[Federal Register Volume 60, Number 41 (Thursday, March 2, 1995)]
[Proposed Rules]
[Pages 11646-11654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5100]
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DEPARTMENT OF ENERGY
48 CFR Parts 933 and 970
Regulation Identifier Number 1991-AB20 Acquisition Regulation;
Department of Energy Management and Operating Contracts
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) today issues a Notice of
Proposed Rulemaking to amend the Department of Energy Acquisition
Regulation (DEAR) to modify requirements for management and operating
contractor purchasing systems. DEAR subpart 970.71 will be revised to
identify certain purchasing system objectives and standards; eliminate
the application of the ``Federal norm''; and place greater reliance on
commercial practices.
DATES: Written comments on the proposed rulemaking must be received on
or before May 1, 1995.
ADDRESSES: Comments on the proposed rulemaking should be addressed to
the U.S. Department of Energy, Director, Procurement and Property
Review and Evaluation Division (HR-525.1), Attention: James J.
Cavanagh, 1000 Independence Avenue SW., Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: James J. Cavanagh, Director,
Procurement and Property Review and Evaluation Division (HR-525.1),
U.S. Department of Energy, 1000 Independence Avenue, SW., Washington,
DC 20585; telephone 202-586-8257.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background.
II. Section-by-Section Analysis.
III. Public Comments.
IV. Procedural Requirements.
A. Review Under Executive Order 12866.
B. Review Under the National Environmental Policy Act.
C. Review Under the Paperwork Reduction Act.
D. Review Under the Regulatory Flexibility Act.
E. Review Under Executive Order 12612.
F. Review Under Executive Order 12778.
G. Public Hearing Determination.
I. Background
The Government-wide approach to evaluating contractor purchasing
systems, as set forth in Federal Acquisition Regulation (FAR) Subpart
44.301, is to ``evaluate the efficiency and effectiveness with which
the contractor spends Government funds and complies with the Government
policy when subcontracting.'' Most Federal contracts require purchases
to be made in accordance with the applicable laws and the terms and
conditions of the contract, with minimal references back to acquisition
regulations. The policy for the extent of reviews of these purchasing
systems is set forth at FAR 44.303.
Unlike other contractors, however, a DOE management and operating
contractor historically has been expected to conform its purchasing
practices to the ``Federal norm.'' As provided at the DEAR 970.7103,
the Federal norm is an ``evolving concept'', which attempts to balance
commercial purchasing practices with Federal procurement principles
embodied in law and regulation. The DEAR identifies a number of tenets
of Federal policy and practices to which DOE's management and operating
contractors must adhere. As a result of the Federal norm, and
iterations of related reviews, audits, and protest decisions,
management and operating contractor purchasing has, over the years,
become increasingly Federal-like, replacing efficient and effective
commercial business practices.
In accordance with the objectives of the National Performance
Review and the Secretary of Energy's Contract Reform Team Report, the
Department intends to revise its expectations for management and
operating contractor purchasing systems by eliminating the concept of
the ``Federal norm.'' In lieu of the detailed tenets contained in DEAR
subpart 970.71, which have resulted in the inefficient layering of non-
commercial systems and practices, the Department has identified certain
purchasing system objectives and standards which it believes are common
to superior purchasing activities, whether they be commercial or
public.
In addition, as the Department eliminates the concept of the
``Federal norm,'' the Department intends that any disagreements with
management and operating contractor purchasing decision(s) be a matter
to be settled between the contractor and potential subcontractor(s).
Such disagreements are typically handled in this manner in the
commercial sector. The Department expects that its management and
operating contractors shall handle any [[Page 11647]] such
disagreements in an open, fair, and reasonable manner, and endorses the
use of ombudsmen and alternative disputes resolution procedures for
that purpose. Accordingly, by this action, the Department proposes to
delete DEAR 970.7107 which provides guidelines for the consideration of
subcontractor level protests. This is consistent with the General
Accounting Office proposed rule published at 60 FR 5871, January 31,
1995. It is the intention of the Department to incorporate the changes
made by this proposed rule into existing management and operating
contracts as soon as practicable after the effective date of a final
rule.
II. Section-by-Section Analysis
1. Section 933.170, Subcontract level protests, is removed.
2. The revision to paragraph (a) of the clause, Contractor
Purchasing System, at 970.5204-22 provides guidance for a management
and operating contract acquisition system consistent with proposed
revisions to section 970.7103.
3. Section 970.7101, General, is revised by removing paragraphs (c)
and (d).
4. The revision to section 970.7102(a) removes the parenthetical
which contains references which will no longer exist when sections
970.7104 and 970.7108 are removed in their entirety. Section
970.7102(b)(3) is revised to provide that review of individual
purchasing actions shall be pursuant to FAR Subpart 44.2. Section
970.7102(b)(4) is revised to provide that periodic appraisals shall be
in accordance with established policies in section 970.7103.
5. The revisions to section 970.7103 eliminate the concept of the
``Federal norm,'' and establish contractor purchasing systems
objectives, expectations, and standards.
6. Section 970.7104, Conditions of purchasing by management and
operating contractors, is removed. The DOE believes it is not necessary
to retain this section since many of the requirements comply with
provisions of statutes and are already reflected in contract clauses.
These requirements will, therefore, continue to be applicable as
contractual requirements. Some of the requirements, however, are not
specifically prescribed in other parts of the DEAR. The Department will
review such requirements prior to finalization of this proposed rule
and may redesignate appropriate paragraphs, in the final rule, to other
parts of the DEAR, if necessary. If such requirements are identified,
the Department will publish a Federal Register notice, prior to issuing
a final rule, listing the paragraphs being considered for
redesignation.
