45336 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 

Contingency Plan (NCP). EPA and the 

State of New Jersey, through the 

Department of Environmental 

Protection, have determined that all 

appropriate response actions under 

CERCLA have been completed. 

However, this deletion does not 

preclude future actions under 

Superfund. 

DATES: Effective Date: This action is 

effective October 2, 2009. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–SFUND–2009–0175 All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in the 

hard copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the site information repositories. 

Locations, contacts, phone numbers and 

viewing hours are: 

U.S. Environmental Protection 

Agency—Region 2, Superfund 

Records Center, 290 Broadway, 18th 

Floor, New York, NY 10007–1866, 

Phone: 212–637–4308, Hours: 

Monday to Friday 9 a.m. to 5 p.m. 

Montclair Public Library Reference 

Department, 50 South Fullerton 

Avenue, Montclair, New Jersey 07042, 

Phone 973–744–0500, Hours: Monday 

to Thursday 10 a.m. to 9 p.m.; Friday 

& Saturday 10 a.m. to 5 p.m.; and 

Sunday 1 p.m. to 5 p.m. 

The Township of West Orange Health 

Department, 66 Main Street, Room 

203, West Orange, New Jersey 07052, 

Phone 973–325–4120, Hours: Monday 

to Friday 8:30 a.m. to 4:30 p.m. 

Glen Ridge Public Library Reference 

Department, 240 Ridgewood Avenue, 

Glen Ridge, New Jersey 07028, Phone 

973–748–5482, Hours: Monday 9 a.m. 

to 8 p.m.; Tuesday 9 a.m. to 5 p.m.; 

Wednesday 9 a.m. to 8 p.m.; and 

Thursday, Friday, Saturday 9 a.m. to 

5 p.m. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Betsy Donovan, Remedial Project 

Manager, by mail: Emergency and 

Remedial Response Division, U.S. 

Environmental Protection Agency— 

Region 2, 290 Broadway, 19th Floor, 

New York, NY 10007–1866; (or) 

telephone (212) 637–4369; (or) fax (212) 

637–4439; (or) e-mail 

donovan.betsy@epa.gov. 

SUPPLEMENTARY INFORMATION: The sites 

to be deleted from the NPL are the 

Montclair/West Orange and Glen Ridge 

Radium Superfund Sites located in 

Montclair, West Orange, Glen Ridge, 

Bloomfield and East Orange, New 

Jersey. A Notice of Intent to Delete these 

sites was published in the Federal 

Register on April 29, 2009. The closing 

date for comments on the Notice of 

Intent to Delete was May 29, 2009. No 

public comments were received and 

therefore EPA has no information which 

leads it to believe that the deletion 

action is inappropriate. 

EPA maintains the NPL as the list of 

sites that appear to present a significant 

risk to public health, welfare, or the 

environment. Deletion from the NPL 

does not preclude further remedial 

action. Whenever there is a significant 

release from a site deleted from the NPL, 

the deleted site may be restored to the 

NPL without application of the hazard 

ranking system. Deletion of a site from 

the NPL does not affect responsible 

party liability, in the unlikely event that 

future conditions warrant further 

actions. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

waste, Hazardous substances, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Dated: August 4, 2009. 

George Pavlou, 

Acting Regional Administrator, Region 2. 

■ For reasons set out in the preamble, 40 

CFR part 300 is amended as follows: 

PART 300—[AMENDED] 

■ 1. The authority citation for part 300 

continues to read as follows: 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 

3 CFR, 1987 Comp., p. 193. 

Appendix B—[Amended] 

■ 2. Table 1 of Appendix B to part 300 

is amended by removing the sites under 

New Jersey for ‘‘Glen Ridge Radium 

Site, Glen Ridge’’, and ‘‘Montclair/West 

Orange Radium Site, Montclair/W 

Orange.’’ 

[FR Doc. E9–21193 Filed 9–1–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 234 

[Docket No. FRA–2009–0032; Notice No. 1] 

RIN 2130–AC05 

State Highway-Rail Grade Crossing 

Action Plans 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Direct final rule. 

SUMMARY: This direct final rule complies 

with a statutory mandate that the 

Secretary of Transportation (Secretary) 

issue a rule to require 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. This rule is not intended for 

general application; instead, it only 

applies to the ten identified States with 

the most highway-rail grade crossing 

collisions. This rule addresses the 

contents of the highway-rail grade 

crossing action plans and certain time 

periods for plan implementation and 

coverage. Interested parties may submit 

written comments or may request an 

oral hearing on this rulemaking during 

the thirty (30) day period following 

publication of this rule. 

DATES: Effective Date: Unless FRA 

receives a written adverse comment or 

a request for an oral hearing on this 

direct final rule within the specified 

comment period, the effective date will 

be November 2, 2009. 

