State Highway-Rail Grade Crossing Action Plans |
|---|
|
Quintin C. Kendall
Federal Railroad Administration
14 December 2020
[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 http://www.regulations.gov and
follow the online instructions for accessing the docket.
FOR FURTHER INFORMATION CONTACT: James Payne, Staff Director, Highway-
Rail Crossing and Trespasser Programs Division (telephone: 202-493-
6005); Debra Chappell, Transportation Specialist (telephone: 202-493-
6018); or Kathryn Gresham, Attorney Adviser, Office of the Chief
Counsel (telephone: 202-493-6063).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Funding
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Order 12866, Congressional Review Act, and DOT
Regulatory Policies and Procedures
B. Regulatory Flexibility Determination
C. Federalism
D. Paperwork Reduction Act
E. Environmental Impact
F. Executive Order 12898 (Environmental Justice)
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Executive Summary
This final rule revises FRA's regulation (49 CFR 234.11) on State
highway-rail grade crossing action plans (Action Plans) to require 40
States and the District of Columbia (DC) to develop and implement FRA-
approved Action Plans. The final rule also requires ten States that
were previously required to develop Action Plans by the Rail Safety
Improvement Act of 2008 \1\ (RSIA) and FRA's implementing regulation at
49 CFR 234.11 to update their plans and submit reports describing the
actions they have taken to implement their plans.
---------------------------------------------------------------------------
\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 Hodan.Wells@dot.gov.
OMB is required to make a decision concerning the collection of
information requirements contained in this rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. FRA is not authorized to
impose a penalty on persons for violating information collection
requirements that do not display a current OMB control number, if
required. The current OMB control number for 49 CFR 234.11 is 2130-
0589.
E. Environmental Impact
FRA has evaluated this final rule consistent with the National
Environmental Policy Act (NEPA),\18\ the Council of Environmental
Quality's NEPA implementing regulations,\19\ and FRA's NEPA
implementing regulations \20\ and determined that it is categorically
excluded from environmental review and therefore does not require the
preparation of an environmental assessment (EA) or environmental impact
statement (EIS). Categorical exclusions (CEs) are actions identified in
an agency's NEPA implementing regulations that do not normally have a
significant impact on the environment and therefore do not require
either an EA or EIS.\21\ Specifically, FRA has determined that this
final rule is categorically excluded from detailed environmental review
pursuant to 23 CFR 771.116(c)(15), ``[p]romulgation of rules, the
issuance of policy statements, the waiver or modification of existing
regulatory requirements, or discretionary approvals that do not result
in significantly increased emissions of air or water pollutants or
noise.''
---------------------------------------------------------------------------
\18\ 42 U.S.C. 4321 et seq.
\19\ 40 CFR parts 1500 through 1508.
\20\ 23 CFR part 771.
\21\ 40 CFR 1508.4.
---------------------------------------------------------------------------
The purpose of this rulemaking is to revise FRA's State Action Plan
requirements as mandated by the FAST Act. This rule does not directly
or indirectly impact any environmental resources and will not result in
significantly increased emissions of air or water pollutants or noise.
Instead, the final rule is likely to result in safety benefits. In
analyzing the applicability of a CE, FRA must also consider whether
unusual circumstances are present that would warrant a more detailed
environmental review.\22\ FRA has concluded that no such unusual
circumstances exist with respect to this final regulation and it meets
the requirements for categorical exclusion under 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------
\22\ 23 CFR 771.116(b).
---------------------------------------------------------------------------
Pursuant to Section 106 of the National Historic Preservation Act
and its implementing regulations, FRA has determined this undertaking
has no potential to affect historic properties.\23\ FRA has also
determined that this rulemaking does not approve a project resulting in
a use of a resource protected by Section 4(f).\24\
---------------------------------------------------------------------------
\23\ 16 U.S.C. 470.
\24\ Department of Transportation Act of 1966, as amended (Pub.