7. Section 970.7106, Procedures for handling mistakes relating to
management and operating contractor purchases, is removed.
8. Section 970.7107, Protest of management and operating contractor
procurements, is removed.
III. Public Comments
DOE invites interested persons to participate by submitting data,
views, or arguments with respect to the DEAR amendments set forth in
this rule. Three copies of written comments should be submitted to the
address indicated in the ``ADDRESSES'' section of this rule. All
comments received will be available for public inspection during normal
work hours. All written comments received by the date indicated in the
``DATES'' section of this notice will be carefully assessed and fully
considered prior to the effective date of these amendments as a final
rule. Any information considered to be confidential must be so
identified and submitted in writing, one copy only. DOE reserves the
right to determine the confidential status of the information and to
treat it according to its determination in accordance with 10 CFR
1004.11.
IV. Procedural Requirements
A. Review Under Executive Order 12866
This regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
B. Review Under the National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR 1500-1508), the Department has established guidelines for its
compliance with the provisions of the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321 et seq.). Pursuant to appendix A of
subpart D of 10 CFR part 1021, National Environmental Policy Act
Implementing Procedures (Categorical Exclusion A6), the Department of
Energy has determined that this proposed rule is categorically excluded
from the need to prepare an environmental impact statement or
environmental assessment.
C. Review Under the Paperwork Reduction Act
To the extent that new information collection or recordkeeping
requirements are imposed by this rulemaking, they are provided for
under Office of Management and Budget paperwork clearance package No.
1910-0300. No new information collection is proposed by this rule.
D. Review Under the Regulatory Flexibility Act
This proposed rule was reviewed under the Regulatory Flexibility
Act of 1980, Pub. L. 96-354, which requires preparation of a regulatory
flexibility analysis for any rule which is likely to have significant
economic impact on a substantial number of small entities. This
proposed rule will have no impact on interest rates, tax policies or
liabilities, the cost of goods or services, or other direct economic
factors. It will also not have any indirect economic consequences, such
as changed construction rates. DOE certifies that this rule will not
have a significant economic impact on a substantial number of small
entities and, therefore, no regulatory flexibility analysis has been
prepared.
E. Review Under Executive Order 12612
Executive Order 12612 entitled ``Federalism,'' 52 FR 41685 (October
30, 1987), requires that regulations, rules, legislation, and any other
policy actions be reviewed for any substantial direct effects on
States, on the relationship between the Federal Government and the
States, or in the distribution of power and responsibilities among
various levels of Government. If there are sufficient substantial
direct effects, then the Executive Order requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating and implementing a policy action. The Department of Energy
has determined that this proposed rule will not have a substantial
direct effect on the institutional interests or traditional functions
of States.
F. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2(a)
and (b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected legal conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable [[Page 11648]] effort to ensure that the
regulation: specifies clearly any preemptive effect, effect on existing
Federal law or regulation, and retroactive effect; describes any
administrative proceedings to be available prior to judicial review and
any provisions for the exhaustion of such administrative proceedings;
and defines key terms. DOE certifies that this rule meets the
requirements of sections 2(a) and 2(b) of Executive Order 12778.
G. Public Hearing Determination
DOE has concluded that this proposed rule does not involve any
significant issues of law or fact. Therefore, consistent with 5 U.S.C.
553, DOE has not scheduled a public hearing.
List of Subjects in 48 CFR Parts 933 and 970
Government procurement.
Issued in Washington, D.C. on February 24, 1995.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set forth in the preamble, chapter 9 of title 48 of
the Code of Federal Regulations is proposed to be amended as set forth
below.
PART 933--PROTESTS, DISPUTES, AND APPEALS
1. The authority citation for part 933 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c)
933.170 [Removed]
2. Section 933.170 is removed.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
3. The authority citation for part 970 continues to read as
follows:
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act, Pub.
L. 95-91 (42 U.S.C. 7254), sec. 201 of the Federal Civilian Employee
and Contractor Travel Expenses Act of 1985 (41 U.S.C. 420) and sec.
1534 of the Department of Defense Authorization Act, 1986, Pub. L.
99-145 (42 U.S.C. 7256a), as amended.
4. At 970.5204-22, revise paragraph (a) of the clause to read as
follows:
970.5204-22 Contractor purchasing system.
(a) The contractor shall develop, implement, and maintain formal
policies, practices and procedures to be used in the award of
subcontracts consistent with DEAR 970.71. The contractor's purchasing
system and methods shall be fully documented, consistently applied, and
acceptable to DOE in accordance with DEAR 970.7102. The contractor's
purchasing performance will be evaluated against agreed-upon criteria
in accordance with the performance criteria and measures clause(s) set
forth elsewhere in this contract. DOE reserves the right at any time to
require that the contractor submit for approval any or all purchases
under this contract. The Contractor shall not purchase any item or
service the purchase of which is expressly prohibited by the written
direction of DOE and shall use such special and directed sources as may
be expressly required by the DOE contracting officer.