Written Comments: Comments or a 

request for an oral hearing must be 

received by October 2, 2009. 

ADDRESSES: Comments: Comments 

related to Docket Number FRA–2009– 

0032, may be submitted by any of the 

following methods: 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Ave., SE., W12–140, 

Washington, DC 20590. 

• Hand Delivery: 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. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 


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Number (RIN) for this rulemaking. Note 

that all comments received will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information. Please see the 

Privacy Act heading later in this 

document for more Privacy Act 

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 202– 

493–6299), or Zeb Schorr, Trial 

Attorney, Office of Chief Counsel, FRA, 

1200 New Jersey Ave., SE., Mail Stop 

10, Washington, DC 20590 (Telephone 

202–493–6072). 

SUPPLEMENTARY INFORMATION: 

Background 

This direct final rule is intended to 

reduce collisions at highway-rail grade 

crossings in the ten identified States, 

and to comply with section 202 of the 

Rail Safety Improvement Act of 2008 

(RSIA), Public Law 110–432, Division 

A, which was signed into law on 

October 16, 2008. Section 202 requires 

the Secretary (delegated to the Federal 

Railroad Administrator by 49 CFR 1.49) 

to identify the ten States that have had 

the most highway-rail grade crossing 

collisions, on average, over the past 

three years, and to require those States 

to develop State highway-rail grade 

crossing action plans, within a 

reasonable period of time, as 

determined by the Secretary. Section 

202 further provides that these plans 

must identify specific solutions for 

improving safety at crossings, including 

highway-rail grade crossing closures or 

grade separations, and must focus on 

crossings that have experienced 

multiple accidents or are at high risk for 

such accidents. FRA recommends that 

the action plans include a proposed 

implementation schedule, although FRA 

recognizes that any such schedule 

would be subject to many factors, 

including the availability of funds and 

personnel. In addition, any 

implementation schedule would only be 

for the purpose of providing quality 

planning for the timelines identified. 

Section 202 also provides the 

following: the Secretary will provide 

assistance to the States in developing 

and carrying out such plans, as 

appropriate; the plans may be 

coordinated with other State or Federal 

planning requirements; the plans will 

cover a period of time determined to be 

appropriate by the Secretary; and the 

Secretary may condition the awarding of 

any grants under 49 U.S.C. 20158, 

20167, or 22501, to a State identified 

under this section, on the development 

of such State’s plan. 

Lastly, section 202 provides a review 

and approval process under which, not 

later than 60 days after the Secretary 

receives such a State action plan, the 

Secretary must review and either 

approve or disapprove it. In the event 

that the proposed plan is disapproved, 

section 202 indicates that the Secretary 

shall notify the affected State as to the 

specific areas in which the proposed 

plan is deficient, and the State shall 

correct all deficiencies within 30 days 

following receipt of written notice from 

the Secretary. 

State Identification 

As discussed, Congress expressly 

directed the Secretary to identify the ten 

States that have had the most highwayrail grade crossing collisions, on 

average, over the past three years. FRA 

maintains a database of highway-rail 

grade crossing accidents/incidents 

occurring at public and private grade 

crossings, as such events must be 

reported to FRA pursuant to 49 CFR 

225.19. From this database, FRA will 

identify the ten States with the most 

reported highway-rail grade crossing 

accidents/incidents at public and 

private grade crossings during 2006, 

2007, and 2008. FRA will notify the 

identified States prior to the effective 

date of this rule. A copy of the 

notification will be placed in the public 

docket of this proceeding. 

Time Period To Develop State Action 

Plan and Duration of Plan 

Section 202 instructs the Secretary to 

determine the reasonable period of time 

within which the ten identified States 

must develop a State highway-rail grade 

crossing action plan and the period of 

time to be covered by such a plan. Based 

on previous experience working with 

States on highway-rail grade crossing 

action plans, FRA has determined that 

States can reasonably develop such 

plans within one year from the date this 

regulation goes into effect, and that such 

plans should cover a period of five 

years. A five-year period is appropriate 

because many of the remedial actions 

that may be included in these plans 

(e.g., closures and grade separations) 

may take up to five years to implement. 

In addition, any identified State that has 

already developed an action plan in 

conjunction with a recommendation 

from DOT’s Office of Inspector General 

must ensure compliance with this direct 

final rule and resubmit the plan as 

required by this rule. 

Assistance and Coordination 

FRA will be available, including FRA 

regional grade crossing managers and 

FRA experts from the grade crossing and 

trespasser prevention division, to 

provide assistance to States in 

developing and carrying out, as 

appropriate, the State highway-rail 

grade crossing action plans. FRA’s 

Safetydata Web site (http:// 

www.safetydata.fra.dot.gov) also 

contains detailed data that may be of 

use in the development of the plans. In 

addition, the State highway-rail grade 

crossing action plans may be 

coordinated with other State or Federal 

planning requirements. For example, 

States may want to coordinate such 

plans with their Strategic Highway 

Safety Plans that are required by 

SAFETEA–LU, as appropriate. 

