11646 Federal Register / Vol. 60, No. 41 / Thursday, March 2, 1995 / Proposed Rules

foreign carrier’s primary markets, and

the ability and incentives of the foreign

carrier to discriminate against

unaffiliated U.S. carriers.

In addition, the Notice proposes a

specified level of foreign carrier

ownership in a U.S. carrier at which the

proposed entry standard would apply.

The Commission asks whether it is

desirable to consider an applicant to be

‘‘affiliated’’ with a foreign carrier for

purposes of the new rules when the

foreign carrier acquires an ownership

interest of a certain minimum level or

a controlling interest at any level. The

Notice requests comment on whether

the minimum level of ownership should

be set at greater than ten percent,

twenty-five percent, or some other level

of the capital stock of the applicant.

The Commission also seeks comment

on whether the affiliation standard it

adopts should replace the current

affiliation standard it uses for purposes

of classifying an affiliated U.S. carrier as

dominant or nondominant on a

particular U.S. international route,

based on the market power of its foreign

carrier affiliate on the foreign end of the

route. In addition, the Commission

requests comment on whether certain

safeguards applied to dominant carriers

should be modified to improve their

effectiveness. It additionally asks for

comment on other proposed

nondiscrimination safeguards, including

safeguards that would apply to all U.S.

international carriers. The Commission

also clarifies the definition of a

facilities-based carrier and requests

comment on its proposal to codify that

definition in this proceeding.

Finally, the Notice asks whether the

goals of the proceeding would be served

by incorporating the proposed effective

market access test as an element of the

Section 310(b)(4) public interest

analysis applicable to foreign entities

seeking to acquire an indirect

ownership interest of more than 25

percent in U.S. radio licensees. Thus,

the Notice asks whether the

Commission’s evaluation of the public

interest should consider whether the

primary markets of the foreign entity

offer effective market access to U.S.

licensees to provide the same type of

radio-based services as requested in the

United States. The Notice also seeks

comment on other public interest factors

the Commission should consider.

The Notice seeks public comment on

whether these proposals are

administratively feasible and whether

these approaches or other alternatives

will best serve the Commission’s goals.

List of Subjects in 47 CFR Part 63

Communications common carriers.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 95–5127 Filed 3–1–95; 8:45 am]

BILLING CODE 6712–01–M

DEPARTMENT OF ENERGY

48 CFR Parts 933 and 970

Regulation Identifier Number 1991–

AB20 Acquisition Regulation;

Department of Energy Management

and Operating Contracts

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department of Energy

(DOE) today issues a Notice of Proposed

Rulemaking to amend the Department of

Energy Acquisition Regulation (DEAR)

to modify requirements for management

and operating contractor purchasing

systems. DEAR subpart 970.71 will be

revised to identify certain purchasing

system objectives and standards;

eliminate the application of the

‘‘Federal norm’’; and place greater

reliance on commercial practices.

DATES: Written comments on the

proposed rulemaking must be received

on or before May 1, 1995.

ADDRESSES: Comments on the proposed

rulemaking should be addressed to the

U.S. Department of Energy, Director,

Procurement and Property Review and

Evaluation Division (HR–525.1),

Attention: James J. Cavanagh, 1000

Independence Avenue SW.,

Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT:

James J. Cavanagh, Director,

Procurement and Property Review and

Evaluation Division (HR–525.1), U.S.

Department of Energy, 1000

Independence Avenue, SW.,

Washington, DC 20585; telephone 202–

586–8257.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background.

II. Section-by-Section Analysis.

III. Public Comments.

IV. Procedural Requirements.

A. Review Under Executive Order 12866.

B. Review Under the National

Environmental Policy Act.

C. Review Under the Paperwork Reduction

Act.

D. Review Under the Regulatory Flexibility

Act.