L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------
F. Executive Order 12898 (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) \25\ require DOT agencies to achieve environmental
justice as part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects, including interrelated social and
[[Page 80659]]
economic effects, of their programs, policies, and activities on
minority populations and low-income populations.
The DOT Order instructs DOT agencies to address compliance with
Executive Order 12898 and requirements within the DOT Order in
rulemaking activities, as appropriate. FRA has evaluated this final
rule under Executive Order 12898 and the DOT Order and has determined
it would not cause disproportionately high and adverse human health and
environmental effects on minority populations or low-income
populations.
---------------------------------------------------------------------------
\25\ 91 FR 27534 (May 10, 2012).
---------------------------------------------------------------------------
G. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of
1995,\26\ each Federal agency shall, unless otherwise prohibited by
law, assess the effects of Federal regulatory actions on State, local,
and tribal governments, and the private sector (other than to the
extent such regulations incorporate requirements specifically set forth
in law.) Section 202 of the Act \27\ further requires that before
promulgating any general notice of proposed rulemaking that is likely
to result in the promulgation of any rule that includes any Federal
mandate that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of
$100,000,000 or more (adjusted annually for inflation) in any one year,
and before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement detailing the effect on State, local, and tribal governments
and the private sector. This final rule will not result in the
expenditure, in the aggregate, of $100,000,000 or more in any one year
and thus preparation of such a statement is not required.
---------------------------------------------------------------------------
\26\ Public Law 104-4, 2 U.S.C. 1531 et seq.
\27\ 2 U.S.C. 1532.
---------------------------------------------------------------------------
H. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' \28\
FRA evaluated this final rule in accordance with Executive Order 13211
and determined that this regulatory action is not a ``significant
energy action'' within the meaning of the Executive order.
---------------------------------------------------------------------------
\28\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------
Executive Order 13783, ``Promoting Energy Independence and Economic
Growth,'' requires Federal agencies to review regulations to determine
whether they potentially burden the development or use of domestically
produced energy resources, with particular attention to oil, natural
gas, coal, and nuclear energy resources.\29\ FRA determined this final
rule will not burden the development or use of domestically produced
energy resources.
---------------------------------------------------------------------------
\29\ 82 FR 16093 (Mar. 31, 2017).
---------------------------------------------------------------------------
List of Subjects in 49 CFR Part 234
Highway safety, Penalties, Railroad safety, Reporting and
recordkeeping requirements, State and local governments.
The Final Rule
For the reasons discussed in the preamble, FRA is amending part 234
of chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:
PART 234--GRADE CROSSING SAFETY
0
1. The authority citation for part 234 is revised to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20152, 20160, 21301, 21304,
21311; Sec. 11401, Div. A, Pub. L. 114-94, 129 Stat. 1679 (49 U.S.C.
22501 note); and 49 CFR 1.89.
0
2. In Sec. 234.1, revise and republish paragraph (a) to read as
follows:
Sec. 234.1 Scope.
(a) This part prescribes minimum--
(1) Maintenance, inspection, and testing standards for highway-rail
grade crossing warning systems;
(2) Standards for the reporting of failures of highway-rail grade
crossing warning systems and for the actions that railroads must take
when such systems malfunction;
(3) Requirements for certain identified States to update their
existing State highway-rail grade crossing action plans and submit
reports about the implementation of their existing plans and for the
remaining States and the District of Columbia to develop State highway-
rail grade crossing action plans;
(4) Requirements that certain railroads establish systems for
receiving toll-free telephone calls reporting various unsafe conditions
at highway-rail grade crossings and pathway grade crossings, and for
taking certain actions in response to those calls; and
(5) Requirements for reporting to, and periodically updating
information contained in, the U.S. DOT National Highway-Rail Crossing
Inventory for highway-rail and pathway crossings.
* * * * *
0
3. Revise Sec. 234.5 by adding in alphabetical order definitions of
``Accident/incident,'' ``Pathway grade crossing,'' and ``State highway-
rail grade crossing action plan or Action Plan'' to read as follows:
Sec. 234.5 Definitions.