Conditioning the Awarding of Grants 

Section 202 also empowers the 

Secretary to condition the awarding of 

any grants under 49 U.S.C. 20158, 

20167, or 22501, to an identified State 

under this section on the development 

of such State’s plan. Although FRA does 

not anticipate employing this authority, 

FRA reserves its right to pursue such a 

course of action in the event that an 

identified State fails to comply with this 

direct final rule. 

Section-by-Section Analysis 

Section 234.1. This paragraph 

discusses the scope of this part. An 

amendment is made to this paragraph to 

include reference to § 234.11, State 

Highway-Rail Grade Crossing Action 

Plans, as being within this part’s scope. 

Section 234.3. This paragraph 

discusses what entities are subject to 

this part. An amendment is made to this 

paragraph excepting § 234.11, State 

Highway-Rail Grade Crossing Action 

Plans, from discussion in this section. 

Section 234.4. This paragraph 

discusses the preemptive effect of this 

part. An amendment is made to this 

paragraph permitting State tort actions, 

arising from events or activities 

occurring on or after January 18, 2002, 

that: Allege a violation of the Federal 

standard of care established by this part; 

allege a failure to comply with a party’s 

own plan, rule, or standard created 

pursuant to this part; or allege a 

violation of a State law, regulation, or 

order that is necessary to eliminate or 

reduce an essentially local safety or 

security hazard, is not incompatible 


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with a law, regulation, or order of the 

United States Government, and does not 

unreasonably burden interstate 

commerce. 

Section 234.6(a) and (b). These 

paragraphs discuss the civil and 

criminal penalties a person may be 

subject to when violating requirements 

of this part. An amendment is made to 

these paragraphs providing that a 

violation of § 234.11, State HighwayRail Grade Crossing Action Plans, will 

not give rise to either a civil or criminal 

penalty. 

Section 234.11(a). This paragraph 

discusses that the purpose of this direct 

final rule is to reduce collisions at 

highway-rail grade crossings in the ten 

identified States that have had the most 

highway-rail grade crossing collisions, 

on average, over the past three years. 

This paragraph makes clear that the 

regulation does not restrict any other 

State, or other entity, from adopting a 

highway-rail grade crossing action plan, 

nor does it restrict any of the identified 

States from adopting a plan with 

additional or more stringent 

requirements not inconsistent with this 

regulation. 

Section 234.11(b). This paragraph 

indicates that this section applies to the 

ten States that have had the most 

highway-rail grade crossing collisions, 

on average, during the calendar years 

2006, 2007, and 2008, and that FRA will 

notify these ten States prior to the 

effective date of this direct final rule. 

Section 234.11(c). This paragraph 

requires the ten identified States to 

develop a State highway-rail grade 

crossing action plan and to submit such 

plans to FRA for review and approval 

not later than one year after the date this 

regulation goes into effect. This 

paragraph also details the requirements 

of the State highway-rail grade crossing 

action plans, including that the plans: 

Identify specific solutions for improving 

safety at crossings, including highwayrail grade crossing closures or grade 

separations; focus on crossings that have 

experienced multiple accidents or are at 

high risk for such accidents; and cover 

a five-year period. 

Section 234.11(d). This paragraph 

identifies the FRA contact information 

to which the identified States must 

direct the highway-rail grade crossing 

action plans for review and approval. 

This paragraph also provides that FRA 

will review and approve or disapprove 

a State highway-rail grade crossing 

action plan within 60 days of receiving 

the plan. This paragraph further states 

that, if the proposed State highway-rail 

grade crossing action plan is 

disapproved, FRA will notify the 

affected State as to the specific areas in 

which the proposed plan is deficient, 

and the State must correct all 

deficiencies within 30 days following 

receipt of written notice from FRA. 

Lastly, this paragraph provides that FRA 

may condition the awarding of any 

grants under 49 U.S.C. 20158, 20167, or 

22501 to an identified State on the 

development of that State’s highway-rail 

grade crossing action plan. 

Notice-and-Comment Procedures 

FRA has determined that this 

regulation is non-controversial as it 

complies with a statutory mandate that 

the Secretary issue a rule to require 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. While FRA does not anticipate 

any adverse comment, interested parties 

may submit written comments or 

request an oral hearing during the thirty 

(30) day period immediately following 

publication of this direct final rule. 