E. Review Under Executive Order 12612.

F. Review Under Executive Order 12778.

G. Public Hearing Determination.

I. Background

The Government-wide approach to

evaluating contractor purchasing

systems, as set forth in Federal

Acquisition Regulation (FAR) Subpart

44.301, is to ‘‘evaluate the efficiency

and effectiveness with which the

contractor spends Government funds

and complies with the Government

policy when subcontracting.’’ Most

Federal contracts require purchases to

be made in accordance with the

applicable laws and the terms and

conditions of the contract, with minimal

references back to acquisition

regulations. The policy for the extent of

reviews of these purchasing systems is

set forth at FAR 44.303.

Unlike other contractors, however, a

DOE management and operating

contractor historically has been

expected to conform its purchasing

practices to the ‘‘Federal norm.’’ As

provided at the DEAR 970.7103, the

Federal norm is an ‘‘evolving concept’’,

which attempts to balance commercial

purchasing practices with Federal

procurement principles embodied in

law and regulation. The DEAR identifies

a number of tenets of Federal policy and

practices to which DOE’s management

and operating contractors must adhere.

As a result of the Federal norm, and

iterations of related reviews, audits, and

protest decisions, management and

operating contractor purchasing has,

over the years, become increasingly

Federal-like, replacing efficient and

effective commercial business practices.

In accordance with the objectives of

the National Performance Review and

the Secretary of Energy’s Contract

Reform Team Report, the Department

intends to revise its expectations for

management and operating contractor

purchasing systems by eliminating the

concept of the ‘‘Federal norm.’’ In lieu

of the detailed tenets contained in

DEAR subpart 970.71, which have

resulted in the inefficient layering of

non-commercial systems and practices,

the Department has identified certain

purchasing system objectives and

standards which it believes are common

to superior purchasing activities,

whether they be commercial or public.

In addition, as the Department

eliminates the concept of the ‘‘Federal

norm,’’ the Department intends that any

disagreements with management and

operating contractor purchasing

decision(s) be a matter to be settled

between the contractor and potential

subcontractor(s). Such disagreements

are typically handled in this manner in

the commercial sector. The Department

expects that its management and

operating contractors shall handle any
Federal Register / Vol. 60, No. 41 / Thursday, March 2, 1995 / Proposed Rules 11647

such disagreements in an open, fair, and

reasonable manner, and endorses the

use of ombudsmen and alternative

disputes resolution procedures for that

purpose. Accordingly, by this action,

the Department proposes to delete

DEAR 970.7107 which provides

guidelines for the consideration of

subcontractor level protests. This is

consistent with the General Accounting

Office proposed rule published at 60 FR

5871, January 31, 1995. It is the

intention of the Department to

incorporate the changes made by this

proposed rule into existing management

and operating contracts as soon as

practicable after the effective date of a

final rule.

II. Section-by-Section Analysis

1. Section 933.170, Subcontract level

protests, is removed.

2. The revision to paragraph (a) of the

clause, Contractor Purchasing System, at

970.5204–22 provides guidance for a

management and operating contract

acquisition system consistent with

proposed revisions to section 970.7103.

3. Section 970.7101, General, is

revised by removing paragraphs (c) and

(d).

4. The revision to section 970.7102(a)

removes the parenthetical which

contains references which will no

longer exist when sections 970.7104 and

970.7108 are removed in their entirety.

Section 970.7102(b)(3) is revised to

provide that review of individual

purchasing actions shall be pursuant to

FAR Subpart 44.2. Section

970.7102(b)(4) is revised to provide that

periodic appraisals shall be in

accordance with established policies in

section 970.7103.

5. The revisions to section 970.7103

eliminate the concept of the ‘‘Federal

norm,’’ and establish contractor

purchasing systems objectives,

expectations, and standards.

6. Section 970.7104, Conditions of

purchasing by management and

operating contractors, is removed. The

DOE believes it is not necessary to

retain this section since many of the

requirements comply with provisions of

statutes and are already reflected in

contract clauses. These requirements

will, therefore, continue to be applicable

as contractual requirements. Some of

the requirements, however, are not

specifically prescribed in other parts of

the DEAR. The Department will review

such requirements prior to finalization

of this proposed rule and may

redesignate appropriate paragraphs, in

the final rule, to other parts of the

DEAR, if necessary. If such

requirements are identified, the

Department will publish a Federal

Register notice, prior to issuing a final

rule, listing the paragraphs being

considered for redesignation.

