------------------------------------------
\9\ Numbers rounded to the nearest 1,000.
Table 1--Cost Summary, Discounted at 7% and 3%
[2017 dollars] \9\
--------------------------------------------------------------------------------------------------------------------------------------------------------
States updating existing plan States creating new plan All states
Costs -----------------------------------------------------------------------------------------------
7% 3% 7% 3% 7% 3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Develop or Update Action plan........................... $350,000 $364,000 $580,000 $602,000 $930,000 $966,000
Submitting Report to FRA................................ 57,000 59,000 .............. .............. 57,000 59,000
Resubmit Action Plan.................................... 17,000 18,000 24,000 25,000 41,000 43,000
Government Admin. Costs................................. .............. .............. .............. .............. 20,000 21,000
-----------------------------------------------------------------------------------------------
Total Cost.......................................... 424,000 441,000 604,000 627,000 1,048,000 1,089,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRA assumes that all costs will be incurred in the first year of
analysis. The costs that are derived from the analysis do not include
the costs of voluntary changes in investments or operations that States
will make when implementing their Action Plans.
Benefits
This analysis discusses the non-quantifiable benefits associated
with this final rule. FRA expects that States developing and
implementing Action Plans may improve the way they allocate resources
for GX and PX mitigation efforts. The final rule's primary benefit will
come from a reduction in the number of GX and PX accident/incidents and
the associated decrease in fatalities, injuries, and property damage,
as well as diminished environmental impacts. Last, FRA anticipates that
Action Plans may also reduce accident severity, as some States may
develop and implement Action Plans that focus efforts on mitigating
accident/incidents that are more likely to result in fatalities.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 \10\ (RFA) and Executive
Order 13272 \11\ require agency review of proposed and final rules to
assess their impacts on small entities. When an agency issues a
rulemaking proposal, the RFA requires the agency to ``prepare and make
available for public comment an initial regulatory flexibility
analysis'' that will ``describe the impact of the proposed rule on
small entities.'' \12\ Section 605 of the RFA allows an agency to
certify a rule, in lieu of preparing an analysis, if the proposed
rulemaking is not expected to have a significant economic impact on a
substantial number of small entities.
---------------------------------------------------------------------------
\10\ 5 U.S.C. 601 et seq.
\11\ 67 FR 53461, Aug. 16, 2002.
\12\ 5 U.S.C. 603(a).
---------------------------------------------------------------------------
In the proposed rule, FRA identified 51 entities (the 50 States and
DC) that will be affected by the rule. Each of the 50 States and DC
have a population greater than 50,000. Therefore, FRA certified that
the rule would not have a significant economic impact on a substantial
number of small entities. FRA received no comments regarding the
certification.
The Administrator of FRA hereby certifies that this final rule will
not have a significant economic impact on a substantial number of small
entities.
C. Federalism
Executive Order 13132, ``Federalism,'' \13\ requires FRA to develop
an accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' are defined in the Executive order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' Under Executive Order 13132, the Agency may not issue
a regulation with federalism implications that imposes substantial
direct compliance costs and that is not required by statute, unless the
Federal Government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments or the Agency
consults with State and local governments early in the process of
developing the regulation. Where a regulation has federalism
implications and preempts State law, the Agency seeks to consult with
State and local officials in the process of developing the regulation.
---------------------------------------------------------------------------
\13\ 64 FR 43255, Aug. 10, 1999.
---------------------------------------------------------------------------
FRA has analyzed this final rule in accordance with the principles
and criteria contained in Executive Order 13132. FRA has determined
that the final rule will not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. In addition, FRA has determined that this
final rule, which complies with a statutory mandate, will not have
federalism implications that impose substantial direct compliance costs
on State and local governments. Therefore, the consultation and funding
requirements
[[Page 80658]]
of Executive Order 13132 do not apply, and preparation of a federalism
summary impact statement for this final rule is not required.
D. Paperwork Reduction Act
The information collection requirements in this rule are being
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995.\14\ The sections that
contain the information collection requirements and the estimated time
to fulfill each requirement are as follows:
---------------------------------------------------------------------------
\14\ 44 U.S.C. 3501 et seq.