Regulatory Impact 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This discussion represents the 

regulatory impact analysis (RIA). There 

is not a separate RIA for inclusion in the 

public docket. This direct final rule has 

been evaluated in accordance with 

Executive Order 12866 and DOT 

policies and procedures. The ten States 

identified will incur the full burden 

associated with implementation of this 

direct final rule. The estimated 

quantified compliance cost for these ten 

States is approximately $271,000 over 

the next year. The benefits resulting 

from the prevention of collisions at 

highway-rail grade crossings are 

expected to exceed the burden and thus 

fully justify issuance of this rule. This 

analysis includes a quantitative burden 

measurement and a qualitative benefit 

discussion for this direct final rule. 

The primary burden imposed will be 

for State labor resources spent to 

comply with development of the 

mandated action plans. FRA estimates 

that, on the average, each State will 

assign the plan development 

responsibilities to a team composed of 

a program manager, a project engineer, 

a budget analyst, a business specialist, 

and a legal expert. Listed in Table A are 

the aggregate salary estimates and manyear allocations for the entire mandated 

population. 

TABLE A—AGGREGATED PLAN SUBMISSION

Position Salary Hourly rate Labor hours Estimate 

Program Manager, Transportation .................................................................. $88,000.00 $42.31 40 $2,961.54

Project Engineer .............................................................................................. 72,000.00 34.62 80 4,846.15 

Budget Analyst ................................................................................................. 55,000.00 26.44 40 1,850.96 

Business Specialist, Transportation ................................................................. 45,000.00 21.63 400 15,144.23 

Legal Expert ..................................................................................................... 69,000.00 33.17 40 2,322.12 

........................ ........................ ........................ 27,125.00 

The estimated cost is found as the 

product of the hourly rate, the labor 

hours, and an estimated overhead rate. 

Overhead is considered at 75% of the 

hourly rate. Example Calculation: 

[($42.31 per hour) * (40 hours) * (1 + .75 

(overhead rate))] = $2,961.54. 

The submission process calls for FRA 

to review and approve each submitted 

plan according to the Federal mandate. 

FRA anticipates that the review time for 

each of the initial submissions to be 6 

hours per plan. Listed in Table B is the 

aggregated Federal burden for the initial 

and resubmitted plans. 


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TABLE B—FEDERAL COMPLIANCE SUMMARY

Tasking States Labor hours Rate Estimate 

Plan Submission Review ............................................................................................. 10 6 $52.50 $5,512.50 

.................... .................... .................... 5,512.50 

To summarize quantitatively, the 

State burden imposed from this rule was 

derived from the estimated sum of the 

original burden submission from the ten 

identified States and the burden 

resubmission from the quantum that did 

not comply during the initial 

resubmission. FRA considers $271,000 

to represent the aggregated State burden 

for the one year period of this 

requirement. Listed in Table C is the 

aggregated burden summary. 

TABLE C—AGGREGATED BURDEN SUMMARY

Estimate Quantity Total 

estimates 

State Submission Burden ............................................................................................................ $27,125.00 10 $271,250.00 

........................ ........................ 271,250.00 

The development of State highwayrail grade crossing action plans should 

result in a reduction in highway-rail 

grade crossing safety collisions. 

Development of such plans will 

enhance these States’ ability to view 

their population of grade crossings, 

interpret historical accident 

information, evaluate the overall state of 

highway-rail grade crossing safety, and 

identify particular areas in need of 

attention. Any patterns of collisions or 

causal factors will become more readily 

apparent as a result of the detailed 

study, assessment, and status reporting 

involved in the development of the 

State action plan. In these plans, each 

State will identify specific solutions for 

improving safety at individual 

crossings, including crossing closures or 

grade separations, with special focus on 

those crossings that are found to have 

experienced multiple accidents or that 

show a heightened risk for accidents. 

Special emphasis corridors of high risk 

corridors may also be identified as a 

result of the analysis component of the 

State action plan. As each State’s 

highway-rail grade crossing action plan 

may be coordinated with other State or 

Federal planning requirements, 

additional benefits may be obtained 

through closer integration of grade 

crossing safety issues into the overall 

State transportation safety planning 

efforts. 

During the three-year time period, 

2006 through 2008, the ten States with 

the most grade crossing collisions, as 

currently reported, accounted for 51%, 

or almost 4,200 accidents, of all grade 

crossing collisions nationwide. Highway 

vehicle damage accounted for more than 

$28.5 million over this three-year time 

period, and a combined total of 546 

lives were lost. Economic research 

indicates that $6.0 million per statistical 

life saved is a reasonable estimate of 

people’s willingness to pay for 

transportation safety improvements. 

FRA therefore estimates an accumulated 

$3.28 billion to represent the statistical 

value of the lives lost as a result of grade 

crossing collisions in these ten States. 