7. Section 970.7106, Procedures for

handling mistakes relating to

management and operating contractor

purchases, is removed.

8. Section 970.7107, Protest of

management and operating contractor

procurements, is removed.

III. Public Comments

DOE invites interested persons to

participate by submitting data, views, or

arguments with respect to the DEAR

amendments set forth in this rule. Three

copies of written comments should be

submitted to the address indicated in

the ‘‘ADDRESSES’’ section of this rule.

All comments received will be available

for public inspection during normal

work hours. All written comments

received by the date indicated in the

‘‘DATES’’ section of this notice will be

carefully assessed and fully considered

prior to the effective date of these

amendments as a final rule. Any

information considered to be

confidential must be so identified and

submitted in writing, one copy only.

DOE reserves the right to determine the

confidential status of the information

and to treat it according to its

determination in accordance with 10

CFR 1004.11.

IV. Procedural Requirements

A. Review Under Executive Order 12866

This regulatory action has been

determined not to be a ‘‘significant

regulatory action’’ under Executive

Order 12866, ‘‘Regulatory Planning and

Review,’’ (58 FR 51735, October 4,

1993).

Accordingly, this action was not

subject to review under the Executive

Order by the Office of Information and

Regulatory Affairs.

B. Review Under the National

Environmental Policy Act

Pursuant to the Council on

Environmental Quality Regulations (40

CFR 1500–1508), the Department has

established guidelines for its

compliance with the provisions of the

National Environmental Policy Act

(NEPA) of 1969 (42 U.S.C. 4321 et seq.).

Pursuant to appendix A of subpart D of

10 CFR part 1021, National

Environmental Policy Act Implementing

Procedures (Categorical Exclusion A6),

the Department of Energy has

determined that this proposed rule is

categorically excluded from the need to

prepare an environmental impact

statement or environmental assessment.

C. Review Under the Paperwork

Reduction Act

To the extent that new information

collection or recordkeeping

requirements are imposed by this

rulemaking, they are provided for under

Office of Management and Budget

paperwork clearance package No. 1910–

0300. No new information collection is

proposed by this rule.

D. Review Under the Regulatory

Flexibility Act

This proposed rule was reviewed

under the Regulatory Flexibility Act of

1980, Pub. L. 96–354, which requires

preparation of a regulatory flexibility

analysis for any rule which is likely to

have significant economic impact on a

substantial number of small entities.

This proposed rule will have no impact

on interest rates, tax policies or

liabilities, the cost of goods or services,

or other direct economic factors. It will

also not have any indirect economic

consequences, such as changed

construction rates. DOE certifies that

this rule will not have a significant

economic impact on a substantial

number of small entities and, therefore,

no regulatory flexibility analysis has

been prepared.

E. Review Under Executive Order 12612

Executive Order 12612 entitled

‘‘Federalism,’’ 52 FR 41685 (October 30,

1987), requires that regulations, rules,

legislation, and any other policy actions

be reviewed for any substantial direct

effects on States, on the relationship

between the Federal Government and

the States, or in the distribution of

power and responsibilities among

various levels of Government. If there

are sufficient substantial direct effects,

then the Executive Order requires

preparation of a federalism assessment

to be used in all decisions involved in

promulgating and implementing a

policy action. The Department of Energy

has determined that this proposed rule

will not have a substantial direct effect

on the institutional interests or

traditional functions of States.