* * * * *
970.7101 [Amended]
5. Section 970.7101 is amended by removing paragraphs (c) and (d).
970.7102 [Amended]
6. Section 970.7102 is amended at: paragraph (a) to remove the
parenthetical at the end of the paragraph; paragraph (b)(3) by removing
the words ``to assure that management and operating contractors
implement DOE policies and requirements as defined in this subpart, in
accordance with the contractor's accepted system and methods'' and
adding in its place the words ``pursuant to FAR 44.2''; and paragraph
(b)(4) by removing ``Subpart 944.3 and 970.7108'' and adding in its
place ``970.7103.''
970.7103 [Revised]
7. Section 970.7103 is revised to read as follows: 970.7103
Contractor purchasing system.
The following shall apply to the purchasing systems of management
and operating contractors:
(a) The objective of a management and operating contractor's
purchasing system is to deliver to its customers on a timely basis
those best value products and services necessary to accomplish the
purposes of the Government's contract. To achieve this objective,
contractors are expected to use their experience, expertise and
initiative consistent with this subpart.
(b) The purchasing systems and methods used by management and
operating contractors shall be well-defined, consistently applied, and
shall follow purchasing practices appropriate for the requirement and
dollar value of the purchase. It is anticipated that purchasing
practices and procedures will vary among contractors and according to
the type and kinds of purchases to be made.
(c) Contractor purchases are not Federal procurements, and are not
directly subject to the Federal Acquisition Regulation. Nonetheless,
certain Federal laws, Executive Orders, and regulations may affect
contractor purchasing, as required by statute, regulation, or contract
terms and conditions.
(d) Contractor purchasing systems shall identify and apply the best
in commercial purchasing practices and procedures (although nothing
precludes the adoption of Federal procurement practices and procedures)
to achieve system objectives. Where specific requirements do not
otherwise apply, the contractor purchasing system shall provide for
appropriate measures to ensure:
(1) Acquisition of quality products and services at fair and
reasonable prices;
(2) Use of capable and reliable subcontractors who either:
(i) Have track records of successful past performance, or
(ii) Can demonstrate a current superior ability to perform;
(3) Minimization of acquisition lead-time and administrative costs
of purchasing;
(4) Use of effective competitive techniques;
(5) Reduction of performance risks associated with subcontractors,
and facilitation of quality relationships which can include techniques
such as partnering agreements, ombudsmen, and alternative disputes
procedures.
(6) Use of self-assessment and benchmarking techniques to support
continuous improvement in purchasing;
(7) Maintenance of the highest professional and ethical standards;
and
(8) Maintenance of file documentation appropriate to the value of
the purchase and which is adequate to establish the propriety of the
transaction and the price paid.
970.7104 through 970.7104-47, 970.7106, 970.7107 [Removed]
8. Sections 970.7104 through 970.7104-47 970.7106, and 970.7107 are
removed.
[FR Doc. 95-5173 Filed 3-1-95; 8:45 am]
BILLING CODE 6450-01-P
[[Page 11649]]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 234
[FRA Docket No. RSGC-6; Notice No. 1]
RIN 2130-AA92
Selection and Installation of Grade Crossing Warning Systems;
Notice of Proposed Rulemaking
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of Proposed Rulemaking (NPRM).
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SUMMARY: FRA proposes to prohibit railroads from unilaterally selecting
and installing highway-rail grade crossing warning systems at public
highway-rail crossings. FRA further proposes to require that railroads
furnish state highway authorities with information necessary for state
grade crossing project planning and prioritization purposes.
DATES: (1) Written comments must be received no later than May 16,
1995. Comments received after that date will be considered to the
extent possible without incurring additional expense or delay.
(2) A public hearing will be held at 9:30 a.m. on May 9, 1995. Any
person who wishes to speak at the hearing should notify the FRA Docket
Clerk at least five working days before to the hearing, by telephone or
by mail.
ADDRESSES: (1) Written comments should be submitted to the Docket
Clerk, Office of Chief Counsel, FRA, 400 Seventh Street, SW.,
Washington, DC 20590. Persons desiring to be notified that their
written comments have been received by FRA should submit a stamped,
self-addressed postcard with their comments. The Docket Clerk will
indicate on the postcard the date on which the comments were received
and will return the card to the addressee. Written comments will be
available for examination, both before and after the closing date for
comments, during regular business hours in Room 8201 of the Nassif
Building at the above address.
(2) A public hearing will be held in room 2230 of the Nassif
Building, 400 Seventh Street, SW., Washington, DC Persons desiring to
speak at the hearing should notify the Docket Clerk by telephone (202-
366-0628) or by writing to the Docket Clerk at the address above.
FOR FURTHER INFORMATION CONTACT: Bruce F. George, Chief, Highway-Rail
Crossing and Trespasser Programs Division, Office of Safety, FRA, 400
Seventh Street, SW., Washington, DC 20590 (telephone 202-366-0533), or
Mark Tessler, Trial Attorney, Office of Chief Counsel, FRA, 400 Seventh
Street, SW., Washington, DC 20590 (telephone 202-366-0628).
SUPPLEMENTARY INFORMATION: This NPRM clarifies the respective
responsibilities of railroads and state and local governments regarding
the selection and installation of highway-rail grade crossing warning
systems. This proposal is issued to eliminate confusion and uncertainty
as to the role of railroads in the selection and installation process.
FRA expects the proposed rules to ``substantially subsume'' the subject
matter of railroads' selection and installation of highway rail grade
crossing warning systems and as such will preempt state laws covering
the same subject matter.