Finally, there were 1,666 injuries over 

the three-year time period in these ten 

States. Assuming very conservatively, 

for purposes of this analysis, that these 

were all minor in nature (e.g., injuries 

that may not require professional 

medical treatment and where recovery 

is usually rapid and complete) and thus 

assigning a cost of $12,000 per injury 

(i.e., 0.2% of the value of a statistical 

life), injury costs for this period totaled 

close to $20 million. Thus, the cost to 

society of the average incident in the 

three-year time period was $792,000. 

Prevention of one such incident alone 

would more than exceed the cost of 

implementing this rule. FRA believes 

that it is reasonable to expect that such 

an incident may be prevented by 

implementing this rule. In addition to 

the safety benefits, other potential 

benefits would include: Increased train 

and highway traffic mobility by not 

having collisions, fewer demands on 

emergency services by not having to 

respond to crossing collisions, and some 

improvement in air quality by reducing 

emissions from vehicles that are unable 

to move due to crossing collisions. 

The findings of this analysis are 

sensitive to its assumptions. The burden 

estimates are largely driven by the 

composition of the team and the level of 

effort expended by each individual. 

Such factors may vary from team to 

team. FRA realizes that the level of 

expertise per state, per team, per 

member, will vary and, therefore, has 

applied a 20 percent sensitivity factor 

above and below the baseline as follows: 

TABLE D—AGGREGATED SENSITIVITY ANALYSIS SUMMARY

Estimate Low High 

Aggregated Submission Burden .................................................................................................. $271,250.00 $217,000.00 $325,500.00 

Thus, when defining the projected 

cost burden to the individual States 

within the framework of team 

complexion and with regard to the 

estimated sensitivity of the individual 

expertise of the employee selected, FRA 

finds that it is reasonable to estimate 

that the burden could range from 

$22,000 to $33,000 per State. FRA finds 

that the total cost burden ranges from 

$217,000 to $326,000. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires a review 


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45340 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 

of proposed and final rules to assess 

their impact on small entities, unless 

the Secretary certifies that the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. Pursuant to section 312 of the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

FRA has issued a final policy that 

formally establishes ‘‘small entities’’ as 

including railroads that meet the linehaulage revenue requirements of a Class 

III railroad. 49 CFR part 209, app. C. For 

other entities, the same dollar limit in 

revenues governs whether a railroad, 

contractor, or other respondent is a 

small entity. Id. Additionally, section 

601(5) defines as ‘‘small entities’’ 

governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts with populations less 

than 50,000. Such governments would 

not be directly impacted by this direct 

final rule. 

FRA certifies that this direct final rule 

will not have a significant economic 

impact on a substantial number of small 

entities, as this rule only affects ten 

identified States. To the extent that this 

rule has any impact on small entities, 

the impact will not be significant. 

Paperwork Reduction Act 

The information collection 

requirements in this direct final rule 

have been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. The 

section that contains the new 

information collection requirements is 

noted below, and the estimated burden 

times to fulfill each requirement are as 

follows: 

CFR section Respondent 

universe 

Total annual 

responses 

Average time 

per response 

Total annual 

burden hours 

234.11—State Highway-Rail Grade Crossing Action Plans—Development and 

Submission of Plans.

10 States ..... 10 plans ...... 600 hours .... 6,000 hours. 

—Disapproval of State Highway-Rail Grade Crossing Action Plan and Submission 

of Revised Plan.

10 States ..... 5 revised 

plans.

80 hours ...... 400 hours. 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to the Office of 

Management and Budget, Office of 

Information and Regulatory Affairs, 

Washington, DC 20503, Attention: FRA 

Desk Officer. Comments may also be 

sent via e-mail to the Office of 

Management and Budget at the 

following address: 

oira_submissions@omb.eop.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this direct 

final 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 cannot impose a penalty on 

persons for violating information 

collection requirements which do not 

display a current OMB control number, 

if required. FRA intends to obtain 

current OMB control numbers for any 

new information collection 

requirements resulting from this 

rulemaking action prior to the effective 

date of this direct final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

Environmental Impact 

FRA has evaluated this direct final 

rule in accordance with its ‘‘Procedures 

for Considering Environmental Impacts’’ 

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this document is not a 

major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

64 FR 28545, 28547, May 26, 1999. In 

accordance with section 4(c) and (e) of 

FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

direct final rule that might trigger the 

need for a more detailed environmental 

review. As a result, FRA finds that this 

direct final rule is not a major Federal 

action significantly affecting the quality 

of the human environment. 

Federalism Implications 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 4, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or the agency consults 

with State and local government 

officials 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. 