\15\ The proposed burdens for Sec. Sec. 234.11(d), (e), and
(f)(1) are covered under Sec. Sec. 234.11(b) and (c)(1) and (2).
\16\ Based on input from FRA subject matter experts and feedback
from States, the 40 States and DC that currently do not have an FRA-
approved Action Plan are grouped into four burden levels: High,
medium, and low, and minimal burden. For the 10 States, they are
grouped into three burden levels: High, medium, and low.
\17\ An hourly compensation rate of $61.20 was used to calculate
the total cost equivalent.
----------------------------------------------------------------------------------------------------------------
Average time Total cost
CFR section \15\ Respondent Total annual per responses Total annual equivalent
universe responses \16\ burden hours \17\
----------------------------------------------------------------------------------------------------------------
234.11(b)--State Action 40 States + DC. 1.3 plans + 2.3 700 hours + 550 3,377 $206,672
Plans--Development and plans + 4 hours + 200
submission of new Action plans + 6 hours + 60
Plans (40 States + DC). plans. hours.
--(c)(1) Updated Action 10 States...... 1 plan + 1 plan 1,100 hours + 2,040 124,848
Plans (10 listed States + 1.3 plans. 640 hours +
in Sec. 234.11(e)). 225 hours.
--(c)(2) Implementation 10 States...... 1 report + 1 160 hours + 120 333 20,380
reports (10 listed report + 1.3 hours +.
States in Sec. reports. 40 hours.......
234.11(e)).
--(f)(2) Notification to 50 States + DC. 2.7 5 minutes...... .3 20
FRA by State or DC of notifications.
another official to
assume responsibilities
described under Sec.
234.11(e)(6).
--(g) FRA review and 40 States + DC. .7 plans + .7 105 hours + 60 142 8,690
approval of State Action plans + 1.3 hours + 24
Plans: Disapproved plans plans. hours.
needing revision (40
States + DC).
--(g) FRA review and 10 States...... .3 plans + .3 165 hours + 96 98 6,016
approval of State Action plans + .3 hours + 34
Plans: Disapproved plans plans. hours.
needing revision (10
listed states in Sec.
234.11(e)).
----------------------------------------------------------------------------------
Total................ N/A............ 27 plans, N/A............ 5,991 366,627
reports, and
notifications.
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Ms. Hodan Wells,
Information Collection Clearance Officer, at 202-493-0440.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them via email to
Ms. Wells at [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. FRA is not authorized to
impose a penalty on persons for violating information collection
requirements that do not display a current OMB control number, if
required. The current OMB control number for 49 CFR 234.11 is 2130-
0589.
E. Environmental Impact
FRA has evaluated this final rule consistent with the National
Environmental Policy Act (NEPA),\18\ the Council of Environmental
Quality's NEPA implementing regulations,\19\ and FRA's NEPA
implementing regulations \20\ and determined that it is categorically
excluded from environmental review and therefore does not require the
preparation of an environmental assessment (EA) or environmental impact
statement (EIS). Categorical exclusions (CEs) are actions identified in
an agency's NEPA implementing regulations that do not normally have a
significant impact on the environment and therefore do not require
either an EA or EIS.\21\ Specifically, FRA has determined that this
final rule is categorically excluded from detailed environmental review
pursuant to 23 CFR 771.116(c)(15), ``[p]romulgation of rules, the
issuance of policy statements, the waiver or modification of existing
regulatory requirements, or discretionary approvals that do not result
in significantly increased emissions of air or water pollutants or
noise.''
---------------------------------------------------------------------------
\18\ 42 U.S.C. 4321 et seq.
\19\ 40 CFR parts 1500 through 1508.
\20\ 23 CFR part 771.
\21\ 40 CFR 1508.4.
---------------------------------------------------------------------------
The purpose of this rulemaking is to revise FRA's State Action Plan
requirements as mandated by the FAST Act. This rule does not directly
or indirectly impact any environmental resources and will not result in
significantly increased emissions of air or water pollutants or noise.