As used in this part:
Accident/incident means any impact between railroad on-track
equipment and a highway user at a highway-rail grade crossing or
pathway grade crossing. The term ``highway user'' includes automobiles,
buses, trucks, motorcycles, bicycles, farm vehicles, pedestrians, and
all other modes of surface transportation motorized and un-motorized.
* * * * *
Pathway grade crossing means a pathway that crosses one or more
railroad tracks at grade and that is--
(1) Explicitly authorized by a public authority or a railroad;
(2) Dedicated for the use of non-vehicular traffic, including
pedestrians, bicyclists, and others; and
(3) Not associated with a public highway, road, or street, or a
private roadway.
* * * * *
State highway-rail grade crossing action plan or Action Plan means
a document submitted to FRA for review and approval by a State of the
United States (or the District of Columbia), which contains the
elements required by Sec. 234.11(e) to address safety at highway-rail
and pathway grade crossings.
* * * * *
0
4. Revise Sec. 234.11 to read as follows:
Sec. 234.11 State highway-rail grade crossing action plans.
(a) Purpose. The purpose of this section is to reduce accident/
incidents at highway-rail and pathway grade crossings nationwide by
requiring States and the District of Columbia to develop or update
highway-rail grade crossing action plans and implement them. This
section does not restrict any other entity from adopting a highway-rail
grade crossing action plan. This section also does not restrict any
State or the District of Columbia from adopting a highway-rail grade
crossing action plan with additional or more stringent requirements not
inconsistent with this section.
(b) New Action Plans. (1) Except for the 10 States identified in
paragraph (c)(3) of this section, each State and the District of
Columbia shall develop a State highway-rail grade crossing action plan
that addresses each of the required
[[Page 80660]]
elements listed in paragraph (e) of this section and submit such plan
to FRA for review and approval not later than February 14, 2022.
(2) Each State and the District of Columbia shall submit its
highway-rail grade crossing action plan electronically through FRA's
website in Portable Document Format (PDF).
(c) Updated Action Plan and implementation report. (1) Each of the
10 States listed in paragraph (c)(3) of this section shall develop and
submit to FRA for review and approval an updated State highway-rail
grade crossing action plan that addresses each of the required elements
listed in paragraph (e) of this section, not later than February 14,
2022.
(2) Each of the 10 States listed in paragraph (c)(3) of this
section shall also develop and submit to FRA, not later than February
14, 2022, a report describing:
(i) How the State implemented the State highway-rail grade crossing
action plan that it previously submitted to FRA for review and
approval; and
(ii) How the State will continue to reduce highway-rail and pathway
grade crossing safety risks.
(3) The requirements of this paragraph (c) apply to the following
States: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa,
Louisiana, Ohio, and Texas.
(d) Electronic submission of updated Action Plan and implementation
report. Each of the 10 States listed in paragraph (d)(2) of this
section shall submit its updated highway-rail grade crossing action
plan and implementation report electronically through FRA's website in
PDF form.
(e) Required elements for State highway-rail grade crossing action
plans. Each State highway-rail grade crossing action plan described in
paragraphs (b) and (c) of this section shall:
(1) Identify highway-rail and pathway grade crossings that:
(i) Have experienced at least one accident/incident within the
previous 3 years;
(ii) Have experienced more than one accident/incident within the
previous 5 years; or
(iii) Are at high-risk for accidents/incidents as defined in the
Action Plan. Each State or the District of Columbia that identifies
highway-rail and pathway grade crossings that are at high-risk for
accidents/incidents in its Action Plan shall provide a list of the
factors that were considered when making this determination. At a
minimum, these factors shall include:
(A) Average annual daily traffic;
(B) Total number of trains per day that travel through each
crossing;
(C) Total number of motor vehicle collisions at each crossing
during the previous 5-year period;
(D) Number of main tracks at each crossing;
(E) Number of roadway lanes at each crossing;
(F) Sight distance (stopping, corner and clearing) at each
crossing;
(G) Roadway geometry (vertical and horizontal) at each crossing;
and
(H) Maximum timetable speed;
(2) Identify data sources used to categorize the highway-rail and
pathway grade crossings in paragraph (e)(1) of this section;
(3) Discuss specific strategies, including highway-rail grade
crossing closures or grade separations, to improve safety at those
crossings over a period of at least four years;
(4) Provide an implementation timeline for the strategies discussed
in paragraph (e)(3) of this section; and
(5) Designate an official responsible for managing implementation
of the State highway-rail grade crossing action plan.
