80648 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 

1Public Law 110–432. 

2 49 U.S.C. 11401. 

3RSIA, Sec. 202. 

4 75 FR 36551 (June 28, 2010) (codified at 49 CFR 

234.11). 5 49 U.S.C. 11401. 

Issued this 25th day of November, 2020, at 

Washington, DC, under authority delegated 

in 49 CFR 1.27(a). 

Steven G. Bradbury, 

General Counsel. 

[FR Doc. 2020–26549 Filed 12–11–20; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 234 

[Docket No. FRA–2018–0096, Notice No. 2] 

RIN 2130–AC72 

State Highway-Rail Grade Crossing 

Action Plans 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is issuing this final rule 

in response to the Fixing America’s 

Surface Transportation Act mandate 

that FRA issue a rule requiring 40 States 

and the District of Columbia to develop 

and implement highway-rail grade 

crossing action plans. This final rule 

also requires ten States that developed 

highway-rail grade crossing action plans 

as required by the Rail Safety 

Improvement Act of 2008 and FRA’s 

implementing regulation to update their 

plans and submit reports to FRA 

describing actions they have taken to 

implement them. 

DATES: This final rule is effective 

January 13, 2021. 

ADDRESSES: Docket: For access to the 

docket to read background documents 

or comments received, go to http://

www.regulations.gov and follow the 

online instructions for accessing the 

docket. 

FOR FURTHER INFORMATION CONTACT: 

James Payne, Staff Director, HighwayRail Crossing and Trespasser Programs 

Division (telephone: 202–493–6005); 

Debra Chappell, Transportation 

Specialist (telephone: 202–493–6018); 

or Kathryn Gresham, Attorney Adviser, 

Office of the Chief Counsel (telephone: 

202–493–6063). 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Executive Summary 

II. Funding 

III. Section-by-Section Analysis 

IV. Regulatory Impact and Notices 

A. Executive Order 12866, Congressional 

Review Act, and DOT Regulatory 

Policies and Procedures 

B. Regulatory Flexibility Determination 

C. Federalism 

D. Paperwork Reduction Act 

E. Environmental Impact 

F. Executive Order 12898 (Environmental 

Justice) 

G. Unfunded Mandates Reform Act of 1995 

H. Energy Impact 

I. Executive Summary 

This final rule revises FRA’s 

regulation (49 CFR 234.11) on State 

highway-rail grade crossing action plans 

(Action Plans) to require 40 States and 

the District of Columbia (DC) to develop 

and implement FRA-approved Action 

Plans. The final rule also requires ten 

States that were previously required to 

develop Action Plans by the Rail Safety 

Improvement Act of 2008 1 (RSIA) and 

FRA’s implementing regulation at 49 

CFR 234.11 to update their plans and 

submit reports describing the actions 

they have taken to implement their 

plans. 

This final rule is intended to 

implement the Fixing America’s Surface 

Transportation Act (FAST Act) mandate 

that the FRA Administrator promulgate 

a regulation requiring States to develop, 

implement (and update, if applicable) 

Action Plans.2 In RSIA, Congress 

directed the Secretary of Transportation 

(Secretary) to identify the ten States that 

had the most highway-rail grade 

crossing (GX) collisions, on average, 

over the previous three years, and 

require those States to develop Action 

Plans for the Secretary’s approval.3

RSIA required the Action Plans to 

‘‘identify specific solutions for 

improving’’ grade crossing safety and to 

‘‘focus on crossings that have 

experienced multiple accidents or are at 

high risk’’ for accidents. Using FRA’s 

database of reported GX accidents/ 

incidents that occurred at public and 

private grade crossings, FRA determined 

the following ten States had the most 

reported GX accidents/incidents at 

public and private grade crossings 

during the three-year period from 2006 

through 2008: Alabama, California, 

Florida, Georgia, Illinois, Indiana, Iowa, 

Louisiana, Ohio, and Texas. Therefore, 

on June 28, 2010, FRA issued a final 

rule (2010 final rule) requiring these ten 

States to develop Action Plans and 

submit them to FRA for approval (based 

on the Secretary’s delegation of 

authority to the Federal Railroad 

Administrator in 49 CFR 1.89).4

Section 11401 of the FAST Act 

(Section 11401) 5 tasks the FRA 

Administrator with promulgating a 

regulation requiring these ten States to 

update the Action Plans they previously 

submitted to FRA under 49 CFR 234.11. 

This statutory mandate also directs FRA 

to include a regulatory provision that 

requires each of these ten States to 

submit a report to FRA describing: (a) 

What the State did to implement its 

previous Action Plan; and (b) how the 

State will continue to reduce GX safety 

risks. As for the other 40 States and DC, 

Section 11401(b)(1)(B) requires the FRA 

Administrator to promulgate a 

regulation requiring them to develop 

and implement State Action Plans. 

The FAST Act mandate contains 

specific requirements for the contents of 

the Action Plans. As set forth in Section 

11401(b)(2), each Action Plan must 

identify GXs that: (a) Have experienced 

recent GX accidents or incidents; (b) 

have experienced multiple GX accidents 

or incidents; or (c) are at high-risk for 

accidents or incidents. Section 

11401(b)(2) further provides that each 

Action Plan must identify specific 

strategies for improving safety at GXs, 

including GX closures or grade 

separations, and that each State Action 

Plan must designate a State official 

responsible for managing 

implementation of the plan. 

In addition, the FAST Act mandate 

contains requirements related to FRA’s 

review and approval of State Action 

Plans, as well as requirements related to 

the publication of FRA-approved plans. 

For example, when FRA approves a 

State’s Action Plan, Section 11401(b)(4) 

requires FRA to make the approved plan 

publicly available on an ‘‘official 

internet website.’’ 

If a State submits an Action Plan FRA 

deems incomplete or deficient, Section 

11401(b)(6) requires FRA to notify the 

State of the specific areas in which the 

plan is deficient. In addition, Section 

11401(b)(6) requires States to correct 

any identified deficiencies and resubmit 

their corrected plans to FRA within 60 

days from FRA’s notification of the 

deficiency. If a State fails to meet this 

60-day deadline for correcting 

deficiencies identified by FRA, Section 

11401(b)(8) requires FRA to post a 

notice on an ‘‘official internet website’’ 

that the State has an incomplete or 

deficient Action Plan. FRA personnel, 

including FRA regional grade crossing 

managers, inspectors, and specialists 

and experts from FRA’s Highway-Rail 

Crossing and Trespasser Programs 

Division, are available to assist States 

with developing, implementing, and 


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6 84 FR 60032 (Nov. 7, 2019). 

updating their Action Plans. For 

example, as further explained in the 

Section-by-Section Analysis below, FRA 

will offer webinars as well as provide 

GX accident/incident data to States 

upon request. FRA will also assist State 

agencies that wish to use FRA’s Office 

of Safety Analysis website (https://

railroads.dot.gov/safety-data) to 

generate customized reports of GX 

accident/incident data. 

II. Funding 

FRA received comments 

recommending that Federal funding 

should be available to offset the costs 

associated with State efforts to develop 

and update Action Plans, as required by 

this final rule. Delaware DOT (DelDOT) 

commented that dedicated funding 

should be available for States to develop 

and implement their Action Plans as 

required by FRA, while the Vermont 

Agency of Transportation (VTrans) 

submitted comments encouraging FRA 

to include funding to States in carrying 

out this requirement. Otherwise, 

DelDOT asserted that the costs 

associated with developing and 

implementing an Action Plan would 

prohibit or delay the State’s 

implementation of safety improvements. 

The statutory mandate for this 

rulemaking did not contain any 

provision that would authorize 

dedicated Federal funding for the 

Action Plans. However, Section 

11401(d) allows for States to use Federal 

funds allocated through the Federal 

Highway Administration’s (FHWA) 

Railway-Highway Crossings (Section 

130) Program to develop and update 

their Action Plans as required by this 

final rule. In addition, the two percent 

limitation on the use of Section 130 

funds apportioned to a State allowed by 

23 U.S.C. 130(k) for the compilation and 

analysis of data in support of the RailHighway Crossings Program annual 

reports does not restrict the use of 

Section 130 funds to develop or update 

Action Plans. However, FRA 

recommends States contact their local 

FHWA Division Office for more 

information, if they have questions 

about the use of Section 130 funds or 

any other FHWA-administered funds to 

develop or update their Action Plans. 

Minnesota DOT (MNDOT) submitted 

comments requesting specific guidance 

on how States may use Section 130 

funds to develop their Action Plans. In 

particular, MNDOT asked if States may 

use Section 130 funds to offset the cost 

of developing Action Plans at 100 

percent funding, or whether States will 

be required to come up with a 10 

percent match. In addition, if States will 

be required to come up with a 10 

percent match, MNDOT asked if the 

State of Minnesota can use funds in its 

Grade Crossing Safety Account as the 10 

percent match. Under 23 U.S.C. 

130(f)(3), the Federal share of railhighway crossing projects using Section 

130 set-aside funds is 90 percent. The 

question regarding State of Minnesota 

Grade Crossing Safety Account funds 

falls outside the scope of this 

rulemaking, as the State of Minnesota 

administers the distribution of State 

funding. As such, FRA recommends that 

MNDOT coordinate with the 

appropriate agency to obtain guidance 

on that issue. 

III. Section-by-Section Analysis 

Section 234.1 Scope 

This section discusses the scope of 

part 234. As proposed in the notice of 

proposed rulemaking (NPRM),6 FRA is 

revising paragraph (a)(3) to reflect the 

revised requirements contained in 49 

CFR 234.11 as a result of the FAST Act 

mandate and indicate that these revised 

requirements are within the scope of 

this part. 

Section 234.5 Definitions 

Although FRA proposed no new 

definitions in the NPRM, after reviewing 

the comments received in response to 

the NPRM, in this final rule, FRA is 

adding definitions for three terms used 

in § 234.11 to the list of definitions in 

§ 234.5. 

The first definition FRA is adding is 

the definition of the term ‘‘accident/ 

incident,’’ which FRA is adopting, in 

part, from the definition of the term in 

49 CFR 225.5. Specifically, this final 

rule defines ‘‘accident/incident’’ as any 

impact between railroad on-track 

equipment and a highway user at a GX 

or pathway grade crossing (PX). The 

definition further notes that the term 

‘‘highway user’’ includes automobiles, 

buses, trucks, motorcycles, bicycles, 

farm vehicles, pedestrians, and all other 

modes of surface transportation, 

motorized and un-motorized. 

FRA received a number of comments 

on its proposal to replace the term 

‘‘collisions’’ in § 234.11(a) with the term 

‘‘accidents,’’ and to use the term 

‘‘accident or incident’’ in § 234.11(e) 

when describing required Action Plan 

elements. MNDOT and the Oregon 

Department of Transportation (ODOT) 

commented that use of the terms 

‘‘accidents’’ (used in proposed 

paragraph (a)) and ‘‘accident or 

incident’’ (used in proposed paragraph 

(e)) would be confusing. MNDOT 

recommended that FRA define these 

terms in the final rule. ODOT 

recommended that FRA use a single 

word or word combination consistently 

throughout the final rule, instead of 

switching back and forth between 

‘‘accident’’ and the word combination 

‘‘accident or incident.’’ A resident of 

Chicago, Illinois also commented that 

the phrase ‘‘accident or incident’’ is too 

vague. 