Background
Highway-rail grade crossings present inherent risks to users,
including motorists, pedestrians, railroad passengers and railroad
employees. Of the more than 168,000 public highway-rail grade crossings
in the nation, only 28,100 are fully equipped with automatic lights,
gates and bells; fewer than 1,000 of the 108,000 private crossings are
so equipped. The vast majority of public crossings (and private
crossings) are equipped with only passive warning devices such as
crossbucks. Engineering improvements at individual crossings, education
of the public, and enforcement of highway traffic laws have reduced
accidents and casualties at highway-rail crossings. Since 1978,
accidents and fatalities have decreased dramatically despite increased
highway usage, stable rail traffic levels, and increased train speeds.
However, the present loss of life, injuries and property damage are
still unacceptable. Highway-rail collisions are the number one cause of
death in the entire railroad industry, far surpassing employee or
passenger fatalities. Additionally, the proportion of severe accidents
(i.e., those likely to result in fatalities) is rising. Nearly 4,900
collisions occurred between highway users and on-track railroad
equipment in 1993. More than 600 people were killed and over 1,800 were
seriously injured in these collisions.
In 1973 Congress first established the Rail-Highway Crossing
Program (section 130 program) to improve highway-rail crossing safety.
Continuous federal funding since then has made more than $3 billion
available in improvement funds, representing more than 90% of project
costs under this program. Because highway-rail grade crossing safety is
primarily achieved through highway traffic control, DOT'S Federal
Highway Administration (FHWA) has oversight responsibility for the
program. See 49 CFR 1.48.
State Safety Prioritization Process
FHWA regulations provide uniform federal standards for all highway
traffic control systems, including those at highway-rail crossings. The
federal government, rather than dictating the specific type of warning
system to be installed at each of the nation's 168,000 public grade
crossings, has established the outline of the required planning and
selection process. FHWA has adopted regulations governing the process
by which states are to establish priorities for implementing highway
safety improvement projects, including projects for elimination of
hazards of highway-rail grade crossings.
FHWA's regulations detail the uniform planning process involved in
selecting the crossings to be improved (23 CFR Part 924.) The planning
component of a state's highway safety improvement program is required
to incorporate a process for collecting and maintaining a record of
accident, traffic, and highway data including characteristics of both
highway and rail traffic. The planning component must also contain a
process for analyzing data to identify hazardous highway locations
based on accident experience or accident potential as well as
containing a process for conducting engineering studies of hazardous
locations. Of vital importance in ensuring that limited funds are spent
in a manner that will achieve the greatest safety return, a state's
safety improvement program is required to have a process for
establishing priorities for implementing highway safety improvement
projects. That process must consider the potential reduction in the
number and/or severity of accidents; the cost of the projects and
resources available; the relative hazard of public highway-rail
crossings based on a hazard index formula; on-site inspections of
crossings; potential danger to large numbers of people at crossings
used on a regular basis by passenger trains, buses, pedestrians,
bicyclists or by trains and motor vehicles carrying hazardous
materials; and other criteria as appropriate in each state. 23 CFR
924.9.
As a review of the planning and prioritization components shows,
the process outlined above could only be carried out by an entity
capable of gathering and analyzing all the needed data. A railroad has
only data available [[Page 11650]] to it which is railroad specific:
rail traffic volume, authorized speed, number of tracks, type of train
control system, and projected changes in these areas. Even accident
data available to a railroad are of uncertain benefit since they are
limited to the experiences of that one railroad rather than compared
and collated with similar data from other railroads in the state or
even other railroads whose tracks are crossed by the same highway.
The federal government has recognized that individual entities such
as railroads do not have the requisite analytical tools and information
gathering ability to make the appropriate decisions regarding the most
appropriate focusing of limited safety improvement funds. State
agencies have the necessary analytical tools and information. It is
therefore appropriate that they have the responsibility for the actual
selection of specific crossings and the determination of the type of
warning devices to be installed.
The Secretary, through FHWA, has also issued standards governing
the form and placement of all grade crossing warning systems
irrespective of whether federal funds are used in their installation.
23 CFR 646.214. FHWA's Manual on Uniform Traffic Control Devices
(MUTCD), incorporated by reference into the Code of Federal Regulations
(23 CFR 655.601), establishes ``traffic control device standards for
all streets and highways open to public travel regardless of type or
class or the governmental agency having jurisdiction.'' MUTCD 1A-2. The
MUTCD establishes uniform standards relating to design and placement of
traffic control signs, pavement markings and automatic warning devices.
These standards apply nationwide--even when the improvements have not
been paid for with federal funds.
DOT Safety Initiatives
This proposed rule is but one component of a continuing DOT
campaign to improve grade crossing safety. DOT's Grade Crossing Action
Plan includes several initiatives that will aid in improving safety at
grade crossings. This plan details six major Departmental initiatives
encompassing 55 separate actions addressing highway-rail grade crossing
safety and trespass prevention. These initiatives include: enhanced
enforcement of traffic laws at crossings; enhanced rail corridor
crossing reviews and improvements; expanded public education and
Operation Lifesaver activities; increased safety at private crossings;
improved data and research efforts; and prevention of rail trespassing.
A cornerstone of this grade crossing safety campaign is the closure
and consolidation of little used and redundant crossings. It is
generally acknowledged that there are too many highway-rail grade
crossings in this country--there are not sufficient resources from any
source or sources to provide full warning systems or grade separations
at all of the nation's crossings. Too many crossings are equipped only
with crossbuck warning signs. Elimination of poorly designed, less
travelled, and redundant crossings will clearly enhance the safety of
the travelling public. FRA has thus been advocating consolidation and
closure for a number of years. FRA's role of advocate reflects the fact
that state and local governments have the authority to close and
consolidate crossings just as they have the authority to create
crossings in connection with public road construction.