This direct final rule amends FRA’s 

regulations regarding grade crossing 

safety. Subject to a limited exception for 

essentially local safety or security 

hazards, the requirements of FRA’s 

regulations regarding grade crossing 

safety are intended to establish a 

uniform Federal safety standard that 

must be met, and State requirements 

covering the same subject would be 

displaced, whether those standards are 

in the form of State statutes, regulations, 

local ordinances, or other forms of State 

law, including common law. Section 

20106 of Title 49 of the United States 

Code provides that all regulations 

prescribed by the Secretary related to 

railroad safety preempt any State law, 

regulation, or order covering the same 

subject matter, except a provision 

necessary to eliminate or reduce an 

essentially local safety or security 

hazard that is not incompatible with a 

Federal law, regulation, or order, and 

that does not unreasonably burden 

interstate commerce. This is consistent 

with past practice at FRA, and within 

the Department of Transportation. 


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FRA has analyzed this direct final 

rule in accordance with the principles 

and criteria contained in Executive 

Order 13132. This direct final rule 

complies with a statutory mandate. FRA 

has not consulted with State and local 

officials in regards to this rule. 

However, prior to enactment of the 

RSIA, FRA did consult with State 

officials in conjunction with a 

recommendation from DOT’s Office of 

Inspector General that certain States 

develop highway-rail grade crossing 

action plans, similar to the plans 

required by the RSIA and this rule. 

Thus, FRA believes it is in compliance 

with Executive Order 13132. 

This direct final rule will not have a 

substantial effect 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, this 

direct final rule will not have any 

federalism implications that impose 

substantial direct compliance costs on 

State and local governments. 

FRA’s regulations regarding grade 

crossing safety do not preempt actions 

under State law seeking damages for 

personal injury, death, or property 

damage alleging that a party has failed 

to comply with the Federal standard of 

care established by this part. Provisions 

of a railroad maintenance, inspection 

and testing program which exceed the 

requirements of this part are not 

included in the Federal standard of care. 

It is strongly in the interest of railroad 

safety for railroads to exceed the 

requirements of Federal law and FRA 

encourages railroads to do so. A railroad 

would be discouraged from setting a 

higher standard for itself if it would be 

held liable in tort for exceeding the 

requirements of Federal law, but failing 

to attain the higher standard set for 

itself. Section 20106 of Title 49 of the 

United States Code supports this 

distinction. 

It is a settled principle of statutory 

construction that, if the statute is clear 

and unambiguous, it must be applied 

according to its terms. Carcieri v. 

Salazar, 555 U.S.—(2009). Read by 

itself, Section 20106(a) of Title 49 of the 

United States Code preempts state 

standards of care, but does not expressly 

state whether anything replaces the 

preempted standards of care for 

purposes of tort suits. The focus of that 

provision is clearly on who regulates 

railroad safety: the Federal government 

or the states. It is about improving 

railroad safety, for which Congress 

deems nationally uniform standards to 

be necessary in the great majority of 

cases. That purpose has collateral 

consequences for tort law which new 

Section 20106 subsections (b) and (c) 

address. New subsection (b)(1) creates 

three exceptions to the possible 

consequences flowing from subsection 

(a). One of those exceptions ((b)(1)(B)) 

precisely addresses an issue presented 

in Lundeen v. Canadian Pacific Ry. Co., 

507 F. Supp. 2d 1006 (D.Minn., 2007) 

that Congress wished to rectify: it allows 

plaintiffs to sue a railroad in tort for 

violation of its own plan, rule, or 

standard that it created pursuant to a 

regulation or order issued by either of 

the Secretaries. None of those 

exceptions covers a plan, rule, or 

standard that a regulated entity creates 

for itself in order to produce a higher 

level of safety than Federal law requires, 

and such plans, rules, or standards were 

not at issue in Lundeen. The key 

concept of section 20106(b) is 

permitting actions under State law 

seeking damages for personal injury, 

death, or property damage to proceed 

using a Federal standard of care. A plan, 

rule, or standard that a regulated entity 

creates pursuant to a Federal regulation 

logically fits the paradigm of a Federal 

standard of care—Federal law requires it 

and determines its adequacy. A plan, 

rule, or standard, or portions of one, that 

a regulated entity creates on its own in 

order to exceed the requirements of 

Federal law does not fit the paradigm of 

a Federal standard of care—Federal law 

does not require it and, past the point 

at which the requirements of Federal 

law are satisfied, says nothing about its 

adequacy. That is why FRA believes 

section 20106(b)(1)(B) covers the former, 

but not the latter. The basic purpose of 

the statute—improving railroad safety— 

is best served by encouraging regulated 

entities to do more than the law requires 

and would be disserved by increasing 

the potential tort liability of regulated 

entities that choose to exceed federal 

standards, which would discourage 

them from ever exceeding federal 

standards again. 