In addition, FRA received comments 

from one or more unnamed individuals 

calling themselves the ‘‘State Program 

Managers Section 130/State [GX] 

Program Office,’’ and self-described as 

having a combined 50 years of public 

service experience and over 25 years of 

experience managing Section 130 

programs. FRA refers to this commenter 

as the ‘‘130 Group’’ to distinguish them 

from official comments submitted on 

behalf of Section 130 Program Managers 

for one or more State departments of 

transportation. In their comments, the 

130 Group recommended FRA use the 

term ‘‘collision’’ or the term ‘‘crash’’ in 

this final rule for consistency with other 

highway safety programs that seek to 

mitigate the frequency and severity of 

incidents. The 130 Group explained that 

use of the term ‘‘accident’’ has been 

discouraged because a train always has 

the right of way and a vehicle must 

always stop or approach a grade 

crossing prepared to stop. 

The Alaska Department of 

Transportation and Public Facilities 

(Alaska DOT&PF) also prefers the word 

‘‘crashes.’’ Alaska DOT&PF asserted in 

its comments that ‘‘crashes’’ is the 

terminology more commonly recognized 

by traffic safety practitioners and 

interest groups and recommended that 

FRA at least explain why the term is not 

used, if not adopted in the final rule. 

After considering these comments, in 

this final rule, FRA is adopting a 

slightly revised term, ‘‘accident/ 

incident.’’ In making this decision, FRA 

relied heavily on the plain language of 

Section 11401(b), which specifically 

refers to ‘‘[GX] accidents or incidents’’ 

as one of the primary factors for 

identifying GXs that must be addressed 

by States in their Action Plans. FRA 

notes that the word combination 

‘‘accidents or incidents’’ used in Section 

11401(b) is essentially the same as the 

term ‘‘accident/incidents,’’ which has 

been used for years in FRA’s accident 

reporting regulations in 49 CFR part 

225. 

This final rule also moves the existing 

definition of ‘‘pathway grade crossing’’ 

from § 234.301 (which applies only to 

FRA’s Emergency Notification System 

regulations in subpart C to 49 CFR part 

234) to § 234.5. Although FRA did not 

propose to move this definition in the 


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NPRM, by moving it to § 234.5 in this 

final rule, the definition will now apply 

to all of FRA’s grade crossing 

regulations in 49 CFR part 234. For 

purposes of this final rule, including the 

definition in § 234.5 will make clear the 

term’s meaning as it is used in § 234.11, 

which as revised, requires States to 

address safety at PXs, as well as GXs, in 

their Action Plans. This change is 

consistent with the mandate of Section 

11401(e), which defines ‘‘highway-rail 

grade crossing’’ to include locations 

where ‘‘a pathway explicitly authorized 

by a public authority or a railroad 

carrier . . . crosses one or more railroad 

tracks either at grade or gradeseparated.’’ Specifically, in this final 

rule, FRA is defining the term ‘‘pathway 

grade crossing’’ in § 234.5 to mean a 

pathway that crosses one or more 

railroad tracks at grade and that is: (1) 

Explicitly authorized by a public 

authority or a railroad; (2) dedicated for 

the use of non-vehicular traffic, 

including pedestrians, bicyclists, and 

others; and (3) not associated with a 

public highway, road, or street, or a 

private roadway. 

Pathways that are contiguous with, or 

separate but adjacent to, GXs are part of 

the GX and are not separate crossings. 

However, as explained in FRA’s Guide 

for Preparing U.S. DOT Crossing 

Inventory Forms, pathways that 

intersect with one or more railroad 

tracks more than 25 feet from the 

location where a highway, road, or 

street intersects with one or more 

railroad tracks are generally separate 

PXs. The comments regarding this term 

and FRA’s responses are further 

discussed below in the discussion 

regarding § 234.11. 

FRA is also adding a definition of 

‘‘State highway-rail grade crossing 

action plan’’ or ‘‘Action Plan.’’ This 

definition is being added in response to 

multiple comments from State agencies, 

including Alaska DOT&PF, Washington 

Utilities and Transportation 

Commission staff (Washington UTC 

staff), the South Dakota Department of 

Transportation (SDDOT) and the 

departments of transportation for Idaho, 

Montana, North Dakota, and Wyoming, 

recommending that FRA allow States 

the flexibility to coordinate, integrate, or 

incorporate their Action Plans with 

other reports, such as the Strategic 

Highway Safety Program (SHSP) or the 

State Transportation Improvement 

Program. Specifically, this final rule 

defines ‘‘State highway-rail grade 

crossing action plan’’ or ‘‘Action Plan’’ 

as a document submitted to FRA for 

review and approval by a State of the 

United States (or DC), which contains 

the elements required by § 234.11(e) to 

address safety at highway-rail and 

pathway grade crossings. Therefore, a 

State may comply with this final rule by 

submitting an existing document to FRA 

that addresses GX and PX safety, 

provided the existing document 

contains (or is amended to include) all 

the required elements in § 234.11(e). 

Section 234.11 State Highway-Rail 

Grade Crossing Action Plans 

Currently, paragraph (a) of this 

section indicates that the purpose of this 

section is to reduce ‘‘collisions’’ at GXs 

in the ten States that had the most GX 

collisions from 2006–2008 (the ‘‘initial 

ten States’’). Existing paragraph (a) also 

makes clear that this section does not 

restrict any other entity from adopting 

an Action Plan, nor would it restrict any 

State or DC from adopting an Action 

Plan with additional or more stringent 

requirements not inconsistent with this 

regulation. In the NPRM, FRA proposed 

to replace the word ‘‘collisions’’ with 

the word ‘‘accidents’’ for consistency 

with the language of Section 11401(b). 

For the reasons discussed above, in this 

final rule, FRA is revising paragraph (a) 

to state that the purpose of the section 

is to reduce ‘‘accident/incidents’’ at GXs 

and PXs nationwide by requiring States 

and DC to develop or update and 

implement Action Plans. 

As revised, paragraph (a) reiterates the 

existing language clarifying that this 

section does not restrict any entity from 

adopting an Action Plan with additional 

or more stringent requirements, nor 

does it restrict any State or DC from 

adopting an Action Plan with additional 

or more stringent requirements not 

inconsistent with this regulation. For 

purposes of this section, unless 

otherwise stated, the term ‘‘State’’ refers 

to any one of the 50 States in the United 

States of America or DC; FRA also 

separately refers to or identifies DC 

within part 234 for clarity in some 

instances. 

Consistent with the NPRM, paragraph 

(b) of this section requires 40 States (the 

States other than the initial ten States) 

and DC to develop individual Action 

Plans that address each of the required 

elements listed in paragraph (e) of this 

section, and to submit their individual 

plans to FRA for review and approval 

no later than 14 months after the final 

rule publication date. For the reasons 

discussed below, in this final rule, FRA 

is adding a definition of ‘‘State highwayrail grade crossing action plan’’ to 

§ 234.11 to clarify that a State may 

prepare and submit a document 

specifically designed to satisfy the 

requirements of this section or submit 

an existing document that contains (or 

is amended to include) all the required 

elements in § 234.11(e). 

For example, to satisfy the 

requirements of this final rule, a State 

may choose to update its SHSP and 

provide the updated SHSP to FRA for 

review and approval as its Action Plan. 

However, States should be mindful that 

updating an existing document to 

include all the required elements in 

§ 234.11(e) does not change the 

underlying nature of the document. 

Accordingly, if a State chooses to 

update an existing document to include 

all the required elements in § 234.11(e), 

this final rule does not relieve the State 

from complying with all applicable 

State or Federal requirements that 

govern the existing document. 

Also, if a State chooses to update an 

existing document, the State is strongly 

encouraged to add a separate chapter or 

appendix to address the required 

elements in paragraph (e) of this section. 

In the alternative, the State may add an 

index to the updated document that 

clearly identifies the specific pages on 

which the required elements in 

paragraph (e) of this section are 

addressed. 

Paragraph (b) also requires 40 States 

(the States other than the initial ten 

States) and DC to submit their Action 

Plans electronically through FRA’s 

website in Portable Document Format 

(PDF). FRA will provide a secure 

document submission site for States and 

DC to use to upload their Action Plans 

for FRA review and approval. 

DelDOT, MNDOT, the 130 Group, and 

the departments of transportation for 

Idaho, North Dakota, South Dakota, and 

Wyoming submitted comments on the 

proposed requirement in paragraph (b) 

to submit individual Action Plans to 

FRA for review and approval. DelDOT 

noted that the State of Delaware 

currently experiences an extremely low 

number of train-related crashes and 

asserted that developing an Action Plan 

would draw resources away from other 

ongoing efforts to make a positive safety 

impact on the State and its 

communities. Accordingly, DelDOT 

recommended that FRA establish 

guidelines that, if met, would exempt a 

State from the requirement to develop 

an Action Plan. 

The 130 Group also recommended 

that FRA establish a threshold that, if 

met, would exempt a State from the 

requirement to develop an Action Plan. 

Specifically, the 130 Group 

recommended that FRA establish a 

national car-train crash ratio threshold 

that would exempt States with car-train 

crash ratios lower than the threshold 

from the requirement to develop and 


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submit an Action Plan to FRA for 

review and approval. 

Another commenter, identified as the 

Chicagoland Rail Safety Team (CRST), 

similarly recommended that FRA 

conduct an ‘‘almost perfunctory’’ review 

of the Action Plans submitted by States 

with the lowest number of grade 

crossing fatalities. In addition, CRST 

recommended that FRA allow States 

with the lowest number of grade 

crossing fatalities simply to complete an 

FRA-prepared questionnaire. 

FRA also received multiple comments 

from State agencies, including Alaska 

DOT&PF, Washington UTC staff, 

SDDOT and the departments of 

transportation for Idaho, Montana, 

North Dakota, and Wyoming, 

recommending that FRA include a 

provision in this final rule allowing 

States the flexibility to coordinate, 

integrate, or incorporate their Action 

Plans with other reports, such as the 

SHSP or the State Transportation 

Improvement Program. The departments 

of transportation for Idaho, Montana, 

North Dakota, South Dakota, and 

Wyoming asserted that integrating the 

Action Plans required by this 

rulemaking with other plans may 

improve implementation, facilitate and 

simplify coordination, and promote 

synergy with other plans. 

Section 11401(b) specifically directed 

FRA to issue implementing regulations 

requiring each State (except for the 

initial ten States) to develop and 

implement an Action Plan. Therefore, 

this final rule does not exempt any State 

from the requirement to develop a 

written plan to improve safety at GXs 

and PXs. However, recognizing that a 

number of States may have already 

developed written plans or other 

documents addressing GX and PX 

safety, as noted above, FRA has added 

a definition of ‘‘Action Plan’’ to this 

final rule that allows States to submit 

existing documents that address GX and 

PX safety, if the documents contain (or 

are amended to include) all the required 

elements listed in paragraph (e) of this 

section. As explained above, if a State 

chooses to update an existing document, 

the document must address all the 

required elements listed in paragraph (e) 

in a separate chapter or appendix so that 

it is clear how it complies with the 

requirements for an Action Plan. If a 

State decides to submit an existing 

document as its Action Plan to FRA for 

review and approval, without adding a 

separate chapter or appendix, the State 

should include an index that shows 

where the document addresses each 

required element listed in paragraph (e). 