F. Review Under Executive Order 12778

Section 2 of Executive Order 12778

instructs each agency to adhere to

certain requirements in promulgating

new regulations and reviewing existing

regulations. These requirements, set

forth in sections 2(a) and (b)(2), include

eliminating drafting errors and needless

ambiguity, drafting the regulations to

minimize litigation, providing clear and

certain legal standards for affected legal

conduct, and promoting simplification

and burden reduction. Agencies are also

instructed to make every reasonable
11648 Federal Register / Vol. 60, No. 41 / Thursday, March 2, 1995 / Proposed Rules

effort to ensure that the regulation:

specifies clearly any preemptive effect,

effect on existing Federal law or

regulation, and retroactive effect;

describes any administrative

proceedings to be available prior to

judicial review and any provisions for

the exhaustion of such administrative

proceedings; and defines key terms.

DOE certifies that this rule meets the

requirements of sections 2(a) and 2(b) of

Executive Order 12778.

G. Public Hearing Determination

DOE has concluded that this proposed

rule does not involve any significant

issues of law or fact. Therefore,

consistent with 5 U.S.C. 553, DOE has

not scheduled a public hearing.

List of Subjects in 48 CFR Parts 933 and

970

Government procurement.

Issued in Washington, D.C. on February 24,

1995.

Richard H. Hopf,

Deputy Assistant Secretary for Procurement

and Assistance Management.

For the reasons set forth in the

preamble, chapter 9 of title 48 of the

Code of Federal Regulations is proposed

to be amended as set forth below.

PART 933—PROTESTS, DISPUTES,

AND APPEALS

1. The authority citation for part 933

continues to read as follows:

Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c)

933.170 [Removed]

2. Section 933.170 is removed.

PART 970—DOE MANAGEMENT AND

OPERATING CONTRACTS

3. The authority citation for part 970

continues to read as follows:

Authority: Sec. 161 of the Atomic Energy

Act of 1954 (42 U.S.C. 2201), sec. 644 of the

Department of Energy Organization Act, Pub.

L. 95–91 (42 U.S.C. 7254), sec. 201 of the

Federal Civilian Employee and Contractor

Travel Expenses Act of 1985 (41 U.S.C. 420)

and sec. 1534 of the Department of Defense

Authorization Act, 1986, Pub. L. 99–145 (42

U.S.C. 7256a), as amended.

4. At 970.5204–22, revise paragraph

(a) of the clause to read as follows:

970.5204–22 Contractor purchasing

system.

(a) The contractor shall develop,

implement, and maintain formal

policies, practices and procedures to be

used in the award of subcontracts

consistent with DEAR 970.71. The

contractor’s purchasing system and

methods shall be fully documented,

consistently applied, and acceptable to

DOE in accordance with DEAR

970.7102. The contractor’s purchasing

performance will be evaluated against

agreed-upon criteria in accordance with

the performance criteria and measures

clause(s) set forth elsewhere in this

contract. DOE reserves the right at any

time to require that the contractor

submit for approval any or all purchases

under this contract. The Contractor shall

not purchase any item or service the

purchase of which is expressly

prohibited by the written direction of

DOE and shall use such special and

directed sources as may be expressly

required by the DOE contracting officer.

* * * * *

970.7101 [Amended]

5. Section 970.7101 is amended by

removing paragraphs (c) and (d).

970.7102 [Amended]

6. Section 970.7102 is amended at:

paragraph (a) to remove the

parenthetical at the end of the

paragraph; paragraph (b)(3) by removing

the words ‘‘to assure that management

and operating contractors implement

DOE policies and requirements as

defined in this subpart, in accordance

with the contractor’s accepted system

and methods’’ and adding in its place

the words ‘‘pursuant to FAR 44.2’’; and

paragraph (b)(4) by removing ‘‘Subpart

944.3 and 970.7108’’ and adding in its

place ‘‘970.7103.’’

970.7103 [Revised]

7. Section 970.7103 is revised to read

as follows: 970.7103 Contractor

purchasing system.

The following shall apply to the

purchasing systems of management and

operating contractors:

(a) The objective of a management and

operating contractor’s purchasing

system is to deliver to its customers on

a timely basis those best value products

and services necessary to accomplish

the purposes of the Government’s

contract. To achieve this objective,

contractors are expected to use their

experience, expertise and initiative

consistent with this subpart.