(f) Point of contact for State highway-rail grade crossing action
plans. (1) When the State or the District of Columbia submits its
highway-rail grade crossing action plan or updated Action Plan and
implementation report electronically through FRA's website, the
following information shall be provided to FRA for the designated
official described in paragraph (e)(5) of this section:
(i) The name and title of the designated official;
(ii) The business mailing address for the designated official;
(iii) The email address for the designated official; and
(iv) The daytime business telephone number for the designated
official.
(2) If the State or the District of Columbia designates another
official to assume the responsibilities described in paragraph (e)(5)
of this section before December 16, 2024, the State or the District of
Columbia shall contact FRA and provide the information listed in
paragraph (f)(1) of this section for the new designated official.
(g) Review and approval. (1) FRA will update its website to reflect
receipt of each new, updated, or corrected highway-rail grade crossing
action plan submitted pursuant to this section.
(2)(i) Within 60 days of receipt of each new, updated, or corrected
highway-rail grade crossing action plan, FRA will conduct a preliminary
review of the Action Plan to ascertain whether the elements prescribed
in paragraph (e) of this section are adequately addressed in the plan.
(ii) Each new, updated, or corrected State highway-rail grade
crossing action plan shall be considered conditionally approved for
purposes of this section sixty (60) days after receipt by FRA unless
FRA notifies the designated official described in paragraph (e)(5) of
this section that the highway-rail grade crossing action plan is
incomplete or deficient.
(iii) FRA reserves the right to conduct a more comprehensive review
of each new, updated, or corrected State highway-rail grade crossing
action plan within 120 days of receipt.
(3) If FRA determines that the new, updated, or corrected highway-
rail grade crossing action plan is incomplete or deficient:
(i) FRA will provide email notification to the designated official
described in paragraph (e)(5) of this section of the specific areas in
which the Action Plan is deficient or incomplete and allow the State or
the District of Columbia to complete the plan and correct the
deficiencies identified.
(ii) Within 60 days of the date of FRA's email notification
identifying the specific areas in which the highway-rail grade crossing
action plan is incomplete or deficient, the State or District of
Columbia shall correct all deficiencies and submit the corrected State
highway-rail grade crossing action plan to FRA for approval. The
corrected highway-rail grade crossing action plan shall be submitted
electronically through FRA's website in PDF format.
(4)(i) When a new, updated, or corrected State highway-rail grade
crossing action plan is fully approved, FRA will provide email
notification to the designated official described in paragraph (e)(5)
of this section.
(ii) FRA will make each fully-approved State highway-rail grade
crossing action plan publicly available for online viewing.
(iii) Each State and the District of Columbia shall implement its
fully-approved highway-rail grade crossing action plan.
(h) Condition for grants. The Secretary of Transportation may
condition the awarding of any grants under 49 U.S.C. ch. 244 on the
State's or District of Columbia's submission of an FRA-approved State
highway-rail grade crossing action plan under this section.
Sec. 234.301 [Amended]
0
5. Amend Sec. 234.301 by removing the definition of ``Pathway grade
crossing.''
[[Page 80661]]
Issued in Washington, DC.
Quintin C. Kendall,
Deputy Administrator, Federal Railroad Administration.
[FR Doc. 2020-26064 Filed 12-11-20; 8:45 am]
BILLING CODE 4910-06-P