MNDOT commented that the 14- 

month period within which States are 

required to develop Action Plans is 

extremely aggressive. However, FRA 

does not have the flexibility to extend 

the 14-month period for States to 

develop and update Action Plans 

because FRA is required by Section 

11401 to review and approve the Action 

Plans and then report to Congress 

information about the Action Plans and 

their implementation within three years 

of the date of this final rule. Therefore, 

FRA will work closely with States that 

seek FRA’s assistance in preparing their 

Action Plans, and allow flexibility to 

submit existing documents that contain 

(or are amended to include) all the 

required elements listed in paragraph (e) 

of this section. 

DelDOT urged FRA to clarify that the 

requirement in paragraph (b) to develop 

Action Plans does not contain a duty to 

update Action Plans after they have 

been approved by FRA. Except for the 

initial ten States, the statutory mandate 

in Section 11401(b) does not direct FRA 

to require States to update their Action 

Plans. Therefore, except for the initial 

ten States that are required to submit 

updated Action Plans this one time, this 

final rule does not require States to 

update their Action Plans after they are 

approved by FRA. 

FRA recommends that States update 

their Action Plans even though they are 

not required to do so. The actions States 

must take to develop Action Plans and, 

more specifically, to develop specific 

strategies for improving grade crossing 

safety can, if done properly, 

significantly improve safety and 

complement other efforts by States to 

improve transportation safety generally, 

by focusing attention on the State’s GX 

and PX safety needs. In this regard, 

Action Plans can supplement existing 

State efforts to increase the effectiveness 

of grade crossing improvements by 

adding a planning component to 

identify GXs and PXs that have 

experienced recent (or multiple) 

accident/incidents or are considered 

‘‘high-risk’’ for having one or more 

accident/incidents in the future. 

Currently, paragraph (c) of this 

section outlines requirements for the 

Action Plans that the initial ten States 

were required to submit to FRA by 

August 27, 2011. As proposed in the 

NPRM and in response to the statutory 

mandate in Section 11401(b), this final 

rule revises paragraph (c) to require 

each of the initial ten States to update 

their existing Action Plans and to 

provide individual reports on their 

efforts to implement their existing plans 

and on the continuation of their 

strategies to reduce GX and PX safety 

risks. 

As also proposed in the NPRM, 

paragraph (c)(1) of this section requires 

each of the initial ten States to update 

their existing Action Plans to address 

each of the required elements listed in 

paragraph (e) of this section within 14 

months of the final rule publication 

date. (Action Plans developed by the 

other 40 States and DC will be required 

to address these elements as well.) 

Paragraph (c)(1) also requires each of the 

initial ten States to submit their updated 

Action Plans to FRA for review and 

approval. 

The list of required elements in 

paragraph (e) incorporates many of the 

elements that the initial ten States were 

required to address in their existing 

plans. However, as discussed below, 

there are new requirements that the 

initial ten States will need to address in 

their updated plans. For example, for 

consistency with Section 11401(b), 

States will need to address PX safety 

and States will need to identify the data 

sources used to classify PXs and GXs in 

one of the categories set forth in 

paragraph (e)(1). Below is a more 

detailed discussion of paragraph (e) 

requirements. 

As proposed in the NPRM, paragraph 

(c)(2) requires each of the initial ten 

States to submit a report to FRA 

describing how the State implemented 

the Action Plan that it previously 

submitted to FRA under 49 CFR 234.11. 

Each of these initial ten States is also 

required by paragraph (c)(2) to describe 

in its report how the State will continue 

to reduce GX and PX safety risks. These 

requirements are derived from Section 

11401(b). 

This report, which must address each 

proposed initiative or solution 

contained in the State’s Action Plan 

originally submitted to FRA under 49 

CFR 234.11, can be submitted as an 

appendix to the State’s updated Action 

Plan. As CRST recommends in its 

comments, FRA intends to use these 

implementation reports to identify 

States that have effective Action Plans 

in place, as well as States with Action 

Plans that need to be improved, so FRA 

can provide additional assistance that 

may be needed through focused 

outreach efforts. 

Paragraph (c)(3) has been added to the 

final rule, in order to move the list of 

the initial ten States from paragraph (d), 

as proposed, into paragraph (c) for ease 

of reference. This change is not 

substantive. 

Paragraph (d) of this section requires 

the initial ten States to submit their 

updated Action Plans and individual 

implementation reports electronically in 

PDF form. FRA will provide a secure 

document submission site for these 


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80652 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 

States to use to upload their updated 

Action Plans and implementation 

reports for FRA review. 

As proposed in the NPRM, paragraph 

(e) of this section contains a list of 

required elements for new and updated 

State Action Plans. These elements are 

derived from Section 11401(b)(2), which 

mandates that each State Action Plan 

‘‘identify [GXs] that have experienced 

recent [GX] accidents or incidents or 

multiple [GX] accidents or incidents, or 

are at high-risk for accidents or 

incidents.’’ 

As noted in the section-by-section 

discussion of § 234.5 above, States are 

required to address both GXs and PXs 

in their Action Plans. Congress 

specifically included PXs in Section 

11401(b). Therefore, although not 

proposed in the NPRM, in deference to 

Congressional intent to require States to 

address both GXs and PXs, FRA is 

requiring States to address PXs in their 

Action Plans. 

FRA received comments from the 130 

Group expressing concern that this final 

rule might require States to address 

private grade crossings in their Action 

Plans. The 130 Group asserted that State 

efforts to regulate private crossings 

(especially when combined with the 

complications of access to private 

property) would require significantly 

more staff and would open ‘‘a myriad of 

legal issues regarding government 

oversight of private infrastructure and 

operations.’’ Therefore, the 130 Group 

recommended that paragraph (e)(1) be 

limited to public GXs. 

Section 11401(b) specifically includes 

private GXs in its definition of the term 

‘‘GX.’’ Therefore, FRA has not revised 

this final rule to limit its scope to public 

GXs. However, FRA recognizes that not 

all States exercise jurisdiction over 

private grade crossings. Accordingly, 

while this final rule requires States to 

assess risk levels at private grade 

crossings, and to address private grade 

crossings that present significant levels 

of risk, FRA recognizes that the ability 

of States to address risks at private grade 

crossings will depend on the level of the 

authority individual States exercise over 

those crossings (and, in some cases, the 

public/private nature of the roadway 

leading to the crossing). 

In addition, FRA received comments 

from a resident of Chicago, Illinois and 

the CRST, urging FRA to encourage 

States to use an expanded definition of 

the term ‘‘GX’’ that would include 1,000 

feet on either side of the actual 

intersection of the roadway with 

railroad tracks. CRST also 

recommended, in the alternative, that 

FRA send a letter to members of 

Congress seeking additional information 

about the Congressional intent 

underlying Section 11401. Specifically, 

CRST recommended that FRA confirm 

whether Congress intended States to 

focus their Action Plans on GXs as 

currently defined in 49 CFR 234.5, or 

whether Congress intends States to 

utilize a more expansive definition, 

such as CRST’s proposed definition, 

which would include more trespassing 

casualties. In support of its 

recommendation, CRST pointed to data 

included in FRA’s National Strategy to 

Prevent Trespassing on Railroad 

Property, which indicates that 74 

percent of trespasser deaths and injuries 

occurred within 1,000 feet of a grade 

crossing. Similarly, the resident of 

Chicago, Illinois asserted that 

trespassing injuries and fatalities should 

not be excluded simply because they do 

not occur where pavement and rails 

intersect. This commenter urged FRA to 

require States to differentiate uniformly 

between trespasser and vehicle 

incidents in their Action Plans, so that 

States will collect and categorize this 

information separately as incidents 

occur. 

FRA encourages States in their Action 

Plans to evaluate potential risks posed 

by trespassing within 1,000 feet of the 

actual intersection of the roadway with 

the railroad tracks. 

Similarly, FRA encourages States to 

differentiate between motor vehicle 

crashes and pedestrian fatalities and 

injuries that occur at GXs and PXs in 

their Action Plans and to assess whether 

they need to take specific actions to 

address pedestrian safety at GXs and 

PXs. Nonetheless, FRA received 

multiple comments from States, 

including the Washington Utilities and 

Transportation Commission staff, 

SDDOT, and the State departments of 

transportation for Idaho, Montana, 

North Dakota, and Wyoming, expressing 

concern that this rulemaking should 

support State efforts to develop simple, 

straightforward and low-cost Action 

Plans and should not impose additional 

regulatory requirements that were not 

specifically included in the language of 

the FAST Act. Therefore, FRA strongly 

recommends that States with GXs and 

PXs located near locations identified as 

trespasser ‘‘hot spots’’ include strategies 

in their Action Plans to address 

trespassing, as some GXs and PXs may 

be used by individuals to gain access to 

the railroad right-of-way. However, in 

recognition of the fact that not all States 

have significant pedestrian safety 

concerns at their highway-rail and 

pathway crossings, FRA is not revising 

the definition of ‘‘GX’’ in § 234.5 to 

include the railroad right-of-way within 

1,000 feet of the intersection of the 

roadway with the railroad tracks, nor is 

FRA requiring States to assume the 

additional burden of collecting and 

categorizing information about motor 

vehicle crashes and pedestrian fatalities 

and injuries separately. FRA is 

addressing the trespassing issue through 

implementation of its National Strategy 

to Prevent Trespassing on Railroad 

Property (available online at https://

railroads.dot.gov/national-strategyprevent-trespassing). 

As proposed in the NPRM, paragraph 

(e)(1) would require States to identify in 

their Action Plans GXs that: (1) Have 

experienced at least one accident or 

incident within the previous three 

years; (2) have experienced more than 

one accident or incident within the 

previous five years; or (3) are at ‘‘highrisk’’ for accidents or incidents as 

defined by the relevant State or DC. 

FRA received comments on the 

proposed three-year period in paragraph 

(e)(1)(i) from ODOT, which 

recommended that the time period be 

made consistent with the proposed fiveyear time period in proposed paragraph 

(e)(1)(ii). Asserting three years of 

accident or incident data may not be 

enough to make a determination, ODOT 

recommended that a consistent five-year 

period would be most appropriate. 

However, as noted in the NPRM, FRA 

intended to use different time periods in 

paragraphs (e)(1)(i) and (e)(1)(ii) to 

differentiate between grade crossings 

that have experienced ‘‘recent’’ 

accident/incidents and grade crossings 

that have experienced ‘‘multiple’’ 

accident/incidents as Section 11401(b) 

requires. As explained in the NPRM, the 

three-year time period in paragraph 

(e)(1)(i) is intended to enable States to 

identify which individual GXs and PXs 

have experienced ‘‘recent’’ accident/ 

incidents. The five-year time period in 

paragraph (e)(1)(ii) is intended to enable 

States to identify which individual GXs 

and PXs have experienced ‘‘multiple’’ 

GX accidents/incidents. This five-year 

timeframe is consistent with the fiveyear timeframe used by the initial ten 

States when they prepared their Action 

Plans pursuant to existing § 234.11. 

FRA received comments on this 5- 

year period in paragraph (e)(1)(ii) from 

MNDOT, in which MNDOT noted the 

State of Minnesota has a very low 

number of GXs that have experienced 

more than one accident or incident in 

the previous five years. Therefore, 

MNDOT asked whether it would be 

permissible for a State to look back over 

a longer period to improve its analysis. 