Instead, the final rule is likely to result in safety benefits. In
analyzing the applicability of a CE, FRA must also consider whether
unusual circumstances are present that would warrant a more detailed
environmental review.\22\ FRA has concluded that no such unusual
circumstances exist with respect to this final regulation and it meets
the requirements for categorical exclusion under 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------
\22\ 23 CFR 771.116(b).
---------------------------------------------------------------------------
Pursuant to Section 106 of the National Historic Preservation Act
and its implementing regulations, FRA has determined this undertaking
has no potential to affect historic properties.\23\ FRA has also
determined that this rulemaking does not approve a project resulting in
a use of a resource protected by Section 4(f).\24\
---------------------------------------------------------------------------
\23\ 16 U.S.C. 470.
\24\ Department of Transportation Act of 1966, as amended (Pub.
L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------
F. Executive Order 12898 (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) \25\ require DOT agencies to achieve environmental
justice as part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects, including interrelated social and
[[Page 80659]]
economic effects, of their programs, policies, and activities on
minority populations and low-income populations.
The DOT Order instructs DOT agencies to address compliance with
Executive Order 12898 and requirements within the DOT Order in
rulemaking activities, as appropriate. FRA has evaluated this final
rule under Executive Order 12898 and the DOT Order and has determined
it would not cause disproportionately high and adverse human health and
environmental effects on minority populations or low-income
populations.
---------------------------------------------------------------------------
\25\ 91 FR 27534 (May 10, 2012).
---------------------------------------------------------------------------
G. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of
1995,\26\ each Federal agency shall, unless otherwise prohibited by
law, assess the effects of Federal regulatory actions on State, local,
and tribal governments, and the private sector (other than to the
extent such regulations incorporate requirements specifically set forth
in law.) Section 202 of the Act \27\ further requires that before
promulgating any general notice of proposed rulemaking that is likely
to result in the promulgation of any rule that includes any Federal
mandate that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of
$100,000,000 or more (adjusted annually for inflation) in any one year,
and before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement detailing the effect on State, local, and tribal governments
and the private sector. This final rule will not result in the
expenditure, in the aggregate, of $100,000,000 or more in any one year
and thus preparation of such a statement is not required.
---------------------------------------------------------------------------
\26\ Public Law 104-4, 2 U.S.C. 1531 et seq.
\27\ 2 U.S.C. 1532.
---------------------------------------------------------------------------
H. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' \28\
FRA evaluated this final rule in accordance with Executive Order 13211
and determined that this regulatory action is not a ``significant
energy action'' within the meaning of the Executive order.
---------------------------------------------------------------------------
\28\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------
Executive Order 13783, ``Promoting Energy Independence and Economic
Growth,'' requires Federal agencies to review regulations to determine
whether they potentially burden the development or use of domestically
produced energy resources, with particular attention to oil, natural
gas, coal, and nuclear energy resources.\29\ FRA determined this final
rule will not burden the development or use of domestically produced
energy resources.
---------------------------------------------------------------------------
\29\ 82 FR 16093 (Mar. 31, 2017).
---------------------------------------------------------------------------
List of Subjects in 49 CFR Part 234
Highway safety, Penalties, Railroad safety, Reporting and
recordkeeping requirements, State and local governments.
The Final Rule
For the reasons discussed in the preamble, FRA is amending part 234
of chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:
PART 234--GRADE CROSSING SAFETY
0
1. The authority citation for part 234 is revised to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20152, 20160, 21301, 21304,
21311; Sec. 11401, Div. A, Pub. L. 114-94, 129 Stat. 1679 (49 U.S.C.
22501 note); and 49 CFR 1.89.
0
2. In Sec. 234.1, revise and republish paragraph (a) to read as
follows:
Sec. 234.1 Scope.
(a) This part prescribes minimum--
(1) Maintenance, inspection, and testing standards for highway-rail
grade crossing warning systems;
(2) Standards for the reporting of failures of highway-rail grade
crossing warning systems and for the actions that railroads must take
when such systems malfunction;
(3) Requirements for certain identified States to update their
existing State highway-rail grade crossing action plans and submit
reports about the implementation of their existing plans and for the
remaining States and the District of Columbia to develop State highway-
rail grade crossing action plans;
(4) Requirements that certain railroads establish systems for
receiving toll-free telephone calls reporting various unsafe conditions
at highway-rail grade crossings and pathway grade crossings, and for
taking certain actions in response to those calls; and
(5) Requirements for reporting to, and periodically updating
information contained in, the U.S. DOT National Highway-Rail Crossing
Inventory for highway-rail and pathway crossings.