This rulemaking is one in a series of rules addressing the
responsibilities of the various parties in this critical rail safety
area. On September 27, 1994, FRA issued maintenance, inspection, and
testing rules (59 FR 50086, September 30, 1994). Those rules for the
first time impose specific responsibilities on railroads to maintain,
inspect and test active highway-rail grade crossing warning systems.
Additionally, FRA imposed on railroads the responsibility to take
specified actions when grade crossing warning systems malfunction. The
rules impose costs on railroads in addition to the more than $130
million they spend on crossing maintenance every year. The allocation
of responsibility to railroads regarding grade crossing maintenance,
inspection, and testing and response to malfunctions reflects reality--
railroads are the appropriate party to perform these activities. They
have the technical expertise and forces to perform the work. Safety is
enhanced by such allocation of responsibility.
Similarly, responsibilities have been allocated between railroads
and state and local agencies by the Congress in the Swift Rail
Development Act of 1994 (Pub. L. 103-440). Section 302 of that act
directs the Secretary of Transportation to issue regulations requiring
that a locomotive horn be sounded while each train is approaching and
entering each public grade crossing unless certain supplementary safety
measures are provided by the ``appropriate traffic control authority or
law enforcement authority responsible for safety at the highway-rail
grade crossing.'' Congress has implicitly recognized that railroads
have responsibility in areas over which they have control, such as
sounding of horns, while state and local traffic control authorities
have responsibility pertaining to those areas within their expertise
and under their control, namely, highway traffic control.
The NPRM
This NPRM would also define responsibilities in the grade crossing
area. It defines the responsibility of railroads to provide information
and assistance in those areas in which their expertise is paramount--
railroad operations. Railroads would be required to provide appropriate
state agencies information related to their operations and to
participate with state or local diagnostic teams to help the state or
local governmental body determine which crossings' warning systems
should be upgraded and to what extent.
This allocation of responsibility to railroads is based on the
recognition that state and local governmental bodies are the entities
with the expertise and information to look at the entire picture (of
which railroad traffic and plans are but one component): whether
crossings should be consolidated or closed; funding availability;
funding constraints; local desires; area residential, commercial and
industrial development plans; and highway traffic engineering demands
and constraints. Consistent with that expertise and information base,
state and local governmental bodies are the appropriate bodies to
determine which, how, and when highway rail grade crossing warning
systems should be upgraded. Because of the very high cost to install an
automatic traffic control warning system at a grade crossing--more than
$100,000 at a double track crossing--it is imperative that the limited
safety funds, from whatever sources, available for crossing
improvements be spent in a rational, uniform, and coordinated manner.
The present system whereby states, pursuant to FHWA regulations,
investigate, plan, and prioritize crossing improvements provides the
needed uniformity and coordination to ensure that the crossings most in
need of safety improvements are those that receive them. Grade crossing
safety is best enhanced by such a program that provides for a
systematic upgrading of traffic control devices at crossings that are
truly needed pursuant to a prioritized schedule established by state
authorities under uniform federal criteria. Such a program allows state
highway officials the ability to respond to the concerns of the public
in making grade crossing improvement decisions, [[Page 11651]] and
allows available resources to be allocated to the grade crossing
improvement projects yielding the highest safety returns. Simply
stated, this will save more lives than if an equal amount of money were
spent on upgrading crossings that statistically are not as dangerous.
In other, less frequent situations, a state agency, local
governmental body, or state or local legislative body may, outside of
the Federal-aid program, fund the upgrading of a warning system at a
specific crossing or order a railroad to install or upgrade a warning
system at its own expense. These proposed rules are not meant to
prevent those governmental authorities from being involved in such
activities. Although the selection decision in these situations may not
be based on the selection and installation criteria established by FHWA
and adopted by the state department of transportation or highway
department, presumably the governmental body's selection decision is
based on sound public policy and overall safety considerations derived
from information available to the state.
Some state laws, generally predating the advent of the Federal
Rail-Highway Crossing Program, impose a tort law duty upon railroads to
maintain safe crossings. In some cases this duty has been interpreted
to include a duty to select and install warning systems at hazardous
crossings. While this system may have been appropriate in the past,
when there was no systematic and uniform improvement program in
existence, today the result is one of misallocation of scarce
resources. This ad hoc system of grade crossing improvements, driven by
tort law and individual jury awards, runs counter to the goal of a
uniform national program based on planning and prioritization. Those
ofttimes arbitrary local requirements can result in the installation of
grade crossing warning systems, not where research and data indicates
they will do the most good, but where a judge or jury determined, after
the fact, that such a system should have been installed.
Jury verdicts based on common law standards are necessarily ad hoc,
case-by-case judgements that are retrospective in nature. The duties
now imposed upon railroads ad hoc in this manner are inconsistent with
the command of Congress that ``[l]aws, regulations, and orders related
to railroad safety shall be nationally uniform to the extent
practicable.'' (49 U.S.C. 20106) These verdicts do not provide an
appropriate mechanism for determining whether the crossing is needed in
the first place, and if needed, what warning devices are appropriate.
Neither do these verdicts provide an appropriate method for determining
the order in which crossings would be equipped or upgraded to yield the
greatest safety benefits. Moreover, these judgments divert resources
from saving lives through investments in grade crossing warning devices
to compensating those killed or injured in accidents or their
survivors. This is sound public policy only when the railroad has
breached a duty to them that it is appropriate for the railroad to
have.