Thankfully, as MNDOT points out, 

some States have a very low number of 

GXs which have experienced more than 

one accident/incident in the previous 


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five years. FRA suggests that States with 

very low grade crossing accident/ 

incident numbers should consider 

defining what constitutes a GX or PX 

with a ‘‘high-risk for accidents or 

incidents’’ in accordance with 

paragraph (e)(1)(iii) and addressing 

those crossings in their Action Plans. As 

proposed in the NPRM, paragraph 

(e)(1)(iii) allows a State to define what 

constitutes grade crossings with a ‘‘highrisk for accidents or incidents’’ and 

focus its Action Plan on those crossings. 

By choosing this option, as opposed to 

trying to identify GXs and PXs that have 

experienced previous accidents/ 

incidents in accordance with paragraph 

(e)(1)(i) or (ii), States with low grade 

crossing accident/incident numbers can, 

within the constraints of paragraph 

(e)(1)(iii), use a different set of criteria 

to identify GXs and PXs to address in 

their Action Plans. 

MNDOT also submitted comments on 

the proposed paragraph (e)(1)(iii), 

noting that the State of Minnesota has 

done significant work developing a risk 

ranking system for project selection. 

Therefore, MNDOT expressed optimism 

that, given FRA’s proposal in the 

proposed rule to allow States the 

flexibility to define ‘‘high risk’’ GXs, 

MNDOT may be able to use their 

existing risk ranking system to define 

‘‘high risk’’ GXs within the State of 

Minnesota and thereby reduce plan 

development costs. 

However, the American Federation of 

Labor and Congress of Industrial 

Organizations (AFL–CIO), the 

Association of American Railroads 

(AAR), and an individual commenter 

submitted comments expressing 

concern with the proposed language in 

paragraph (e)(1)(iii) that would allow 

States to define what constitutes a ‘‘high 

risk’’ GX. AFL–CIO asserted that the 

proposed language in paragraph 

(e)(1)(iii) would allow States to limit 

their efforts to grade crossings where an 

accident has already taken place, which 

it asserted would be inconsistent with 

the spirit of the underlying statutory 

mandate. Similarly, while noting that 

some level of risk standardization 

would likely benefit the nation as a 

whole, Mr. Gregory James submitted 

comments recommending that FRA 

disseminate minimum guidelines for 

identifying potentially problematic 

grade crossings. 

AAR expressed concern that if FRA 

does not define what constitutes ‘‘high 

risk’’ of an incident occurring at a GX, 

the result would be 51 different 

definitions of what constitutes ‘‘high 

risk.’’ Therefore, AAR recommended 

that, at a minimum, FRA should include 

factors that States should consider when 

designating a grade crossing as ‘‘high 

risk.’’ For example, AAR recommended 

States consider factors such as profile 

deficiencies, skew, inadequate sight 

distances due to fixed obstructions, and 

the density of neighborhood 

development along the corridor near a 

crossing. 

After considering all the comments 

received and evaluating the potential 

benefits and consequences of allowing 

States to define ‘‘high risk’’ grade 

crossings for themselves, FRA 

determined that the comments provided 

by AFL–CIO, Mr. James, and AAR have 

merit. Accordingly, in this final rule, 

FRA has revised proposed paragraph 

(e)(1)(iii) of this section to include a list 

of key factors that States are required to 

consider in their Action Plans when 

identifying ‘‘high-risk’’ crossings under 

paragraph (e)(1)(iii) of this section. 

These key factors in paragraph (e)(1)(iii) 

include the average annual daily traffic, 

the total number of trains per day that 

travel through the crossing, the total 

number of motor vehicle collisions that 

have occurred at the crossing during the 

previous 5-year period, the number of 

main railroad tracks at the crossing, the 

number of roadway lanes at the 

crossing, sight distance and roadway 

geometry at the crossing, and maximum 

timetable speed at the crossing. 

FRA notes that the key factors listed 

in paragraph (e)(1)(iii) are minimum 

factors a State must consider if defining 

high-risk crossings under paragraph 

(e)(1)(iii). Therefore, FRA encourages 

States to consider any other factors that 

may be present at a particular crossing 

that may increase the risk of an 

accident/incident. Examples of potential 

additional factors a State may find 

useful to consider include: The volume 

and nature of any hazardous materials 

transported through the crossing, the 

frequency of any passenger trains 

traveling through the crossing, and the 

proximity of a school or emergency 

service provider, which could cause a 

high number of school buses or 

emergency service vehicles to travel 

through the grade crossing. AFL–CIO 

asserted in its comments that increased 

pedestrian volume may increase 

opportunities for an accident, while 

AAR identified the density of 

neighborhood development along the 

corridor near the crossing as a factor 

that can contribute to high risk levels at 

a GX. 

When evaluating these risk factors 

and the overall risk levels at individual 

GXs and PXs under paragraph (e)(1)(iii), 

FRA recommends States consider the 

definition of ‘‘risk’’ provided in 49 CFR 

270.5 and 271.5, in which the term 

‘‘risk’’ is defined as ‘‘the combination of 

the probability (or frequency of 

occurrence) and the consequence (or 

severity) of a hazard.’’ FRA also 

recommends that States describe the 

process or formula used to assess risk at 

each crossing in their Action Plans. 

However, to obtain information about 

all the factors considered by States 

when identifying GXs and PXs in their 

Action Plans as ‘‘high risk,’’ paragraph 

(e)(1)(iii) requires States that identify 

‘‘high risk’’ crossings under paragraph 

(e)(1)(iii) to include in their Action 

Plans the complete list of factors 

considered in making this 

determination. 

As proposed in the NPRM, paragraph 

(e)(2) requires States to identify the data 

sources used to categorize the GXs and 

PXs in their Action Plans. To help 

States identify GXs and PXs that have 

experienced recent accident/incidents, 

multiple accident/incidents, or are at 

high-risk for accident/incidents, FRA 

will provide GX and PX accident/ 

incident data to States upon request. 

FRA will also assist State agencies 

electing to use FRA’s Office of Safety 

Analysis website to generate customized 

reports of GX accident/incident data. 

In the NPRM, paragraph (e)(3) would 

require States to discuss specific 

strategies to improve safety at the 

identified crossings over a period of at 

least five years. FRA received a number 

of comments on this proposed 

minimum five-year time period, and for 

the reasons discussed below, FRA is 

revising proposed paragraph (e)(3) to 

provide for a minimum time period of 

four years. 

The departments of transportation for 

Idaho, Montana, North Dakota, South 

Dakota, and Wyoming submitted 

comments noting that Congress 

established planning requirements in 

the Intermodal Surface Transportation 

Efficiency Act of 1991 (ISTEA), the 

Transportation Equity Act for the 21st 

Century (TEA–21), and the Safe 

Accountable Flexible Efficient 

Transportation Equity: A Legacy for 

Users Act (SAFETEA–LU) directing the 

State Transportation Improvement 

Program (STIP) to span four years. 

Accordingly, these State DOTs 

recommended that FRA allow States to 

align the time frame covered by their 

Action Plans with the four-year STIP 

time frame, but not require them to do 

so. The Alaska DOT&PF, on the other 

hand, submitted comments supporting 

the proposed five-year minimum time 

period. Alaska DOT&PF noted that some 

States are not able to insert grade 

separations or rail realignment projects 

into fiscally constrained STIPs. 

After consideration of these 

comments, FRA has concluded that 


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providing the flexibility for State Action 

Plans to cover a minimum four-year 

time period for consistency with other 

surface transportation planning 

requirements is justified. Accordingly, 

FRA is revising proposed paragraph 

(e)(3) to provide that State Action Plans 

must discuss specific strategies to 

improve safety at the identified 

crossings over a period of ‘‘at least four 

years.’’ FRA intends this change to 

facilitate integration of the Action Plans 

required by this final rule with existing 

State planning mechanisms and 

documents (e.g., STIPs, SHSPs, and 

State Rail Plans). However, nothing in 

this final rule restricts States from 

including specific strategies to improve 

crossing safety in their Action Plans for 

a period longer than four years. 

AAR also submitted comments on 

paragraph (e)(3), recommending FRA 

clarify that, prior to making any changes 

to address blocked crossing concerns 

that could impact train operations, 

States must consult with the railroad 

primarily responsible for dispatching 

trains through the crossing as indicated 

by the name of the railroad on the 

Emergency Notification System (ENS) 

sign. FRA expects that States seeking to 

make changes to address blocked 

crossing concerns will, at a minimum, 

coordinate with the railroad primarily 

responsible for dispatching trains 

through the highway-rail or pathway 

grade crossing prior to making any 

changes that could impact train 

operations. Depending on the type of 

change envisioned, the State should 

contact the railroad primarily 

responsible for maintaining the 

highway-rail or pathway grade crossing 

(if different from the railroad primarily 

responsible for dispatching trains 

through the crossing) as well. However, 

a requirement that States must consult 

with railroads prior to implementing 

certain types of strategies in their Action 

Plans to address blocked crossing 

concerns falls beyond the scope of this 

rulemaking. 

FRA also received comments on 

paragraph (e)(3) from Washington UTC 

staff, SDDOT, as well as the 

departments of transportation for Idaho, 

Montana, North Dakota, and Wyoming. 

In their comments, these State agencies 

recommended that the final rule include 

language allowing States to discuss the 

types of grade crossing improvement 

projects they will address and 

emphasize, as opposed to requiring 

States to identify specific projects to be 

undertaken. The departments of 

transportation for Idaho, Montana, 

North Dakota, South Dakota, and 

Wyoming asserted that this approach 

would allow States to set forth policy 

priorities in their Action Plans. FRA 

agrees that States should not be required 

to identify specific projects to be 

undertaken. Therefore, while FRA 

encourages States to identify specific 

projects that they may wish to highlight 

in their Action Plans, FRA would like 

to clarify that this final rule does not 

require project identification. 

Given Section 11401’s mandate that 

FRA prepare and submit a report to 

Congress within three years of issuing 

this final rule, FRA notes that it intends 

to evaluate each Action Plan to assess 

whether it provides sufficient 

information to inform Congress of 

specific strategies that will be 

implemented (or continue to be 

implemented) by individual States to 

improve GX safety. To this end, FRA 

agrees with CRST’s comments that FRA 

should anticipate its reporting 

obligations to Congress, and during 

FRA’s review of Action Plans, 

disapprove any plans that are not 

objective, observable, and measurable. 

FRA received comments from 

multiple State agencies, including 

Washington UTC staff, SDDOT, and 

departments of transportation for Idaho, 

Montana, North Dakota, and Wyoming, 

recommending that the final rule 

include language providing for Action 

Plans to be considered deficient only if 

they are inconsistent with statutory 

requirements, so that modest 

deficiencies in regulatory planning or 

paperwork will not prohibit safety 

investments. While de minimis 

deficiencies in paperwork should not 

lead to an Action Plan being rejected, 

FRA disagrees with the 

recommendation to consider Action 

Plans deficient only if they are 

inconsistent with statutory 

requirements. Section 11401 specifically 

mandates that FRA issue a rule 

requiring States to develop and 

implement Action Plans that meet 

certain requirements. The regulatory 

requirements in this final rule respond 

to that mandate and enable the effective 

and consistent implementation of the 

statutory requirements in Section 11401. 