* * * * *
0
3. Revise Sec. 234.5 by adding in alphabetical order definitions of
``Accident/incident,'' ``Pathway grade crossing,'' and ``State highway-
rail grade crossing action plan or Action Plan'' to read as follows:
Sec. 234.5 Definitions.
As used in this part:
Accident/incident means any impact between railroad on-track
equipment and a highway user at a highway-rail grade crossing or
pathway grade crossing. The term ``highway user'' includes automobiles,
buses, trucks, motorcycles, bicycles, farm vehicles, pedestrians, and
all other modes of surface transportation motorized and un-motorized.
* * * * *
Pathway grade crossing means a pathway that crosses one or more
railroad tracks at grade and that is--
(1) Explicitly authorized by a public authority or a railroad;
(2) Dedicated for the use of non-vehicular traffic, including
pedestrians, bicyclists, and others; and
(3) Not associated with a public highway, road, or street, or a
private roadway.
* * * * *
State highway-rail grade crossing action plan or Action Plan means
a document submitted to FRA for review and approval by a State of the
United States (or the District of Columbia), which contains the
elements required by Sec. 234.11(e) to address safety at highway-rail
and pathway grade crossings.
* * * * *
0
4. Revise Sec. 234.11 to read as follows:
Sec. 234.11 State highway-rail grade crossing action plans.
(a) Purpose. The purpose of this section is to reduce accident/
incidents at highway-rail and pathway grade crossings nationwide by
requiring States and the District of Columbia to develop or update
highway-rail grade crossing action plans and implement them. This
section does not restrict any other entity from adopting a highway-rail
grade crossing action plan. This section also does not restrict any
State or the District of Columbia from adopting a highway-rail grade
crossing action plan with additional or more stringent requirements not
inconsistent with this section.
(b) New Action Plans. (1) Except for the 10 States identified in
paragraph (c)(3) of this section, each State and the District of
Columbia shall develop a State highway-rail grade crossing action plan
that addresses each of the required
[[Page 80660]]
elements listed in paragraph (e) of this section and submit such plan
to FRA for review and approval not later than February 14, 2022.
(2) Each State and the District of Columbia shall submit its
highway-rail grade crossing action plan electronically through FRA's
website in Portable Document Format (PDF).
(c) Updated Action Plan and implementation report. (1) Each of the
10 States listed in paragraph (c)(3) of this section shall develop and
submit to FRA for review and approval an updated State highway-rail
grade crossing action plan that addresses each of the required elements
listed in paragraph (e) of this section, not later than February 14,
2022.
(2) Each of the 10 States listed in paragraph (c)(3) of this
section shall also develop and submit to FRA, not later than February
14, 2022, a report describing:
(i) How the State implemented the State highway-rail grade crossing
action plan that it previously submitted to FRA for review and
approval; and
(ii) How the State will continue to reduce highway-rail and pathway
grade crossing safety risks.
(3) The requirements of this paragraph (c) apply to the following
States: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa,
Louisiana, Ohio, and Texas.
(d) Electronic submission of updated Action Plan and implementation
report. Each of the 10 States listed in paragraph (d)(2) of this
section shall submit its updated highway-rail grade crossing action
plan and implementation report electronically through FRA's website in
PDF form.