(b) The purchasing systems and

methods used by management and

operating contractors shall be welldefined, consistently applied, and shall

follow purchasing practices appropriate

for the requirement and dollar value of

the purchase. It is anticipated that

purchasing practices and procedures

will vary among contractors and

according to the type and kinds of

purchases to be made.

(c) Contractor purchases are not

Federal procurements, and are not

directly subject to the Federal

Acquisition Regulation. Nonetheless,

certain Federal laws, Executive Orders,

and regulations may affect contractor

purchasing, as required by statute,

regulation, or contract terms and

conditions.

(d) Contractor purchasing systems

shall identify and apply the best in

commercial purchasing practices and

procedures (although nothing precludes

the adoption of Federal procurement

practices and procedures) to achieve

system objectives. Where specific

requirements do not otherwise apply,

the contractor purchasing system shall

provide for appropriate measures to

ensure:

(1) Acquisition of quality products

and services at fair and reasonable

prices;

(2) Use of capable and reliable

subcontractors who either:

(i) Have track records of successful

past performance, or

(ii) Can demonstrate a current

superior ability to perform;

(3) Minimization of acquisition leadtime and administrative costs of

purchasing;

(4) Use of effective competitive

techniques;

(5) Reduction of performance risks

associated with subcontractors, and

facilitation of quality relationships

which can include techniques such as

partnering agreements, ombudsmen,

and alternative disputes procedures.

(6) Use of self-assessment and

benchmarking techniques to support

continuous improvement in purchasing;

(7) Maintenance of the highest

professional and ethical standards; and

(8) Maintenance of file documentation

appropriate to the value of the purchase

and which is adequate to establish the

propriety of the transaction and the

price paid.

970.7104 through 970.7104–47, 970.7106,

970.7107 [Removed]

8. Sections 970.7104 through

970.7104–47 970.7106, and 970.7107 are

removed.

[FR Doc. 95–5173 Filed 3–1–95; 8:45 am]

BILLING CODE 6450–01–P
Federal Register / Vol. 60, No. 41 / Thursday, March 2, 1995 / Proposed Rules 11649

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[FRA Docket No. RSGC–6; Notice No. 1]

RIN 2130–AA92

Selection and Installation of Grade

Crossing Warning Systems; Notice of

Proposed Rulemaking

AGENCY: Federal Railroad

Administration (FRA), Department of

Transportation (DOT).

ACTION: Notice of Proposed Rulemaking

(NPRM).

SUMMARY: FRA proposes to prohibit

railroads from unilaterally selecting and

installing highway-rail grade crossing

warning systems at public highway-rail

crossings. FRA further proposes to

require that railroads furnish state

highway authorities with information

necessary for state grade crossing project

planning and prioritization purposes.

DATES: (1) Written comments must be

received no later than May 16, 1995.

Comments received after that date will

be considered to the extent possible

without incurring additional expense or

delay.

(2) A public hearing will be held at

9:30 a.m. on May 9, 1995. Any person

who wishes to speak at the hearing

should notify the FRA Docket Clerk at

least five working days before to the

hearing, by telephone or by mail.

ADDRESSES: (1) Written comments

should be submitted to the Docket

Clerk, Office of Chief Counsel, FRA, 400

Seventh Street, SW., Washington, DC

20590. Persons desiring to be notified

that their written comments have been

received by FRA should submit a

stamped, self-addressed postcard with

their comments. The Docket Clerk will

indicate on the postcard the date on

which the comments were received and

will return the card to the addressee.

Written comments will be available for

examination, both before and after the

closing date for comments, during

regular business hours in Room 8201 of

the Nassif Building at the above address.

(2) A public hearing will be held in

room 2230 of the Nassif Building, 400

Seventh Street, SW., Washington, DC

Persons desiring to speak at the hearing

should notify the Docket Clerk by

telephone (202–366–0628) or by writing

to the Docket Clerk at the address above.