For example, paragraph (e)(4) of this 

section requires States to provide an 

implementation timeline for the 

strategies identified in their Action 

Plans. Although not specifically 

required by Section 11401, this 

requirement is designed to help ensure 

States implement the strategies 

identified in their Action Plans 

effectively. 

As for the requirement in paragraph 

(e)(3) of this section, which requires 

States discuss specific strategies for 

improving GX and PX safety, CRST 

submitted comments recommending 

that FRA insist that States incorporate 

the safety of pedestrians (at crossings 

and along the railroad right-of-way) into 

their Action Plans. In support of this 

recommendation, CRST asserted that 

over the long term, pedestrian fatalities 

at grade crossings have not 

demonstrated a decreasing trend like 

vehicle occupant fatalities at GXs. 

Similarly, with respect to proposed 

crossing closure projects, CRST stated 

that care must be taken to ensure that 

closure of the grade crossing will not 

result in increased trespassing along the 

railroad right-of-way. 

FRA agrees that States should 

incorporate the safety of pedestrians at 

GXs and PXs into their Action Plans. 

For example, the FAST Act requires 

States to consider crossing closures and 

grade separation projects. Therefore, to 

avoid introducing new or increased risk, 

FRA expects any State contemplating 

crossing-closure and/or grade-separation 

projects will evaluate not only the 

potential reduction in risk to motor 

vehicle occupants from the closure or 

separation project, but also the potential 

impact on trespassing at the location of 

any crossing slated for closure. 

CRST also urged FRA to consider 

making additional changes in this final 

rule to address suicides that occur at 

crossings and along railroad rights-ofway. For example, CRST recommended 

that FRA insist that State Action Plans 

include efforts to reduce suicides at 

grade crossings, as well as along the 

railroad right-of-way, in areas in which 

suicides appear to be a significant 

problem. If a State has experienced a 

high number of suicides at one or more 

GXs or PXs, this final rule provides the 

flexibility for that State to develop and 

include in its Action Plan specific 

strategies to address the issue. FRA 

encourages any State that has 

experienced a high number of suicides 

at particular grade crossings to include 

specific strategies in its Action Plan to 

address suicides at those crossings. 

CRST asserted that FRA’s decision not 

to include suicide data in FRA’s 

periodic summaries of rail-related 

injuries and illnesses associated with 

railroad operations may dissuade States 

from addressing suicides that occur at 

crossings and along the railroad right-ofway. Therefore, CRST recommended 

that FRA amend 49 CFR 225.41 (Suicide 

data) to allow (or require) FRA to report 

all deaths in FRA’s summaries of ‘‘total 

fatalities.’’ In addition, a resident of 

Chicago, Illinois urged FRA to develop 

a mechanism in the final rule that 

would require railroads to release video 

obtained from their outward-facing 

locomotive cameras to State coroners 

and law enforcement officials upon 


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7 84 FR 35712 (July 24, 2019); 49 U.S.C. 20168. 

request, to facilitate State efforts to 

determine accurately the cause of death. 

Although FRA appreciates these 

comments and suggestions, both are 

outside the scope of the statutory 

authority for this rulemaking. FRA does, 

however, maintain several online 

resources that provide access to FRA’s 

railroad trespassing data, including 

certain data related to suicides. One 

such resource, FRA’s Trespass and 

Suicide Dashboard, allows users to 

interact visually with trespass and 

suicide data collected by FRA. 

Therefore, FRA encourages entities 

seeking to view FRA data on fatalities 

that occur at GXs (as defined in 49 CFR 

234.5), as well as fatalities that occur 

along railroad rights-of-way, to visit our 

Trespass and Suicide Dashboard, which 

is accessible online through FRA’s 

website. In addition, FRA notes that it 

has an ongoing rulemaking on 

Locomotive Image and Audio Recording 

Devices for Passenger Trains to 

implement a Congressional mandate.7

In adopting paragraph (e)(4), FRA has 

corrected a typographical error in the 

proposed rule. Paragraph (e)(4) requires 

States to provide an implementation 

timeline for the specific strategies they 

develop to improve safety at the GXs 

identified in their Action Plans. In the 

proposed rule, FRA erroneously 

indicated that the proposed requirement 

to discuss these specific strategies in the 

State Action Plans was contained in 

paragraph (d)(2) of this section. To 

correct this error, paragraph (e)(4) in the 

final rule requires States to provide an 

implementation timeline for ‘‘the 

strategies discussed in paragraph (e)(3) 

of this section.’’ 

As proposed in the NPRM, paragraph 

(e)(5) requires each State and DC to 

designate an official responsible for 

managing implementation of the Action 

Plan. As noted earlier, FRA will create 

a secure document submission site that 

States can use to upload Action Plans. 

The official designated under this 

paragraph will be given primary user 

access to the secure document 

submission site, as well as the authority 

to grant access to secondary users. 

Accordingly, the designated State 

official will need to register with FRA 

to gain primary user access to the secure 

document submission site. 

Paragraph (f) of this section requires 

States and DC to provide contact 

information for their designated 

officials, so they can be invited to set up 

primary user accounts. 

Paragraph (f)(2) also requires each 

State and DC to notify FRA if a new 

official is subsequently designated to 

manage implementation of its Action 

Plan and to provide contact information 

for the new designated official. FRA has 

modified paragraph (f)(2) from that 

proposed in the NPRM in response to 

comments submitted by the Alaska 

DOT&PF recommending that FRA not 

adopt the proposed requirement for 

States to maintain updated contact 

information. Alaska DOT&PF asserted 

that the proposed requirement was too 

onerous, especially for a one-time plan 

with no ongoing reporting requirement. 

FRA agrees that an ongoing 

requirement to maintain current contact 

information for State Action Plans for 

many years seems unnecessary, given 

the absence of any requirement to 

update the plan. Therefore, FRA has 

modified paragraph (f)(2) from that 

proposed in the NPRM to limit the 

period of time States are required to 

maintain current contact information for 

their Action Plans to a four-year period 

after publication of this final rule. This 

requirement will help ensure FRA has 

current contact information while States 

implement their Action Plan strategies 

in accordance with their 

implementation timelines. This 

requirement will also help ensure FRA 

has current contact information 

available when FRA prepares the 

required report to Congress, while 

limiting the burden on States. 

Paragraph (g) of this section sets forth 

FRA’s review and approval process for 

Action Plans. As provided in paragraph 

(g)(1), FRA will update its website to 

reflect receipt of each new, updated, or 

corrected Action Plan. FRA encourages 

States to work with FRA staff as they 

develop their Action Plans. FRA will 

also offer webinars to assist States in 

developing and updating their Plans. As 

indicated in comments submitted by 

CRST, FRA’s ability to provide technical 

assistance to States will help ensure 

States develop Action Plans that can be 

effectively evaluated and implemented. 

To avoid delaying implementation of 

needed grade crossing safety 

improvements, paragraph (g)(2)(i) states 

that FRA will conduct a preliminary 

review of each new, updated, and 

corrected Action Plan within sixty (60) 

days of receipt. During this 60-day 

review period, FRA will determine 

whether a submitted plan has 

adequately addressed the elements 

prescribed in paragraph (e) of this 

section. 

FRA acknowledges comments 

received on ways to improve the 

proposed review process for Action 

Plans. Washington UTC staff, and the 

departments of transportation for Idaho, 

Montana, North Dakota, South Dakota, 

and Wyoming recommended that FRA 

establish a staggered timeline for States 

to submit their Action Plans, in which 

States with the highest number of grade 

crossing accidents would be required to 

submit their plans first. Similarly, 

VTrans submitted comments 

recommending that the final rule allow 

States to submit their Action Plans at 

the same time that they submit their 

SHSPs (which are generally submitted 

in staggered, 5-year cycles). 

FRA does not have the flexibility to 

allow for a staggered timeline or cycle 

for submitting Action Plans to FRA for 

review and approval because Section 

11401 requires FRA to report to 

Congress information about the Action 

Plans and their implementation within 

three years. However, as noted above, 

FRA will offer webinars and work 

closely with any State that desires the 

Agency’s assistance in developing its 

Action Plan. This involvement from 

FRA should help ensure the efficiency 

of the plan review process. 

FRA anticipates that States with a 

high number of grade crossing accident/ 

incidents will submit Action Plans that 

are more detailed than those of States 

with a low number of grade crossing 

accident/incidents. In this regard, FRA 

agrees with comments submitted by 

CRST and all Action Plans submitted 

under this regulation will be carefully 

reviewed. DelDOT commented that 

FRA’s proposed review process would 

create confusion among State officials 

who may not feel confident 

implementing their Action Plans until 

more than 120 days have passed from 

the date of FRA’s receipt of their plans. 

Alaska DOT&PF recommended that FRA 

include FHWA in the review and 

approval process for Action Plans, given 

the potential need for Federal aid 

highway funding to implement the 

strategies identified by States in their 

Action Plans. 

Accordingly, in adopting paragraph 

(g)(2)(ii), FRA is clarifying that Action 

Plans will be considered conditionally 

approved sixty (60) days after receipt by 

FRA unless FRA notifies the State’s 

designated point of contact that the 

Action Plan is incomplete or deficient. 

Therefore, if a State has not been 

notified that its Action Plan is 

incomplete or deficient, a State may 

proceed with implementation of its 

Action Plan after 60 days have elapsed 

from the date of FRA’s receipt of its 

plan. In addition, States may verify the 

review status of their Action Plans by 

checking FRA’s website or contacting 

FRA. 

Paragraph (g)(2)(iii) states that FRA 

reserves the right to conduct a more 

comprehensive review of each ‘‘new, 

updated, or corrected’’ Action Plan, 


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8 5 U.S.C. 801 et seq. 

which may take up to 120 days to 

complete. In addition, FRA will 

continue to consult and coordinate with 

FHWA during FRA’s review of Action 

Plans. 

Paragraph (g)(3) specifically addresses 

Action Plans that FRA determines to be 

incomplete or deficient. As reflected in 

paragraph (g)(3)(i), if FRA finds a 

submitted Action Plan is incomplete or 

deficient, it will notify the appropriate 

designated official via email of the 

specific areas in which the plan is 

deficient or incomplete. 

Paragraph (g)(3)(ii) requires States and 

DC to complete, correct, and resubmit 

within 60 days any Action Plan that 

FRA deems incomplete or deficient. 

This 60-day timeframe is derived from 

Section 11401(b)(7), which directs 

States to complete their Action Plans 

and correct deficiencies identified 

within 60 days of the date of FRA 

notification. 

FRA received a number of comments 

from State agencies on the 60-day 

correction period contained in 

paragraph (g)(3)(ii), including comments 

from SDDOT, Washington UTC staff, 

and the departments of transportation 

for Idaho, Montana, North Dakota, and 

Wyoming, recommending that FRA 

include a provision in the final rule to 

allow States to request an extension of 

time to correct any deficiencies 

identified during FRA’s review of their 

Action Plans, if additional time is 

needed to rectify them. Similarly, 

Alaska DOT&PF submitted comments 

recommending that the final rule allow 

at least 120 days for States to correct any 

deficiencies identified during FRA’s 

review of their Action Plans. 