In this proposed rule, FRA is defining in a nationally uniform
manner the safety duties railroads have in connection with the
selection and installation of warning devices at grade crossings. Tort
judgments in general certainly exert a salutary deterrent influence on
behaviors that rational actors can avoid, but here that deterrent is
distorted and diminished by the combination of (i) the lack of adequate
funds, public or private, to improve all grade crossings to the desired
level of safety, (ii) the focus of tort cases on whether a railroad has
satisfied its common law duties at the grade crossing in question
without regard to its behavior concerning grade crossings in general,
and (iii) large judgments for accidents at grade crossings of low
relative hazard. As things now stand, a railroad that is responsibly
investing its available funds for the improvement of grade crossings in
the order and in the manner specified by the transportation authorities
in the states it serves may be subjected to large tort judgments
resulting from the relatively random occurrence of accidents at grade
crossings of low hazard relative to those improved. The proposed
regulations are meant to ensure that the present system is not
compromised by state requirements that railroads select and install
grade crossing improvements outside of the coordinated and prioritized
federal/state system already established.
The Supreme Court, in a recent decision, CSX Transportation, Inc.
v. Easterwood, (113 S. Ct. 1732, (1993)) held that legal duties imposed
on railroads by a State's common law of negligence fall within the
scope of the preemption provision of 49 U.S.C. 20106, (formerly
Sec. 205 of the Federal Railroad Safety Act (45 U.S.C. Sec. 434)).
However, the Court held that preemption of such state laws will lie
only if the federal regulations substantially subsume the subject
matter of the relevant state law.
FRA expects the proposed rules will ``substantially subsume'' the
subject matter of railroads' selection and installation of highway rail
grade crossing warning systems and as such will preempt state laws
covering the same subject matter, regardless of whether Federal funding
of improvements is involved at a particular crossing.
In Easterwood, the Court held that ``for projects in which federal
funds participate in the installation of warning devices, the Secretary
has determined the devices to be installed and the means by which
railroads are to participate in their selection. The Secretary's
regulations therefore cover the subject matter of state law which, like
the tort law on which respondent relies, seeks to impose an independent
duty on a railroad to identify and/or repair dangerous crossings.'' 123
L. Ed. 2d at 401.
The Department believes that the distinction in safety duties drawn
in Easterwood depending upon whether or not improvements to a
particular grade crossing were federally funded results in poor public
policy that is likely to misallocate scarce funds for grade crossing
improvements because railroads are given a powerful financial incentive
either (i) to invest funds in improving crossings on some basis other
than the relative hazard rankings established by state highway
authorities or (ii), especially in the case of small railroads, to
diminish investment in grade crossing improvements because they cannot
tell where an adverse verdict may strike next and their net financial
results may be better served by using the funds to pay judgments they
are unable to avoid. Railroad and highway safety alike are best served
by focusing the economic and legal incentives of everyone involved in
the process to invest grade crossing improvement funds where the most
lives will be saved and the most injuries prevented. The proposed rule
is intended to achieve that result.
If, as the Department has recommended in its Highway-Rail Grade
Crossing Action Plan, state transportation authorities also begin
evaluating the hazards of grade crossings on entire rail corridors, the
proposed rule would accommodate improvements focused in that manner.
That is simply another way for state transportation authorities to
systematically evaluate the relative safety of highway rail grade
crossings and to decide which improvements will yield the best safety
results.
Moreover, highway rail grade crossing warning systems are devices
to control motor vehicle traffic on highways. Government bodies
responsible for [[Page 11652]] highways and motor vehicle safety are
the appropriate decision makers to decide which devices should be
installed on public highways and the order in which intersections
should be improved.
Railroads should be responsible for providing information to help
state highway authorities make those decisions and for helping to
implement those decisions after they are made. In fulfilling the
requirements of FHWA's Highway Safety Improvement Program (49 CFR Part
924), state agencies have a need for railroad information that might
have an impact on the type of improvement appropriate to a particular
crossing or that might affect the relative priority to be given in
upgrading one crossing versus another. Such data include present and
projected rail traffic (both hazardous and non-hazardous materials),
track configuration, signalling, and authorized train speed as well as
other conditions affecting the crossing. Railroads have historically
provided assistance to state agencies planning for grade crossing
improvements. The proposal would codify railroads' present practice of
providing information and assistance needed by those state agencies.
The proposal will not affect railroads' present obligations to
maintain grade crossing warning systems. Indeed, as noted above, FRA's
recently issued amendments to Grade Crossing Signal System Safety
regulations codify specific maintenance, inspection, and testing
requirements for grade crossing warning systems.
While this proposed rule prevents a railroad from unilaterally
selecting and installing warning systems, it does not prevent a state
agency from ordering a railroad to pay for all or part of grade
crossing warning system on a non-Federal aid project. While FRA is
philosophically opposed to the concept of a railroad being forced to
pay for an upgrade to what is essentially a highway traffic control
device for which it receives no net benefit (see 23 CFR 210(b)), FRA is
not prepared at this time to issue regulations preempting the many
state laws in this area.
Section-by-Section Analysis
Sec. 234.301 Railroad cooperation.