FOR FURTHER INFORMATION CONTACT:

Bruce F. George, Chief, Highway-Rail

Crossing and Trespasser Programs

Division, Office of Safety, FRA, 400

Seventh Street, SW., Washington, DC

20590 (telephone 202–366–0533), or

Mark Tessler, Trial Attorney, Office of

Chief Counsel, FRA, 400 Seventh Street,

SW., Washington, DC 20590 (telephone

202–366–0628).

SUPPLEMENTARY INFORMATION: This

NPRM clarifies the respective

responsibilities of railroads and state

and local governments regarding the

selection and installation of highwayrail grade crossing warning systems.

This proposal is issued to eliminate

confusion and uncertainty as to the role

of railroads in the selection and

installation process. FRA expects the

proposed rules to ‘‘substantially

subsume’’ the subject matter of

railroads’ selection and installation of

highway rail grade crossing warning

systems and as such will preempt state

laws covering the same subject matter.

Background

Highway-rail grade crossings present

inherent risks to users, including

motorists, pedestrians, railroad

passengers and railroad employees. Of

the more than 168,000 public highwayrail grade crossings in the nation, only

28,100 are fully equipped with

automatic lights, gates and bells; fewer

than 1,000 of the 108,000 private

crossings are so equipped. The vast

majority of public crossings (and private

crossings) are equipped with only

passive warning devices such as

crossbucks. Engineering improvements

at individual crossings, education of the

public, and enforcement of highway

traffic laws have reduced accidents and

casualties at highway-rail crossings.

Since 1978, accidents and fatalities have

decreased dramatically despite

increased highway usage, stable rail

traffic levels, and increased train

speeds. However, the present loss of

life, injuries and property damage are

still unacceptable. Highway-rail

collisions are the number one cause of

death in the entire railroad industry, far

surpassing employee or passenger

fatalities. Additionally, the proportion

of severe accidents (i.e., those likely to

result in fatalities) is rising. Nearly

4,900 collisions occurred between

highway users and on-track railroad

equipment in 1993. More than 600

people were killed and over 1,800 were

seriously injured in these collisions.

In 1973 Congress first established the

Rail-Highway Crossing Program (section

130 program) to improve highway-rail

crossing safety. Continuous federal

funding since then has made more than

$3 billion available in improvement

funds, representing more than 90% of

project costs under this program.

Because highway-rail grade crossing

safety is primarily achieved through

highway traffic control, DOT’S Federal

Highway Administration (FHWA) has

oversight responsibility for the program.

See 49 CFR 1.48.

State Safety Prioritization Process

FHWA regulations provide uniform

federal standards for all highway traffic

control systems, including those at

highway-rail crossings. The federal

government, rather than dictating the

specific type of warning system to be

installed at each of the nation’s 168,000

public grade crossings, has established

the outline of the required planning and

selection process. FHWA has adopted

regulations governing the process by

which states are to establish priorities

for implementing highway safety

improvement projects, including

projects for elimination of hazards of

highway-rail grade crossings.

FHWA’s regulations detail the

uniform planning process involved in

selecting the crossings to be improved

(23 CFR Part 924.) The planning

component of a state’s highway safety

improvement program is required to

incorporate a process for collecting and

maintaining a record of accident, traffic,

and highway data including

characteristics of both highway and rail

traffic. The planning component must

also contain a process for analyzing data

to identify hazardous highway locations

based on accident experience or

accident potential as well as containing

a process for conducting engineering

studies of hazardous locations. Of vital

importance in ensuring that limited

funds are spent in a manner that will

achieve the greatest safety return, a

state’s safety improvement program is

required to have a process for

establishing priorities for implementing

highway safety improvement projects.