FRA has not, however, established a 

separate process in this final rule that 

would allow a State to request 

additional time to correct deficiencies 

identified during FRA’s review of its 

Action Plan. While FRA is sympathetic 

to the concerns expressed by these State 

agencies, Section 11401(b) directs States 

to correct deficiencies identified and 

resubmit their Action Plans within 60 

days from the date on which FRA 

notifies them of the deficiencies. In 

addition, this 60-day correction period 

is twice as long as the 30-day period 

within which the initial ten States were 

required to correct any deficiencies 

identified in their Action Plans. 

Therefore, FRA has not expanded the 

60-day correction period mandated by 

Section 11401(b). Nonetheless, as 

previously discussed, FRA intends to 

provide webinars and technical 

assistance to State agencies during the 

14-month period between the 

publication date of this final rule and 

the submission deadline for State 

Action Plans to help ensure efficiency 

in their development and review. 

As provided in paragraph (g)(4)(i), 

after FRA has completed its review and 

approves a new, updated, or corrected 

Action Plan, FRA will notify the State’s 

designated official described in 

paragraph (e)(5) by email that the Action 

Plan has been fully approved. 

Paragraph (g)(4)(ii) states that FRA 

will make each fully-approved Action 

Plan publicly available for online 

viewing. This provision is intended to 

comply with Section 11401(b)(4)’s 

requirement that the FRA Administrator 

make each approved Action Plan 

publicly available on ‘‘an official 

internet website.’’ In addition, to avoid 

confusion, FHWA will remove the 

original Action Plans submitted by the 

initial ten States from its website. 

As provided in paragraph (g)(4)(iii), 

each State and DC are required to 

implement their Action Plans. 

Paragraph (h) of this section provides 

that the Secretary may condition the 

awarding of a rail improvement grant to 

a State or DC on the submission of an 

FRA-approved Action Plan under this 

section. This language reflects the 

authority specifically granted to the 

Secretary in Section 11401(b)(5). 

FRA received comments on the 

language in this paragraph from 

multiple State agencies. Washington 

UTC staff, SDDOT, and the departments 

of transportation for Idaho, Montana, 

North Dakota, and Wyoming submitted 

joint comments expressing concern that 

conditioning the awarding of highwayrail crossing funding or grants on having 

an approved plan is a risky approach 

that may impede important safety 

improvements that can save lives and 

reduce collisions. The departments of 

transportation for Idaho, Montana, 

North Dakota, South Dakota, and 

Wyoming also noted that State highwayrail crossing project selection should not 

be restricted solely by a State’s FRAapproved Action Plan because safety, 

feasibility, engineering judgment, and 

other factors must also be considered. 

FRA agrees that a State’s selection of 

highway-rail crossing improvement 

projects should not be exclusively 

limited to the highway-rail crossing 

improvement projects that are 

specifically identified in the State’s 

FRA-approved Action Plan. However, 

FRA believes a properly prepared 

Action Plan identifying GXs and PXs 

where recent accidents have occurred, 

or that a State characterizes as ‘‘highrisk,’’ can inform project selection. 

During FRA’s review of applications for 

grant funding, FRA often looks for 

evidence of advance planning and 

identification of crossing safety needs 

through data-based risk analysis. 

Therefore, by discussing specific 

projects in their Action Plans, as well as 

the data sources used to identify safety 

needs that will be addressed by these 

projects, States can use their Action 

Plans as a vehicle for providing 

evidence of advance planning and databased crossing risk analysis. 

Section 234.301 Definitions 

As noted in the discussion of § 234.5 

above, in this final rule, FRA is 

removing the definition of ‘‘pathway 

grade crossing’’ from the list of 

definitions in § 234.301 (which applies 

only to FRA’s Emergency Notification 

System regulations in subpart C to 49 

CFR part 234). As previously discussed, 

by removing the definition of ‘‘pathway 

grade crossing’’ from § 234.301 and 

moving it to § 234.5, the definition of 

‘‘pathway grade crossing’’ will now 

apply to all of FRA’s grade crossing 

regulations in 49 CFR part 234. 

IV. Regulatory Impact and Notices 

A. Executive Order 12866, 

Congressional Review Act, and DOT 

Regulatory Policies and Procedures 

This final rule is not a significant 

regulatory action within the meaning of 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and DOT’s 

Administrative Rulemaking, Guidance, 

and Enforcement Procedures in 49 CFR 

part 5. Pursuant to the Congressional 

Review Act,8 the Office of Information 

and Regulatory Affairs designated this 

rule as not a ‘‘major rule,’’ as defined by 

5 U.S.C. 804(2). Details on the estimated 

cost of this rule can be found in the 

Regulatory Evaluation, which FRA has 

prepared and placed in the docket 

(docket number FRA–2018–0096). 

The purpose of the final rule is to 

reduce accident/incidents at GXs and 

PXs nationwide. The final rule requires 

each State and DC to submit or resubmit to FRA an Action Plan. The final 

rule also requires each of the 10 States 

that previously created an FRAapproved Action Plan to submit a report 

to FRA that describes how the State 

implemented its existing Plan and how 

the State will continue to reduce GX 

and PX safety risks. 

Costs 

The final rule specifically lists the 

required elements for Plans. To 

minimize the compliance costs, the final 

rule affords each State the flexibility to 

develop or update an Action Plan based 

upon the individual State’s hazard 

assessment. 


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9Numbers rounded to the nearest 1,000. 

10 5 U.S.C. 601 et seq. 

11 67 FR 53461, Aug. 16, 2002. 12 5 U.S.C. 603(a). 13 64 FR 43255, Aug. 10, 1999. 

Section 11401(a) required FRA to 

develop and distribute a model State 

Action Plan. In conjunction with 

FHWA, FRA developed a ‘‘HighwayRailway Grade Crossing Action Plan and 

Project Prioritization Noteworthy 

Practices Guide.’’ FRA shared this guide 

with States via letters that included the 

data requirements as discussed in 

Section 11401. The guide is currently 

available on DOT’s website. In addition, 

previous Action Plans from the 2010 

final rule have also been made available 

to the public on DOT’s website. After 

issuing this final rule, FRA will provide 

States with assistance in developing 

their Action Plans. 

Table 1 shows the costs associated 

with the final rule. The largest costs for 

the 10 States that have already 

developed an FRA-approved Action 

Plan are: Updating and submitting an 

Action Plan to FRA; submitting a report 

to FRA that describes how the 

previously approved Action Plan was 

implemented; and resubmitting (if 

necessary) an Action Plan if FRA 

determines the State’s updated Action 

Plan submission to be incomplete. 

Collectively, the largest costs for the 

other 40 States and DC are: Developing 

and submitting an Action Plan to FRA; 

and resubmitting (if necessary) an 

Action Plan if FRA determines the 

State’s previous Action Plan submission 

to be incomplete. 

As shown in Table 1, the final rule 

will result in a total cost of $1.0 million 

(PV, 7%), and $1.1 million (PV, 3%). 

TABLE 1—COST SUMMARY, DISCOUNTED AT 7% AND 3% 

[2017 dollars] 9

Costs 

States updating existing plan States creating new plan All states 

7% 3% 7% 3% 7% 3% 

Develop or Update Action plan ................ $350,000 $364,000 $580,000 $602,000 $930,000 $966,000 

Submitting Report to FRA ........................ 57,000 59,000 ........................ ........................ 57,000 59,000 

Resubmit Action Plan .............................. 17,000 18,000 24,000 25,000 41,000 43,000 

Government Admin. Costs ....................... ........................ ........................ ........................ ........................ 20,000 21,000 

Total Cost ......................................... 424,000 441,000 604,000 627,000 1,048,000 1,089,000 

FRA assumes that all costs will be 

incurred in the first year of analysis. 

The costs that are derived from the 

analysis do not include the costs of 

voluntary changes in investments or 

operations that States will make when 

implementing their Action Plans. 

Benefits 

This analysis discusses the nonquantifiable benefits associated with 

this final rule. FRA expects that States 

developing and implementing Action 

Plans may improve the way they 

allocate resources for GX and PX 

mitigation efforts. The final rule’s 

primary benefit will come from a 

reduction in the number of GX and PX 

accident/incidents and the associated 

decrease in fatalities, injuries, and 

property damage, as well as diminished 

environmental impacts. Last, FRA 

anticipates that Action Plans may also 

reduce accident severity, as some States 

may develop and implement Action 

Plans that focus efforts on mitigating 

accident/incidents that are more likely 

to result in fatalities. 

B. Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 

1980 10 (RFA) and Executive Order 

13272 11 require agency review of 

proposed and final rules to assess their 

impacts on small entities. When an 

agency issues a rulemaking proposal, 

the RFA requires the agency to ‘‘prepare 

and make available for public comment 

an initial regulatory flexibility analysis’’ 

that will ‘‘describe the impact of the 

proposed rule on small entities.’’ 12

Section 605 of the RFA allows an 

agency to certify a rule, in lieu of 

preparing an analysis, if the proposed 

rulemaking is not expected to have a 

significant economic impact on a 

substantial number of small entities. 

In the proposed rule, FRA identified 

51 entities (the 50 States and DC) that 

will be affected by the rule. Each of the 

50 States and DC have a population 

greater than 50,000. Therefore, FRA 

certified that the rule would not have a 

significant economic impact on a 

substantial number of small entities. 

FRA received no comments regarding 

the certification. 

The Administrator of FRA hereby 

certifies that this final rule will not have 

a significant economic impact on a 

substantial number of small entities. 

C. Federalism 

Executive Order 13132, 

‘‘Federalism,’’ 13 requires FRA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the Agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

Government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments or the Agency consults 

with State and local governments early 

in the process of developing the 

regulation. Where a regulation has 

federalism implications and preempts 

State law, the Agency seeks to consult 

with State and local officials in the 

process of developing the regulation. 

FRA has analyzed this final rule in 

accordance with the principles and 

criteria contained in Executive Order 

13132. FRA has determined that the 

final rule will not have substantial 

direct effects on the States, on the 

relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. In addition, FRA 

has determined that this final rule, 

which complies with a statutory 

mandate, will not have federalism 

implications that impose substantial 

direct compliance costs on State and 

local governments. Therefore, the 

consultation and funding requirements 


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14 44 U.S.C. 3501 et seq. 

15The proposed burdens for §§ 234.11(d), (e), and 

(f)(1) are covered under §§ 234.11(b) and (c)(1) and 

(2). 

16Based on input from FRA subject matter 

experts and feedback from States, the 40 States and 

DC that currently do not have an FRA-approved 

Action Plan are grouped into four burden levels: 

High, medium, and low, and minimal burden. For 

the 10 States, they are grouped into three burden 

levels: High, medium, and low. 17An hourly compensation rate of $61.20 was 

used to calculate the total cost equivalent. 18 42 U.S.C. 4321 et seq. 19 40 CFR parts 1500 through 1508. 20 23 CFR part 771. 

21 40 CFR 1508.4. 

22 23 CFR 771.116(b). 

23 16 U.S.C. 470. 

24 Department of Transportation Act of 1966, as 

amended (Pub. L. 89–670, 80 Stat. 931); 49 U.S.C. 

303. 

25 91 FR 27534 (May 10, 2012). 

of Executive Order 13132 do not apply, 

and preparation of a federalism 

summary impact statement for this final 

rule is not required. 