In this manner, Congress adroitly 

preserved its policy of national 

uniformity of railroad safety regulation 

expressed in Section 20106(a)(1) and 

assured plaintiffs in tort cases involving 

railroads, such as Lundeen, of their 

ability to pursue their cases by 

clarifying that federal railroad safety 

regulations preempt the standard of 

care, not the underlying causes of action 

in tort. Under this interpretation, all 

parts of the statute are given meanings 

that work together effectively and serve 

the safety purposes of the statute. 

Unfunded Mandates Reform Act of 1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$141,300,000 or more 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 direct final rule will not 

result in the expenditure, in the 

aggregate, of $141,300,000 or more in 

any one year, and thus preparation of 

such a statement is not required. 

Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 66 FR 28355 (May 22, 

2001). Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking that: (1)(i) Is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this direct final rule in 

accordance with Executive Order 13211. 

FRA has determined that this direct 

final rule will not have a significant 

adverse effect on the supply, 

distribution, or use of energy. 

Consequently, FRA has determined that 

this regulatory action is not a 

‘‘significant energy action’’ within the 

meaning of Executive Order 13211. 

Privacy Act Information 

Interested parties should be aware 

that anyone is able to search the 

electronic form of all comments 

received into any agency docket by the 


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45342 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78), or you 

may visit http://www.regulations.gov. 

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 AND STATE 

ACTION PLANS 

■ 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; Public Law No. 110–432, 

Div. A, section 202; 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 also requires 

particular identified States to develop 

State highway-rail grade crossing action 

plans. This part does not restrict a 

railroad or a State 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. 

With the exception of § 234.11, 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. 

(a) Under 49 U.S.C. 20106, issuance of 

these regulations preempts any State 

law, regulation, or order covering the 

same subject matter, except an 

additional or more stringent law, 

regulation, or order that is necessary to 

eliminate or reduce an essentially local 

safety hazard; is not incompatible with 

a law, regulation, or order of the United 

States Government; and that does not 

impose an unreasonable burden on 

interstate commerce. 

(b) This part establishes a Federal 

standard of care for the maintenance, 

inspection and testing of grade crossing 

warning systems. This part does not 

preempt an action under State law 

seeking damages for personal injury, 

death, or property damage alleging that 

a party has failed to comply with the 

Federal standard of care established by 

this part. Provisions of a railroad 

maintenance, inspection and testing 

program which exceed the requirements 

of this part are not included in the 

Federal standard of care. 

■ 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, except for any 

violation of § 234.11, 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, except 

for any document filed pursuant to 

§ 234.11, 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)). 

■ 7. The heading for Subpart B is 

revised to read as follows: 

Subpart B—Reports and Plans 

■ 8. Subpart B of part 234 is amended 

by adding § 234.11 to read as follows: 

§ 234.11 State Highway-Rail Grade 

Crossing Action Plans. 

(a) Purpose. The purpose of this 

section is to reduce collisions at 

highway-rail grade crossings in the ten 

States that have had the most highwayrail grade crossing collisions, on 

average, during the calendar years 2006, 

2007, and 2008. This section does not 

restrict any other State, or other entity, 

from adopting a highway-rail grade 

crossing action plan. This section also 

does not restrict any of the States 

required to develop action plans under 

this section from adopting a highwayrail grade crossing action plan with 

additional or more stringent 

requirements not inconsistent with this 

section. 


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Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 45343 

(b) Application. This section applies 

to the ten States that have had the most 

highway-rail grade crossing collisions, 

on average, during the calendar years 

2006, 2007, and 2008. FRA will notify 

these ten States prior to November 2, 

2009. 

(c) Action Plans. (1) The ten identified 

States shall each develop a State 

highway-rail grade crossing action plan 

and submit such a plan to FRA for 

review and approval not later than 

November 2, 2010. 

(2) A State highway-rail grade 

crossing action plan shall: 

(i) Identify specific solutions for 

improving safety at crossings, including 

highway-rail grade crossing closures or 

grade separations; 

(ii) Focus on crossings that have 

experienced multiple accidents or are at 

high risk for such accidents; and 

(iii) Cover a five-year time period. 

(d) Review and Approval. (1) State 

highway-rail grade crossing action plans 

required under paragraph (c) of this 

section shall be submitted for FRA 

review and approval using at least one 

of the following methods: mail to the 

Associate Administrator for Railroad 

Safety/Chief Safety Officer, U.S. 

Department of Transportation, Federal 

Railroad Administration, 1200 New 

Jersey Ave., SE., W12–140, Washington, 

DC 20590; or e-mail to 

rrs.correspondence@fra.dot.gov. 

(2) FRA will review and approve or 

disapprove a State highway-rail grade 

crossing action plan submitted pursuant 

to paragraph (d) of this section within 

60 days of receipt. 

(3) If the proposed State highway-rail 

grade crossing action plan is 

disapproved, FRA will notify the 

affected State as to the specific areas in 

which the proposed plan is deficient. A 

State shall correct all deficiencies 

within 30 days following receipt of 

written notice from FRA. 