That process must consider the

potential reduction in the number and/

or severity of accidents; the cost of the

projects and resources available; the

relative hazard of public highway-rail

crossings based on a hazard index

formula; on-site inspections of

crossings; potential danger to large

numbers of people at crossings used on

a regular basis by passenger trains,

buses, pedestrians, bicyclists or by

trains and motor vehicles carrying

hazardous materials; and other criteria

as appropriate in each state. 23 CFR

924.9.

As a review of the planning and

prioritization components shows, the

process outlined above could only be

carried out by an entity capable of

gathering and analyzing all the needed

data. A railroad has only data available
11650 Federal Register / Vol. 60, No. 41 / Thursday, March 2, 1995 / Proposed Rules

to it which is railroad specific: rail

traffic volume, authorized speed,

number of tracks, type of train control

system, and projected changes in these

areas. Even accident data available to a

railroad are of uncertain benefit since

they are limited to the experiences of

that one railroad rather than compared

and collated with similar data from

other railroads in the state or even other

railroads whose tracks are crossed by

the same highway.

The federal government has

recognized that individual entities such

as railroads do not have the requisite

analytical tools and information

gathering ability to make the

appropriate decisions regarding the

most appropriate focusing of limited

safety improvement funds. State

agencies have the necessary analytical

tools and information. It is therefore

appropriate that they have the

responsibility for the actual selection of

specific crossings and the determination

of the type of warning devices to be

installed.

The Secretary, through FHWA, has

also issued standards governing the

form and placement of all grade crossing

warning systems irrespective of whether

federal funds are used in their

installation. 23 CFR 646.214. FHWA’s

Manual on Uniform Traffic Control

Devices (MUTCD), incorporated by

reference into the Code of Federal

Regulations (23 CFR 655.601),

establishes ‘‘traffic control device

standards for all streets and highways

open to public travel regardless of type

or class or the governmental agency

having jurisdiction.’’ MUTCD 1A–2. The

MUTCD establishes uniform standards

relating to design and placement of

traffic control signs, pavement markings

and automatic warning devices. These

standards apply nationwide—even

when the improvements have not been

paid for with federal funds.

DOT Safety Initiatives

This proposed rule is but one

component of a continuing DOT

campaign to improve grade crossing

safety. DOT’s Grade Crossing Action

Plan includes several initiatives that

will aid in improving safety at grade

crossings. This plan details six major

Departmental initiatives encompassing

55 separate actions addressing highwayrail grade crossing safety and trespass

prevention. These initiatives include:

enhanced enforcement of traffic laws at

crossings; enhanced rail corridor

crossing reviews and improvements;

expanded public education and

Operation Lifesaver activities; increased

safety at private crossings; improved

data and research efforts; and

prevention of rail trespassing.

A cornerstone of this grade crossing

safety campaign is the closure and

consolidation of little used and

redundant crossings. It is generally

acknowledged that there are too many

highway-rail grade crossings in this

country—there are not sufficient

resources from any source or sources to

provide full warning systems or grade

separations at all of the nation’s

crossings. Too many crossings are

equipped only with crossbuck warning

signs. Elimination of poorly designed,

less travelled, and redundant crossings

will clearly enhance the safety of the

travelling public. FRA has thus been

advocating consolidation and closure

for a number of years. FRA’s role of

advocate reflects the fact that state and

local governments have the authority to

close and consolidate crossings just as

they have the authority to create

crossings in connection with public

road construction.

This rulemaking is one in a series of

rules addressing the responsibilities of

the various parties in this critical rail

safety area. On September 27, 1994,

FRA issued maintenance, inspection,

and testing rules (59 FR 50086,

September 30, 1994). Those rules for the

first time impose specific

responsibilities on railroads to maintain,

inspect and test active highway-rail

grade crossing warning systems.

Additionally, FRA imposed on railroads

the responsibility to take specified

actions when grade crossing warning

systems malfunction. The rules impose

costs on railroads in addition to the

more than $130 million they spend on

crossing maintenance every year. The

allocation of responsibility to railroads

regarding grade crossing maintenance,

inspection, and testing and response to

malfunctions reflects reality—railroads

are the appropriate party to perform

these activities. They have the technical

expertise and forces to perform the

work. Safety is enhanced by such

allocation of responsibility.