D. Paperwork Reduction Act 

The information collection 

requirements in this rule are being 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995.14

The sections that contain the 

information collection requirements and 

the estimated time to fulfill each 

requirement are as follows: 

CFR section 15 Respondent universe Total annual responses Average time per 

responses 16

Total annual 

burden hours 

Total cost 

equivalent 17

234.11(b)—State Action Plans—Development and 

submission of new Action Plans (40 States + 

DC).

40 States + DC ............. 1.3 plans + 2.3 plans + 

4 plans + 6 plans.

700 hours + 550 hours 

+ 200 hours + 60 

hours.

3,377 $206,672 

—(c)(1) Updated Action Plans (10 listed 

States in § 234.11(e)).

10 States ....................... 1 plan + 1 plan + 1.3 

plans.

1,100 hours + 640 

hours + 225 hours.

2,040 124,848 

—(c)(2) Implementation reports (10 listed 

States in § 234.11(e)).

10 States ....................... 1 report + 1 report + 1.3 

reports.

160 hours + 120 hours 

+.

40 hours ........................

333 20,380 

—(f)(2) Notification to FRA by State or DC of 

another official to assume responsibilities 

described under § 234.11(e)(6).

50 States + DC ............. 2.7 notifications ............. 5 minutes ...................... .3 20 

—(g) FRA review and approval of State Action Plans: Disapproved plans needing revision (40 States + DC).40 States + DC ............. .7 plans + .7 plans + 1.3 

plans.

105 hours + 60 hours + 

24 hours.

142 8,690 

—(g) FRA review and approval of State Action Plans: Disapproved plans needing revision (10 listed states in § 234.11(e)).10 States ....................... .3 plans + .3 plans + .3 

plans.

165 hours + 96 hours + 

34 hours.

98 6,016 

Total ......................................................... N/A ................................ 27 plans, reports, and 

notifications.

N/A ................................ 5,991 366,627 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. For 

information or a copy of the paperwork 

package submitted to OMB, contact Ms. 

Hodan Wells, Information Collection 

Clearance Officer, at 202–493–0440. 

Organizations and individuals desiring 

to submit comments on the collection of 

information requirements should direct 

them via email to Ms. Wells at 

Hodan.Wells@dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this rule 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. FRA is not authorized to 

impose a penalty on persons for 

violating information collection 

requirements that do not display a 

current OMB control number, if 

required. The current OMB control 

number for 49 CFR 234.11 is 2130–0589. 

E. Environmental Impact 

FRA has evaluated this final rule 

consistent with the National 

Environmental Policy Act (NEPA),18 the 

Council of Environmental Quality’s 

NEPA implementing regulations,19 and 

FRA’s NEPA implementing 

regulations 20 and determined that it is 

categorically excluded from 

environmental review and therefore 

does not require the preparation of an 

environmental assessment (EA) or 

environmental impact statement (EIS). 

Categorical exclusions (CEs) are actions 

identified in an agency’s NEPA 

implementing regulations that do not 

normally have a significant impact on 

the environment and therefore do not 

require either an EA or EIS.21

Specifically, FRA has determined that 

this final rule is categorically excluded 

from detailed environmental review 

pursuant to 23 CFR 771.116(c)(15), 

‘‘[p]romulgation of rules, the issuance of 

policy statements, the waiver or 

modification of existing regulatory 

requirements, or discretionary approvals 

that do not result in significantly 

increased emissions of air or water 

pollutants or noise.’’ 

The purpose of this rulemaking is to 

revise FRA’s State Action Plan 

requirements as mandated by the FAST 

Act. This rule does not directly or 

indirectly impact any environmental 

resources and will not result in 

significantly increased emissions of air 

or water pollutants or noise. Instead, the 

final rule is likely to result in safety 

benefits. In analyzing the applicability 

of a CE, FRA must also consider 

whether unusual circumstances are 

present that would warrant a more 

detailed environmental review.22 FRA 

has concluded that no such unusual 

circumstances exist with respect to this 

final regulation and it meets the 

requirements for categorical exclusion 

under 23 CFR 771.116(c)(15). 

Pursuant to Section 106 of the 

National Historic Preservation Act and 

its implementing regulations, FRA has 

determined this undertaking has no 

potential to affect historic properties.23

FRA has also determined that this 

rulemaking does not approve a project 

resulting in a use of a resource protected 

by Section 4(f).24

F. Executive Order 12898 

(Environmental Justice) 

Executive Order 12898, Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, and DOT 

Order 5610.2(a) 25 require DOT agencies 

to achieve environmental justice as part 

of their mission by identifying and 

addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects, 

including interrelated social and 


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26Public Law 104–4, 2 U.S.C. 1531 et seq. 

27 2 U.S.C. 1532. 

28 66 FR 28355 (May 22, 2001). 29 82 FR 16093 (Mar. 31, 2017). 

economic effects, of their programs, 

policies, and activities on minority 

populations and low-income 

populations. 

The DOT Order instructs DOT 

agencies to address compliance with 

Executive Order 12898 and 

requirements within the DOT Order in 

rulemaking activities, as appropriate. 

FRA has evaluated this final rule under 

Executive Order 12898 and the DOT 

Order and has determined it would not 

cause disproportionately high and 

adverse human health and 

environmental effects on minority 

populations or low-income populations. 

G. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 

1995,26 each Federal agency shall, 

unless otherwise prohibited by law, 

assess the effects of Federal regulatory 

actions on State, local, and tribal 

governments, and the private sector 

(other than to the extent such 

regulations incorporate requirements 

specifically set forth in law.) Section 

202 of the Act 27 further requires that 

before promulgating any general notice 

of proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in the expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any one year, 

and before promulgating any final rule 

for which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement 

detailing the effect on State, local, and 

tribal governments and the private 

sector. This final rule will not result in 

the expenditure, in the aggregate, of 

$100,000,000 or more in any one year 

and thus preparation of such a 

statement is not required. 

H. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 28 FRA evaluated this 

final rule in accordance with Executive 

Order 13211 and determined that this 

regulatory action is not a ‘‘significant 

energy action’’ within the meaning of 

the Executive order. 

Executive Order 13783, ‘‘Promoting 

Energy Independence and Economic 

Growth,’’ requires Federal agencies to 

review regulations to determine whether 

they potentially burden the 

development or use of domestically 

produced energy resources, with 

particular attention to oil, natural gas, 

coal, and nuclear energy resources.29

FRA determined this final rule will not 

burden the development or use of 

domestically produced energy 

resources. 

List of Subjects in 49 CFR Part 234 

Highway safety, Penalties, Railroad 

safety, Reporting and recordkeeping 

requirements, State and local 

governments. 

The Final Rule 

For the reasons discussed in the 

preamble, FRA is amending part 234 of 

chapter II, subtitle B of title 49, Code of 

Federal Regulations, as follows: 

PART 234—GRADE CROSSING 

SAFETY 

■ 1. The authority citation for part 234 

is revised to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20152, 

20160, 21301, 21304, 21311; Sec. 11401, Div. 

A, Pub. L. 114–94, 129 Stat. 1679 (49 U.S.C. 

22501 note); and 49 CFR 1.89. 

■ 2. In § 234.1, revise and republish 

paragraph (a) to read as follows: 

§ 234.1 Scope. 

(a) This part prescribes minimum— 

(1) Maintenance, inspection, and 

testing standards for highway-rail grade 

crossing warning systems; 

(2) Standards for the reporting of 

failures of highway-rail grade crossing 

warning systems and for the actions that 

railroads must take when such systems 

malfunction; 

(3) Requirements for certain identified 

States to update their existing State 

highway-rail grade crossing action plans 

and submit reports about the 

implementation of their existing plans 

and for the remaining States and the 

District of Columbia to develop State 

highway-rail grade crossing action 

plans; 

(4) Requirements that certain railroads 

establish systems for receiving toll-free 

telephone calls reporting various unsafe 

conditions at highway-rail grade 

crossings and pathway grade crossings, 

and for taking certain actions in 

response to those calls; and 

(5) Requirements for reporting to, and 

periodically updating information 

contained in, the U.S. DOT National 

Highway-Rail Crossing Inventory for 

highway-rail and pathway crossings. 

* * * * * 

■ 3. Revise § 234.5 by adding in 

alphabetical order definitions of 

‘‘Accident/incident,’’ ‘‘Pathway grade 

crossing,’’ and ‘‘State highway-rail grade 

crossing action plan or Action Plan’’ to 

read as follows: 

§ 234.5 Definitions. 

As used in this part: 

Accident/incident means any impact 

between railroad on-track equipment 

and a highway user at a highway-rail 

grade crossing or pathway grade 

crossing. The term ‘‘highway user’’ 

includes automobiles, buses, trucks, 

motorcycles, bicycles, farm vehicles, 

pedestrians, and all other modes of 

surface transportation motorized and 

un-motorized. 

* * * * * 

Pathway grade crossing means a 

pathway that crosses one or more 

railroad tracks at grade and that is— 

(1) Explicitly authorized by a public 

authority or a railroad; 

(2) Dedicated for the use of nonvehicular traffic, including pedestrians, 

bicyclists, and others; and 

(3) Not associated with a public 

highway, road, or street, or a private 

roadway. 

* * * * * 

State highway-rail grade crossing 

action plan or Action Plan means a 

document submitted to FRA for review 

and approval by a State of the United 

States (or the District of Columbia), 

which contains the elements required 

by § 234.11(e) to address safety at 

highway-rail and pathway grade 

crossings. 

* * * * * 

■ 4. Revise § 234.11 to read as follows: 

§ 234.11 State highway-rail grade crossing 

action plans. 

(a) Purpose. The purpose of this 

section is to reduce accident/incidents 

at highway-rail and pathway grade 

crossings nationwide by requiring States 

and the District of Columbia to develop 

or update highway-rail grade crossing 

action plans and implement them. This 

section does not restrict any other entity 

from adopting a highway-rail grade 

crossing action plan. This section also 

does not restrict any State or the District 

of Columbia from adopting a highwayrail grade crossing action plan with 

additional or more stringent 

requirements not inconsistent with this 

section. 

(b) New Action Plans. (1) Except for 

the 10 States identified in paragraph 

(c)(3) of this section, each State and the 

District of Columbia shall develop a 

State highway-rail grade crossing action 

plan that addresses each of the required 


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elements listed in paragraph (e) of this 

section and submit such plan to FRA for 

review and approval not later than 

February 14, 2022. 

(2) Each State and the District of 

Columbia shall submit its highway-rail 

grade crossing action plan electronically 

through FRA’s website in Portable 

Document Format (PDF). 

(c) Updated Action Plan and 

implementation report. (1) Each of the 

10 States listed in paragraph (c)(3) of 

this section shall develop and submit to 

FRA for review and approval an 

updated State highway-rail grade 

crossing action plan that addresses each 

of the required elements listed in 

paragraph (e) of this section, not later 

than February 14, 2022. 

(2) Each of the 10 States listed in 

paragraph (c)(3) of this section shall also 

develop and submit to FRA, not later 

than February 14, 2022, a report 

describing: 

(i) How the State implemented the 

State highway-rail grade crossing action 

plan that it previously submitted to FRA 

for review and approval; and 

(ii) How the State will continue to 

reduce highway-rail and pathway grade 

crossing safety risks. 