(e) Required elements for State highway-rail grade crossing action
plans. Each State highway-rail grade crossing action plan described in
paragraphs (b) and (c) of this section shall:
(1) Identify highway-rail and pathway grade crossings that:
(i) Have experienced at least one accident/incident within the
previous 3 years;
(ii) Have experienced more than one accident/incident within the
previous 5 years; or
(iii) Are at high-risk for accidents/incidents as defined in the
Action Plan. Each State or the District of Columbia that identifies
highway-rail and pathway grade crossings that are at high-risk for
accidents/incidents in its Action Plan shall provide a list of the
factors that were considered when making this determination. At a
minimum, these factors shall include:
(A) Average annual daily traffic;
(B) Total number of trains per day that travel through each
crossing;
(C) Total number of motor vehicle collisions at each crossing
during the previous 5-year period;
(D) Number of main tracks at each crossing;
(E) Number of roadway lanes at each crossing;
(F) Sight distance (stopping, corner and clearing) at each
crossing;
(G) Roadway geometry (vertical and horizontal) at each crossing;
and
(H) Maximum timetable speed;
(2) Identify data sources used to categorize the highway-rail and
pathway grade crossings in paragraph (e)(1) of this section;
(3) Discuss specific strategies, including highway-rail grade
crossing closures or grade separations, to improve safety at those
crossings over a period of at least four years;
(4) Provide an implementation timeline for the strategies discussed
in paragraph (e)(3) of this section; and
(5) Designate an official responsible for managing implementation
of the State highway-rail grade crossing action plan.
(f) Point of contact for State highway-rail grade crossing action
plans. (1) When the State or the District of Columbia submits its
highway-rail grade crossing action plan or updated Action Plan and
implementation report electronically through FRA's website, the
following information shall be provided to FRA for the designated
official described in paragraph (e)(5) of this section:
(i) The name and title of the designated official;
(ii) The business mailing address for the designated official;
(iii) The email address for the designated official; and
(iv) The daytime business telephone number for the designated
official.
(2) If the State or the District of Columbia designates another
official to assume the responsibilities described in paragraph (e)(5)
of this section before December 16, 2024, the State or the District of
Columbia shall contact FRA and provide the information listed in
paragraph (f)(1) of this section for the new designated official.
(g) Review and approval. (1) FRA will update its website to reflect
receipt of each new, updated, or corrected highway-rail grade crossing
action plan submitted pursuant to this section.
(2)(i) Within 60 days of receipt of each new, updated, or corrected
highway-rail grade crossing action plan, FRA will conduct a preliminary
review of the Action Plan to ascertain whether the elements prescribed
in paragraph (e) of this section are adequately addressed in the plan.
(ii) Each new, updated, or corrected State highway-rail grade
crossing action plan shall be considered conditionally approved for
purposes of this section sixty (60) days after receipt by FRA unless
FRA notifies the designated official described in paragraph (e)(5) of
this section that the highway-rail grade crossing action plan is
incomplete or deficient.
(iii) FRA reserves the right to conduct a more comprehensive review
of each new, updated, or corrected State highway-rail grade crossing
action plan within 120 days of receipt.
(3) If FRA determines that the new, updated, or corrected highway-
rail grade crossing action plan is incomplete or deficient:
(i) FRA will provide email notification to the designated official
described in paragraph (e)(5) of this section of the specific areas in
which the Action Plan is deficient or incomplete and allow the State or
the District of Columbia to complete the plan and correct the
deficiencies identified.
(ii) Within 60 days of the date of FRA's email notification
identifying the specific areas in which the highway-rail grade crossing
action plan is incomplete or deficient, the State or District of
Columbia shall correct all deficiencies and submit the corrected State
highway-rail grade crossing action plan to FRA for approval. The
corrected highway-rail grade crossing action plan shall be submitted
electronically through FRA's website in PDF format.
(4)(i) When a new, updated, or corrected State highway-rail grade
crossing action plan is fully approved, FRA will provide email
notification to the designated official described in paragraph (e)(5)
of this section.
(ii) FRA will make each fully-approved State highway-rail grade
crossing action plan publicly available for online viewing.
(iii) Each State and the District of Columbia shall implement its
fully-approved highway-rail grade crossing action plan.
(h) Condition for grants. The Secretary of Transportation may
condition the awarding of any grants under 49 U.S.C. ch. 244 on the
State's or District of Columbia's submission of an FRA-approved State
highway-rail grade crossing action plan under this section.
Sec. 234.301 [Amended]
0
5. Amend Sec. 234.301 by removing the definition of ``Pathway grade
crossing.''
[[Page 80661]]
Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator, Federal Railroad Administration.
[FR Doc. 2020-26064 Filed 12-11-20; 8:45 am]
BILLING CODE 4910-06-P