(4) FRA may condition the awarding 

of any grants under 49 U.S.C. 20158, 

20167, or 22501 to an identified State on 

the development of such State’s 

highway-rail grade crossing action plan. 

Issued in Washington, DC, on August 27, 

2009. 

Joseph C. Szabo, 

Administrator, Federal Railroad 

Administration. 

[FR Doc. E9–21089 Filed 9–1–09; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 20 

[FWS-R9-MB-2009-0124] 

[91200-1231-9BPP-L2] 

RIN 1018-AW31 

Migratory Bird Hunting; Migratory Bird 

Hunting Regulations on Certain 

Federal Indian Reservations and 

Ceded Lands for the 2009–10 Early 

Season 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: This rule prescribes special 

early season migratory bird hunting 

regulations for certain tribes on Federal 

Indian reservations, off-reservation trust 

lands, and ceded lands. This responds 

to tribal requests for U.S. Fish and 

Wildlife Service (hereinafter Service or 

we) recognition of their authority to 

regulate hunting under established 

guidelines. This rule allows the 

establishment of season bag limits and, 

thus, harvest at levels compatible with 

populations and habitat conditions. 

DATES: This rule takes effect on 

September 1, 2009. 

ADDRESSES: You may inspect comments 

received on the proposed special 

hunting regulations and tribal proposals 

during normal business hours in room 

4107, Arlington Square Building, 4501 

N. Fairfax Drive, Arlington, VA or at 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Ron 

W. Kokel, Division of Migratory Bird 

Management, U.S. Fish and Wildlife 

Service, (703/358-1967). 

SUPPLEMENTARY INFORMATION: The 

Migratory Bird Treaty Act (MBTA) of 

July 3, 1918 (40 Stat. 755; 16 U.S.C. 703 

et seq.), authorizes and directs the 

Secretary of the Department of the 

Interior, having due regard for the zones 

of temperature and for the distribution, 

abundance, economic value, breeding 

habits, and times and lines of flight of 

migratory game birds, to determine 

when, to what extent, and by what 

means such birds or any part, nest, or 

egg thereof may be taken, hunted, 

captured, killed, possessed, sold, 

purchased, shipped, carried, exported, 

or transported. 

In the August 11, 2009, Federal 

Register (74 FR 40138), we proposed 

special migratory bird hunting 

regulations for the 2009–10 hunting 

season for certain Indian tribes, under 

the guidelines described in the June 4, 

1985, Federal Register (50 FR 23467). 

The guidelines respond to tribal 

requests for Service recognition of their 

reserved hunting rights, and for some 

tribes, recognition of their authority to 

regulate hunting by both tribal members 

and nonmembers on their reservations. 

The guidelines include possibilities for: 

(1) On-reservation hunting by both 

tribal members and nonmembers, with 

hunting by nontribal members on some 

reservations to take place within Federal 

frameworks but on dates different from 

those selected by the surrounding 

State(s); 

(2) On-reservation hunting by tribal 

members only, outside of usual Federal 

frameworks for season dates and length, 

and for daily bag and possession limits; 

and 

(3) Off-reservation hunting by tribal 

members on ceded lands, outside of 

usual framework dates and season 

length, with some added flexibility in 

daily bag and possession limits. 

In all cases, the regulations 

established under the guidelines must 

be consistent with the March 10– 

September 1 closed season mandated by 

the 1916 Migratory Bird Treaty with 

Canada. 

In the April 10, 2009, Federal 

Register (74 FR 16339), we requested 

that tribes desiring special hunting 

regulations in the 2009–10 hunting 

season submit a proposal including 

details on: 

(a) Harvest anticipated under the 

requested regulations; 

(b) Methods that would be employed 

to measure or monitor harvest (such as 

bag checks, mail questionnaires, etc.); 

(c) Steps that would be taken to limit 

level of harvest, where it could be 

shown that failure to limit such harvest 

would adversely impact the migratory 

bird resource; and 

(d) Tribal capabilities to establish and 

enforce migratory bird hunting 

regulations. 

No action is required if a tribe wishes 

to observe the hunting regulations 

established by the State(s) in which an 

Indian reservation is located. We have 

successfully used the guidelines since 

the 1985–86 hunting season. We 

finalized the guidelines beginning with 

the 1988–89 hunting season (August 18, 

1988, Federal Register [53 FR 31612]). 

Although the proposed rule included 

generalized regulations for both earlyand late-season hunting, this 

rulemaking addresses only the earlyseason proposals. Late-season hunting 

will be addressed in late September. As 

a general rule, early seasons begin 

during September each year and have a 

primary emphasis on such species as 

mourning and white-winged doves. Late 


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