(3) The requirements of this paragraph 

(c) apply to the following States: 

Alabama, California, Florida, Georgia, 

Illinois, Indiana, Iowa, Louisiana, Ohio, 

and Texas. 

(d) Electronic submission of updated 

Action Plan and implementation report. 

Each of the 10 States listed in paragraph 

(d)(2) of this section shall submit its 

updated highway-rail grade crossing 

action plan and implementation report 

electronically through FRA’s website in 

PDF form. 

(e) Required elements for State 

highway-rail grade crossing action 

plans. Each State highway-rail grade 

crossing action plan described in 

paragraphs (b) and (c) of this section 

shall: 

(1) Identify highway-rail and pathway 

grade crossings that: 

(i) Have experienced at least one 

accident/incident within the previous 3 

years; 

(ii) Have experienced more than one 

accident/incident within the previous 5 

years; or 

(iii) Are at high-risk for accidents/ 

incidents as defined in the Action Plan. 

Each State or the District of Columbia 

that identifies highway-rail and 

pathway grade crossings that are at 

high-risk for accidents/incidents in its 

Action Plan shall provide a list of the 

factors that were considered when 

making this determination. At a 

minimum, these factors shall include: 

(A) Average annual daily traffic; 

(B) Total number of trains per day that 

travel through each crossing; 

(C) Total number of motor vehicle 

collisions at each crossing during the 

previous 5-year period; 

(D) Number of main tracks at each 

crossing; 

(E) Number of roadway lanes at each 

crossing; 

(F) Sight distance (stopping, corner 

and clearing) at each crossing; 

(G) Roadway geometry (vertical and 

horizontal) at each crossing; and 

(H) Maximum timetable speed; 

(2) Identify data sources used to 

categorize the highway-rail and pathway 

grade crossings in paragraph (e)(1) of 

this section; 

(3) Discuss specific strategies, 

including highway-rail grade crossing 

closures or grade separations, to 

improve safety at those crossings over a 

period of at least four years; 

(4) Provide an implementation 

timeline for the strategies discussed in 

paragraph (e)(3) of this section; and 

(5) Designate an official responsible 

for managing implementation of the 

State highway-rail grade crossing action 

plan. 

(f) Point of contact for State highwayrail grade crossing action plans. (1) 

When the State or the District of 

Columbia submits its highway-rail grade 

crossing action plan or updated Action 

Plan and implementation report 

electronically through FRA’s website, 

the following information shall be 

provided to FRA for the designated 

official described in paragraph (e)(5) of 

this section: 

(i) The name and title of the 

designated official; 

(ii) The business mailing address for 

the designated official; 

(iii) The email address for the 

designated official; and 

(iv) The daytime business telephone 

number for the designated official. 

(2) If the State or the District of 

Columbia designates another official to 

assume the responsibilities described in 

paragraph (e)(5) of this section before 

December 16, 2024, the State or the 

District of Columbia shall contact FRA 

and provide the information listed in 

paragraph (f)(1) of this section for the 

new designated official. 

(g) Review and approval. (1) FRA will 

update its website to reflect receipt of 

each new, updated, or corrected 

highway-rail grade crossing action plan 

submitted pursuant to this section. 

(2)(i) Within 60 days of receipt of each 

new, updated, or corrected highway-rail 

grade crossing action plan, FRA will 

conduct a preliminary review of the 

Action Plan to ascertain whether the 

elements prescribed in paragraph (e) of 

this section are adequately addressed in 

the plan. 

(ii) Each new, updated, or corrected 

State highway-rail grade crossing action 

plan shall be considered conditionally 

approved for purposes of this section 

sixty (60) days after receipt by FRA 

unless FRA notifies the designated 

official described in paragraph (e)(5) of 

this section that the highway-rail grade 

crossing action plan is incomplete or 

deficient. 

(iii) FRA reserves the right to conduct 

a more comprehensive review of each 

new, updated, or corrected State 

highway-rail grade crossing action plan 

within 120 days of receipt. 

(3) If FRA determines that the new, 

updated, or corrected highway-rail 

grade crossing action plan is incomplete 

or deficient: 

(i) FRA will provide email 

notification to the designated official 

described in paragraph (e)(5) of this 

section of the specific areas in which 

the Action Plan is deficient or 

incomplete and allow the State or the 

District of Columbia to complete the 

plan and correct the deficiencies 

identified. 

(ii) Within 60 days of the date of 

FRA’s email notification identifying the 

specific areas in which the highway-rail 

grade crossing action plan is incomplete 

or deficient, the State or District of 

Columbia shall correct all deficiencies 

and submit the corrected State highwayrail grade crossing action plan to FRA 

for approval. The corrected highway-rail 

grade crossing action plan shall be 

submitted electronically through FRA’s 

website in PDF format. 

(4)(i) When a new, updated, or 

corrected State highway-rail grade 

crossing action plan is fully approved, 

FRA will provide email notification to 

the designated official described in 

paragraph (e)(5) of this section. 

(ii) FRA will make each fullyapproved State highway-rail grade 

crossing action plan publicly available 

for online viewing. 

(iii) Each State and the District of 

Columbia shall implement its fullyapproved highway-rail grade crossing 

action plan. 

(h) Condition for grants. The Secretary 

of Transportation may condition the 

awarding of any grants under 49 U.S.C. 

ch. 244 on the State’s or District of 

Columbia’s submission of an FRAapproved State highway-rail grade 

crossing action plan under this section. 

§ 234.301 [Amended] 

■ 5. Amend § 234.301 by removing the 

definition of ‘‘Pathway grade crossing.’’ 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 80661 

Issued in Washington, DC. 

Quintin C. Kendall, 

Deputy Administrator, Federal Railroad 

Administration. 

[FR Doc. 2020–26064 Filed 12–11–20; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No.: 201207–0328] 

RIN 0648–BJ18 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; 

Amendment 21 to the Summer 

Flounder, Scup, and Black Sea Bass 

Fishery Management Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This action implements 

approved measures for the Mid-Atlantic 

Fishery Management Council’s 

Amendment 21 to the Summer 

Flounder, Scup, and Black Sea Bass 

Fishery Management Plan. This rule 

changes the summer flounder 

commercial state quota allocation 

system and fishery management plan 

goals and objectives. This action is 

intended to increase equity in state 

allocations when annual coastwide 

commercial quotas are at or above 

historical averages, while recognizing 

the economic reliance coastal 

communities have on the state 

allocation percentages currently in 

place. 

DATES: Effective January 1, 2021. 

ADDRESSES: Copies of Amendment 21, 

including the Environmental Impact 

Statement, the Regulatory Impact 

Review, and the Initial Regulatory 

Flexibility Analysis (EIS/RIR/IRFA) 

prepared in support of this action are 

available from Dr. Christopher M. 

Moore, Executive Director, Mid-Atlantic 

Fishery Management Council, Suite 201, 

800 North State Street, Dover, DE 19901. 

The supporting documents are also 

accessible via the internet at: http://

www.mafmc.org. 

A copy of the Record of Decision 

(ROD) for the Final EIS (FEIS) can be 

obtained from the NOAA Fisheries 

Greater Atlantic Regional Fisheries 

Office, 55 Great Republic Drive, 

Gloucester, MA 01930. 

FOR FURTHER INFORMATION CONTACT: 

Emily Keiley, Fishery Policy Analyst, 

(978) 281–9116. 

SUPPLEMENTARY INFORMATION: 

Background 

The Mid-Atlantic Fishery 

Management Council and the Atlantic 

States Marine Fisheries Commission 

cooperatively manage summer flounder 

under the provisions of the Summer 

Flounder, Scup, and Black Sea Bass 

Fishery Management Plan (FMP). The 

joint FMP became effective in 1988, 

establishing measures to manage 

summer flounder fisheries. Summer 

flounder is an important commercial 

and recreational species. Currently, 60 

percent of the total allowable landings 

limit (TAL) is allocated to the 

commercial fishery (coastwide annual 

commercial quota), with the remaining 

40 percent allocated to the recreational 

fishery. Available quotas are fully 

utilized by both sectors in most fishing 

years. The coastwide annual 

commercial quota is allocated to each of 

the states in the management unit 

(Maine-North Carolina) on a percentage 

basis. The existing commercial state-bystate allocations were last modified in 

1993. 

Amendment 21 was approved by the 

Council and Commission in March 

2019. A notice of availability (NOA) for 

the amendment published in the 

Federal Register on July 29, 2020 (85 FR 

45571), with a comment period ending 

on September 28, 2020. We published a 

proposed rule in the Federal Register on 

August 12, 2020 (85 FR 48660), with a 

comment period ending on September 

11, 2020. 

The Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) allows us to 

approve, partially approve, or 

disapprove measures recommended by 

the Council in an amendment based on 

whether the measures are consistent 

with the fishery management plan, plan 

amendment, the Magnuson-Stevens Act 

and its National Standards, and other 

applicable law. After considering public 

comment on the NOA and proposed 

rule, we approved Amendment 21 on 

October 19, 2020. This rule implements 

the management measures in 

Amendment 21. The details of the 

development of the measures in 

Amendment 21 were described in the 

NOA and proposed rule, and are not 

repeated here. 

Approved Measures 

State Commercial Allocations 

Amendment 21 changes the state-bystate commercial quota allocations for 

summer flounder when the coastwide 

quota exceeds 9.55 million lb (4,332 

mt). When the coastwide quota is 9.55 

million lb (4,332 mt) or less, the quota 

will be distributed according to the 

current allocation percentages. In years 

when the coastwide quota exceeds 9.55 

million lb (4,332 mt), any additional 

quota, beyond this threshold, will be 

distributed in equal shares to all states 

except Maine, Delaware, and New 

Hampshire, which would split 1 percent 

of the additional quota. The Council and 

Board selected this allocation 

alternative to balance preservation of 

historical state access and infrastructure 

at recent quota levels, while providing 

equitability among states when the stock 

and quota are at high levels. 

TABLE 1—APPROVED STATE-BY-STATE

SUMMER FLOUNDER QUOTA ALLOCATIONS

State 

Allocation 

of baseline 

quota 

≤9.55 mil lb 

(4,332 

metric tons) 

(percent) 

Allocation 

of additional 

quota beyond 

9.55 mil lb 

(4,332 

metric tons) 

(percent) 

ME ............ 0.04756 0.333 

NH ............. 0.00046 0.333 

MA ............ 6.82046 12.375 

RI .............. 15.68298 12.375 

CT ............. 2.25708 12.375 

NY ............. 7.64699 12.375 

NJ ............. 16.72499 12.375 

DE ............. 0.01779 0.333 

MD ............ 2.03910 12.375 

VA ............. 21.31676 12.375 

NC ............. 27.44584 12.375 

Total ... 100 100 

Concurrent to this action we are 

considering changes to the 2021 

specifications for summer flounder, 

scup, and black sea bass (85 FR 73253; 

November 17, 2020). If the revised 2021 

summer flounder acceptable biological 

catch and corresponding specifications 

are approved, state allocations of 

summer flounder would be initially 

distributed as shown in Table 2. Final 

2021 allocations, which will take into 

account any 2019 or 2020 overages 

through October 31, 2020, will be 

provided in the final rule establishing 

the 2021 specifications. 


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