E9-27241. State Highway-Rail Grade Crossing Action Plans

AGENCY:

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

ACTION:

Removal of direct final rule provisions.

SUMMARY:

On September 2, 2009, FRA published a direct final rule in the Federal Register requiring the ten States with the most highway-rail grade crossing collisions, on average, over the past three years, to develop State highway-rail grade crossing action plans. FRA received one adverse comment regarding the direct final rule. Under FRA regulations, FRA must withdraw a direct final rule where an adverse comment is submitted. FRA issued and submitted a notice of withdrawal to the Federal Register; however, due to regulatory production schedules and time constraints, the direct final rule was not withdrawn before its effective date. As a result, FRA is now publishing this removal of the direct final rule provisions, which removes the changes effected by the direct final rule. In a separate document publishing elsewhere in this issue of the Federal Register, FRA is publishing a Notice of Proposed Rulemaking (NPRM).

DATES:

This removal of the direct final rule becomes effective on November 13, 2009.

Docket Information: Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time, or to room W12-140 on the Ground level of the West Building, 1200 New Jersey Ave., SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT:

Ron Ries, Office of Safety, FRA, 1200 New Jersey Ave., SE., RRS-23, Mail Stop 25, Washington, DC 20590 (Telephone [phone]), or Zeb Schorr, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Ave., SE., Mail Stop 10, Washington, DC 20590 (Telephone [phone]).

SUPPLEMENTAL INFORMATION:

I. Withdrawal of Direct Final Rule

Pursuant to FRA's direct final rulemaking procedures set forth at 49 CFR 211.33, FRA published a direct final rule in the Federal Register on September 2, 2009 (74 FR 45336). FRA received one adverse comment regarding the direct final rule. Pursuant to 49 CFR 211.33(d), FRA must withdraw a direct final rule where an adverse comment is submitted. FRA issued and submitted a notice of withdrawal to the Federal Register; however, due to regulatory production schedules and time constraints, the direct final rule was not withdrawn before its effective date. As a result, FRA is now publishing this removal of the direct final rule provisions, which removes the changes effected by the direct final rule. In addition, in a separate document, FRA is contemporaneously publishing an NPRM in this issue of the Federal Register.

As discussed, this removal returns the regulatory text revised by the direct final rule to its formulation prior to the direct final rule going into effect. As noted, pursuant to 49 CFR 211.33(d), the direct final rule could have been removed with a notice of withdrawal; however, due to time constraints, such a notice was not published prior to the direct final rule going into effect. Moreover, FRA is contemporaneously publishing a proposed rule providing notice and comment regarding these same revisions in this issue of the Federal Register. Consequently, FRA believes that it is appropriate for this removal to become effective on the date of its publication, and that notice and comment in this instance is unnecessary.

II. Section-by-Section Analysis

FRA believes that a section-by-section analysis is not necessary in this document. As noted, FRA's direct final rulemaking procedures set forth at 49 CFR 211.33 require FRA to withdraw a direct final rule where an adverse comment is submitted. In order to comply with these procedures, FRA is now publishing this removal in order to return the regulatory text revised by the direct final rule to its formulation prior to the direct final rule going into effect (November 2, 2009). In addition, as noted, FRA is contemporaneously publishing an NPRM in this issue of the Federal Register regarding these same provisions.

III. Regulatory Impact and Notices

FRA likewise believes that a regulatory impact and notices discussion is not necessary in this document. Again, in order to comply with its direct final rulemaking procedures, FRA is now publishing this removal in order to return the regulatory text revised by the direct final rule to its formulation prior to the direct final rule going into effect (November 2, 2009). Moreover, FRA is contemporaneously publishing an NPRM in this issue of the Federal Register, which provides notice of the changes originally existing in the direct final rule, while also including a complete discussion regarding regulatory impact.

List of Subjects in 49 CFR Part 234

• Highway safety; Penalties; Railroad safety; and Reporting and recordkeeping requirements

The Rule

In consideration of the foregoing, FRA amends part 234 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows:

PART 234—GRADE CROSSING SIGNAL SYSTEM SAFETY

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

Authority: 49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.49.

2. The heading for part 234 is revised to read as set forth above.

3. Section 234.1 is revised to read as follows:

§ 234.1

Scope.

This part imposes minimum maintenance, inspection, and testing standards for highway-rail grade crossing warning systems. This part also prescribes standards for the reporting of failures of such systems and prescribes minimum actions railroads must take when such warning systems malfunction. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements not inconsistent with this part.

4. Section 234.3 is revised to read as follows:

§ 234.3

Application.

This part applies to all railroads except:

(a) A railroad that exclusively operates freight trains only on track which is not part of the general railroad system of transportation;

(b) Rapid transit operations within an urban area that are not connected to the general railroad system of transportation; and

(c) A railroad that operates passenger trains only on track inside an installation that is insular; i.e., its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of the public—except a business guest, a licensee of the railroad or an affiliated entity, or a trespasser—would be affected by the operation. An operation will not be considered insular if one or more of the following exists on its line:

(1) A public highway-rail crossing that is in use;

(2) An at-grade rail crossing that is in use;

(3) A bridge over a public road or waters used for commercial navigation; or

(4) A common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad.

5. Section 234.4 is revised to read as follows:

§ 234.4

Preemptive effect.

Under 49 U.S.C. 20106 (formerly § 205 of the Federal Railroad Safety Act of 1970 (45 U.S.C. 434)), issuance of these regulations preempts any State law, rule, regulation, order, or standard covering the same subject matter, except a provision directed at an essentially local safety hazard that is consistent with this part and that does not impose an undue burden on interstate commerce.

6. Section 234.6 is revised to read as follows:

§ 234.6

Penalties.

(a) Civil Penalty. Any person (an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: a railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $650, but not more than $25,000 per violation, except that: penalties may be assessed against individuals only for willful violations, and where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $100,000 per violation may be assessed. Each day a violation continues shall constitute a separate offense. Appendix A to this part contains a schedule of civil penalty amounts used in connection with this rule. The railroad is not responsible for compliance with respect to any condition inconsistent with the technical standards set forth in this part where such variance arises as a result of actions beyond the control of the railroad and the railroad could not have prevented the variance through the exercise of due diligence. The foregoing sentence does not excuse any instance of noncompliance resulting from the actions of the railroad's employees, agents, or contractors.

(b) Criminal Penalty. Whoever knowingly and willfully makes, causes to be made, or participates in the making of a false entry in reports required to be filed by this part, or files a false report or other document required to be filed by this part is subject to a $5,000 fine and 2 years imprisonment as prescribed by 49 U.S.C. 522(a) and section 209(e) of the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 438(e)).

Subpart B—Reports

7. The heading to Subpart B—Reports and Plans is revised to read as set forth above.

§ 234.11

[Removed]

8. Section 234.11 is removed.

Issued in Washington, DC, on November 5, 2009.

Joseph C. Szabo,

Administrator, Federal Railroad Administration.