Paragraph (a) of this section requires that railroads cooperate
with the appropriate state agency in furnishing information to enable
the state to develop plans and project priorities for the elimination
of hazards of highway-rail grade crossings. Railroad plans to increase
traffic on a line or to upgrade track or signalling to enable increases
in train speed, are important factors which states must take into
consideration in determining their prioritization and plans. Similarly,
state planners need information regarding railroad plans or projections
regarding decreasing traffic volume. Railroads have generally provided
such information on a voluntary and routine basis. This provision
codifies the responsibility of a railroad to provide current and
projected information which is uniquely available to the railroad.
Without railroad information a state is unable to make the appropriate
decisions to determine which crossings should be upgraded and with
which type of warning systems. Many railroads already provide
information such as current train counts, speeds, type and number of
tracks and type of installed warning system to FRA or the state for
inclusion in the DOT/Association of American Railroads National
Highway-Rail Grade Crossing Inventory (Inventory) on file with FRA.
Duplicate submissions to a state are not necessary under this rule
inasmuch as Inventory data is routinely available to States.
Presently, information submissions by States and railroads to the
Inventory are made on a voluntary basis. Comments are specifically
invited regarding the advisability of making Inventory information
submission mandatory.
This section also provides that a railroad need not submit
proprietary data of a confidential nature to a state unless that
information will be protected from disclosure. Such provision will
ensure that railroads will not be penalized commercially by such
regulatory compliance.
Paragraph (b) of this section requires that railroads provide
appropriate engineering and other technical assistance to the state
agency in designing and installing the warning system determined by the
state to be appropriate to the particular crossing. In many instances a
railroad is the only party with the requisite technical expertise to
assist the state in developing the engineering design for the crossing.
This section recognizes that fact and therefore establishes a duty to
assist in this area.
Sec. 234.303 Selection and installation of warning systems at public
crossings.
Paragraph (a) of this section prohibits a railroad from
unilaterally selecting or determining the type of grade crossing
warning system to be installed at a public highway-rail grade crossing.
Such a decision is more appropriately made by the state or local
government. In some situations today, a railroad voluntarily
contributes to the cost of installing a crossing warning system. In
some cases, a railroad has voluntarily contributed all or part of a
locality's required local share in order to enable a particular
crossing to be improved with federal funds. The proposed rule is not
meant to alter this practice of voluntary railroad involvement.
Similarly, this rule is not meant to affect those situations in which a
railroad improves a crossing at its own expense in order to secure the
closure of another crossing. These railroad practices, unlike funding
of projects outside of the state planning process, are supportive and
consistent with the prioritization and planning process. Therefore,
nothing in the proposal prevents a railroad from voluntarily
contributing to the installation costs of warning devices installed
pursuant to the state planning process.
Paragraph (b) addresses installation of the warning system after
the specific grade crossing and type of warning system has been
selected. This paragraph provides that a railroad shall only install or
upgrade a grade crossing warning system at a public highway-rail grade
crossing pursuant to an order by, or agreement with, a state agency or
other public body having authority to issue such order or enter into
such agreements. The proposal provides that whenever such state agency
or other public body determines that a particular grade crossing
warning system should be installed at a particular highway-rail grade
crossing, the railroad shall comply with any legally sufficient order,
or in the case of federally funded grade crossing projects, enter into
and perform an agreement for the installation or upgrade of that grade
crossing warning system with the state agency or other public body
having jurisdiction. The rule does not require a railroad to provide
the non-federal share of costs involved in federally-funded grade
crossing improvement projects.
This section recognizes that since the warning system is, in many
instances, tied into the railroad's track circuits and the railroad
will maintain the system, the railroad is generally the most
appropriate party to physically install the system. Under the present
Federal-aid system, railroads are reimbursed for procurement and
installation costs of the warning system. This paragraph recognizes the
benefits of this process and only prohibits railroads from unilaterally
installing grade crossing warning systems without state or local
approval.
This section is not meant to prohibit a railroad's voluntarily
contribution to the costs of installation of a highway-rail grade
crossing warning system. [[Page 11653]] Railroads have voluntarily
contributed all or a portion of the non-Federal matching share required
under Federal law for construction of grade crossing warning systems.
FRA does not intend to prevent or discourage such contributions.
While FRA believes that railroads have many powerful incentives to
continue their longstanding policy of voluntarily providing matching
funds for federally funded grade crossing projects, comment is sought
concerning whether this proposal will affect the level of railroad
participation in such projects.
Paragraph (c) addresses railroad projects in which warning system
improvements are only incidental to the railroad project. Some railroad
projects, such as new track, upgraded track, or the installation of
signal systems, may involve upgrading warning system circuits or the
replacement of obsolete equipment with newer, more technologically
advanced equipment. This rule is not intended to prohibit railroad's
present practice of incidental upgrades.
Regulatory Impact
E.O. 12866 and DOT Regulatory Policies and Procedures
This proposed rule has been evaluated in accordance with existing
policies and procedures, and is considered to be significant under DOT
policies and procedures (44 FR 11034, February 26, 1979). This
regulatory document was subject to review under E.O. 12866. FRA has
prepared and placed in the rulemaking docket a regulatory evaluation
addressing the economic impact of this rule. A copy of the regulatory
evaluation may be inspected and copied in Room 8201, 400 Seventh
Street, S.W., Washington, D.C., 20590.
In its regulatory analysis FRA posited that the costs and benefits
of this proposed rule are not measurable at present, but that the
benefits will equal or exceed the costs, because the function of the
rule is to virtually eliminate grade crossing selections and
installations which do not require an analysis which considers costs
and benefits.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of rules to assess their impact on small entities. In
reviewing the economic impact of the proposed rule, FRA has concluded
that it will have a minimal economic impact on small entities. There is
no direct or indirect economic impact on small units of government,
businesses, or other organizations. Therefore, it is certified that
this rule will not have a significant economic impact on a substantial
number of small entities under the provisions of the Regulatory
Flexibility Act.
