[Federal Register Volume 62, Number 153 (Friday, August 8, 1997)]
[Proposed Rules]
[Pages 42733-42734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20991]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[FRA Docket No. RSGC-6; Notice No. 4]
RIN 2130-AA92


Selection and Installation of Grade Crossing Warning Systems; 
Termination of Rulemaking

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

ACTION: Termination of rulemaking.

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SUMMARY: This notice terminates rulemaking action in FRA Docket No. 
FSGC-6. In its Notice of Proposed Rulemaking (NPRM), FRA proposed to 
prohibit railroads from unilaterally selecting and installing highway-
rail grade crossing warning systems at public highway-rail crossings. 
FRA also proposed to require that railroads furnish state highway 
authorities with information necessary for state grade crossing project 
planning and prioritization purposes. Termination of this rulemaking is 
based on public comments and FRA's determination that railroad safety 
will not be best served by issuance of such a regulation at this time.

FOR FURTHER INFORMATION CONTACT:
Bruce F. George, Director, Highway-Rail Crossing and Trespasser 
Programs Division, Office of Safety, FRA, 400 Seventh Street, S.W., 
Washington, D.C. 20590 (telephone 202-632-3305), or Mark Tessler, Trial 
Attorney, Office of Chief Counsel, FRA, 400 Seventh Street, S.W., 
Washington, D.C. 20590 (telephone 202-632-3171).

SUPPLEMENTARY INFORMATION: On March 2, 1995, FRA published in the 
Federal Register (60 FR 11649) an NPRM which was meant to clarify the 
respective responsibilities of railroads and state and local 
governments regarding the selection and installation of highway-rail 
grade crossing warning systems. Public hearings were held on the 
proposal on June 6 and 7, 1995. The public comment period closed on 
June 14, 1995. However, FRA continued to receive comments and to date 
has received in excess of 3,000 comments in this rulemaking. All 
comments have been considered by FRA, including those received after 
June 14, 1995, in accord with FRA's policy to consider late filed 
comments to the extent possible. A wide range of views were expressed 
in the public hearings and in written comments submitted to the public 
docket. A high proportion of the comments were form letters and 
preprinted postcards expressing opposition to the proposal.
    Subsequent to issuance of the NPRM, a school bus stopped at a 
highway-rail grade crossing in Fox River Grove, Illinois, was struck by 
a commuter train. Seven students died. Following the accident the 
Secretary of Transportation established a Grade Crossing Safety Task 
Force (Task Force) to build upon the Department's 1994 Rail-Highway 
Crossing Safety Action Plan. The Task Force reported its findings to 
the Secretary on March 1, 1996. The Executive Summary of the report 
stated in part:

    [T]he report recommends 24 specific follow-on actions to address 
both physical and procedural deficiencies. In practice, the 
responsibility for public grade crossings resides with State and 
local governments, railroads, and transit agencies. Recognizing the 
constrained budgets that are available to the private sector and 
State and local authorities, the report emphasizes rethinking 
existing practices--not requiring new ones from a regulatory 
approach. This reliance on existing opportunities is emphasized by 
recommendations that encourage grade crossing safety through 
coordinated inspections, law enforcement, and driver education.

As the Task Force Report states, ``[t]his * * * report should not be 
viewed as a surrogate for the Action Plan, but as a supplement which 
focuses on the planning, construction, maintenance, operation, and 
inspection activities involving rail crossings. The Task Force directed 
its attention to those grade crossing issues for which there were no 
well-defined standards, practices, or information. It was in these five 
problem areas outside the scope of the Action Plan, that the Task Force 
felt additional improvements in grade crossing safety could be made.''
    FRA is continuing its implementation of the Action Plan's 
recommendations while at the same time it works to ensure that the 
recommendations of the Safety Task Force are carried out.

[[Page 42734]]

The NPRM

    The impetus in proposing the NPRM was the goal, as stated in the 
Action Plan, to ``review the allocation of responsibilities for the 
selection and installation of warning devices and the potential for 
uniform nationwide standards.'' The NPRM, together with the subsequent 
hearings and wide range of comments stimulated extensive discussion and 
debate on the issue. FRA notes that certain groups generated interest 
and comments by claiming that the proposed rule ``would shield railroad 
companies from liability when their negligence contributes to such 
accidents.'' This and similar claims made in mass mailings to FRA are 
clearly misleading statements. FRA believes that there are valid policy 
arguments on both sides of the issue in this debate and that resorting 
to misleading statements apparently in order to increase the volume of 
comments does not lead to helpful public airing of legitimate concerns. 
Spreading such obvious misinformation can only take advantage of well 
meaning individuals who have not had the opportunity to read the 
proposed rule themselves, but who rely on the integrity and accuracy of 
those providing the information. FRA is disappointed that such groups 
apparently felt that the strength of their legitimate objections to the 
rule were insufficient.
    While some of the debate surrounding the proposal was based on 
incorrect information, much of the discussion raised valid questions 
regarding what should be the proper role of railroads, state and local 
governments, and the federal government in the selection and 
installation of grade crossing warning systems. The discussion remained 
on a general and conceptual level however. The overwhelming majority of 
comments were conclusory in nature and did not add hard data which 
could be helpful to FRA in its decision making. Opponents claimed that 
the rule would effectively shift tort liability from railroads to state 
and local governments. Opponents of the rule also stated that there was 
no evidence that money saved by railroads would be spent on grade 
crossing safety and that the rule would remove any incentive a railroad 
may have to participate in crossing safety programs. Rule proponents, 
on the other hand, claimed that safety would be enhanced by more 
rational grade crossing planning.
    Absent from virtually all rule comments and testimony, however, 
were data supporting the conclusions drawn from the rule. In the NPRM, 
FRA stated that it ``believes that railroads have many powerful 
incentives to continue their longstanding policy of voluntarily 
providing matching funds for federally funded grade crossing projects, 
comment is sought concerning whether this proposal will affect the 
level of railroad participation in such projects.'' FRA again received 
only conclusory comments rather than data on past, present or projected 
levels of participation.

Termination of rulemaking

    FRA continues to believe that the proper relationship between 
railroads and state and local governments in terms of selection and 
installation of warning systems is as proposed in the NPRM: railroad 
should furnish governmental authorities with sufficient information to 
enable those authorities to make rational selection and installation 
decisions. However, at this time, in light of the lack of supporting 
hard data in the record and the magnitude of other regulatory and 
program safety initiatives being undertaken by FRA, this rulemaking is 
being terminated.
    We note that this rulemaking has been a worthwhile first step in 
addressing the issue of allocation of responsibility for the selection 
and installation of warning devices and the potential for uniform 
nationwide standards in this area. We are confident that further steps 
in addressing these issues will build upon the information and 
discussion generated by this proceeding.
    In light of the foregoing, FRA is hereby terminating this 
rulemaking.

    Issued in Washington, D.C. on August 5, 1997.
Jolene M. Molitoris,
Administrator.
[FR Doc. 97-20991 Filed 8-7-97; 8:45 am]
BILLING CODE 4910-06-P