Paperwork Reduction Act
The proposed rule contains information collection requirements. FRA
is submitting these information collection requirements to the Office
of Management and Budget for approval under the Paperwork Reduction Act
of 1980 (44 U.S.C. 3501 et seq.). The proposed section that contains
information collection requirements is Sec. 234.301. Persons desiring
to comment on this topic should submit their views in writing to FRA
(Ms. Gloria Swanson, RRS-21, Federal Railroad Administration, 400
Seventh Street, S.W., Washington, D.C. 20590) and to the Office of
Management and Budget (Desk Officer, Regulatory Policy Branch (OMB No.
2130-AA92), Office and Management and Budget, New Executive Office
Building, 726 Jackson Place, N.W., Washington, D.C. 20530. Copies of
any such comments should also be submitted to the Docket Clerk, Office
of Chief Counsel, FRA, 400 Seventh Street, S.W., Washington, D.C.
20590.
Environmental Impact
FRA has evaluated these proposed regulations in accordance with its
procedure for ensuring full consideration of the potential
environmental impacts of FRA actions, as required by the National
Environmental Policy Act and related directives. This notice meets the
criteria that establish this as a non-major action for environmental
purposes.
Federalism Implications
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the proposed rule has sufficient federalism implications to
warrant the preparation of a Federalism Assessment. A copy of the
Federalism Assessment has been placed in the public docket and is
available for inspection.
List of Subjects in 49 CFR Part 234
Railroad safety, Highway-rail grade crossings.
The Proposed Rule
In consideration of the foregoing, FRA proposes to amend Part 234,
Title 49, Code of Federal Regulations as follows:
PART 234--[AMENDED]
1. The authority citation for Part 234 continues to read as
follows:
Authority: 49 U.S.C. 20103, 20106, 20107, 20111, 20112, 20134,
21301, 21304, and 21311 (formerly Secs. 202, 208, and 209 of the
Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 431, 434,
437, and 438, as amended)); 49 U.S.C. 20901 and 20102 (formerly the
Accident Reports Act (45 U.S.C. 38 and 42); and 49 CFR 1.49 (f),
(g), and (m).
2. Add a new ``Subpart E--Selection and Installation of Grade
Crossing Warning Systems,'' to read as follows:
Subpart E--Selection and Installation of Grade Crossing Warning
Systems
Sec.
234.301 Railroad cooperation.
234.303 Selection and installation of grade crossing warning
systems.
Sec. 234.301 Railroad Cooperation.
(a) Railroads shall cooperate with the appropriate state agency in
furnishing information to enable the state agency to develop plans and
project priorities for the elimination of hazards of highway-rail grade
crossings including, but not limited to grade crossing elimination,
reconstruction of existing grade separations, and grade crossing
improvements. At the request of the appropriate state agency, a
railroad shall provide information not already provided to the FRA or
the state for inclusion in the DOT/Association of American Railroads
National Highway-Rail Grade Crossing Inventory regarding railroad
operations involving specific highway-rail grade crossings, including,
but not limited to: present and projected rail freight traffic
(including transportation of hazardous materials); present and
projected passenger traffic; present and projected track configuration
and signalling; present and projected maximum authorized train speed;
and other conditions which may affect the planning for, and
prioritization of, crossing improvements. Nothing herein requires that
a railroad provide to a state proprietary data of a confidential nature
unless such information shall be protected from disclosure.
(b) Railroads shall provide appropriate engineering and other
technical assistance to the state agency in designing and installing
the warning system determined by the state to be appropriate to the
particular crossing.
Sec. 234.303 Selection and installation of grade crossing warning
systems.
(a) A railroad shall not unilaterally select or determine the type
of grade crossing warning system to be installed at a public highway-
rail grade crossing. [[Page 11654]]
(b) Subject to paragraph (c), a railroad shall only install or
upgrade a grade crossing warning system at a public highway-rail grade
crossing pursuant to an order by, or agreement with, a state agency or
other public body having authority to issue such order or enter into
such agreements. Whenever such state agency or other public body
determines that a particular grade crossing warning system should be
installed at a particular highway-rail grade crossing, the railroad
shall comply with any legally sufficient order, or in the case of
federally funded grade crossing projects, enter into and perform an
agreement for the installation or upgrade of that grade crossing
warning system with the state agency or other public body having
jurisdiction. Nothing herein shall require a railroad to provide the
non-federal share of costs involved in federally-funded grade crossing
improvement projects.
(c) A railroad is permitted to upgrade, at its own expense,
components of a public highway-rail grade crossing warning system when
such upgrade is incidental to a railroad improvement project relating
to track, structures or train control systems.
3. Amend Appendix A by inserting in numerical order new entries to
read as follows:
Appendix A to Part 234.--Schedule of Civil Penalties
------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------
* * * * *
234.301 Railroad cooperation...................... $5,000 $7,500
Sec. 234.303 Selection and installation of grade
crossing warning systems......................... 5,000 7,500
* * * * *
------------------------------------------------------------------------
Issued in Washington, D.C. on February 24, 1995.
Jolene M. Molitoris,
Administrator.
[FR Doc. 95-5100 Filed 3-1-95; 8:45 am]
BILLING CODE 4910-06-P