Similarly, responsibilities have been

allocated between railroads and state

and local agencies by the Congress in

the Swift Rail Development Act of 1994

(Pub. L. 103–440). Section 302 of that

act directs the Secretary of

Transportation to issue regulations

requiring that a locomotive horn be

sounded while each train is

approaching and entering each public

grade crossing unless certain

supplementary safety measures are

provided by the ‘‘appropriate traffic

control authority or law enforcement

authority responsible for safety at the

highway-rail grade crossing.’’ Congress

has implicitly recognized that railroads

have responsibility in areas over which

they have control, such as sounding of

horns, while state and local traffic

control authorities have responsibility

pertaining to those areas within their

expertise and under their control,

namely, highway traffic control.

The NPRM

This NPRM would also define

responsibilities in the grade crossing

area. It defines the responsibility of

railroads to provide information and

assistance in those areas in which their

expertise is paramount—railroad

operations. Railroads would be required

to provide appropriate state agencies

information related to their operations

and to participate with state or local

diagnostic teams to help the state or

local governmental body determine

which crossings’ warning systems

should be upgraded and to what extent.

This allocation of responsibility to

railroads is based on the recognition

that state and local governmental bodies

are the entities with the expertise and

information to look at the entire picture

(of which railroad traffic and plans are

but one component): whether crossings

should be consolidated or closed;

funding availability; funding

constraints; local desires; area

residential, commercial and industrial

development plans; and highway traffic

engineering demands and constraints.

Consistent with that expertise and

information base, state and local

governmental bodies are the appropriate

bodies to determine which, how, and

when highway rail grade crossing

warning systems should be upgraded.

Because of the very high cost to install

an automatic traffic control warning

system at a grade crossing—more than

$100,000 at a double track crossing—it

is imperative that the limited safety

funds, from whatever sources, available

for crossing improvements be spent in a

rational, uniform, and coordinated

manner. The present system whereby

states, pursuant to FHWA regulations,

investigate, plan, and prioritize crossing

improvements provides the needed

uniformity and coordination to ensure

that the crossings most in need of safety

improvements are those that receive

them. Grade crossing safety is best

enhanced by such a program that

provides for a systematic upgrading of

traffic control devices at crossings that

are truly needed pursuant to a

prioritized schedule established by state

authorities under uniform federal

criteria. Such a program allows state

highway officials the ability to respond

to the concerns of the public in making

grade crossing improvement decisions,
Federal Register / Vol. 60, No. 41 / Thursday, March 2, 1995 / Proposed Rules 11651

and allows available resources to be

allocated to the grade crossing

improvement projects yielding the

highest safety returns. Simply stated,

this will save more lives than if an equal

amount of money were spent on

upgrading crossings that statistically are

not as dangerous.

In other, less frequent situations, a

state agency, local governmental body,

or state or local legislative body may,

outside of the Federal-aid program, fund

the upgrading of a warning system at a

specific crossing or order a railroad to

install or upgrade a warning system at

its own expense. These proposed rules

are not meant to prevent those

governmental authorities from being

involved in such activities. Although

the selection decision in these situations

may not be based on the selection and

installation criteria established by

FHWA and adopted by the state

department of transportation or highway

department, presumably the

governmental body’s selection decision

is based on sound public policy and

overall safety considerations derived

from information available to the state.

Some state laws, generally predating

the advent of the Federal Rail-Highway

Crossing Program, impose a tort law

duty upon railroads to maintain safe

crossings. In some cases this duty has

been interpreted to include a duty to

select and install warning systems at

hazardous crossings. While this system

may have been appropriate in the past,

when there was no systematic and

uniform improvement program in

existence, today the result is one of

misallocation of scarce resources. This

ad hoc system of grade crossing

improvements, driven by tort law and

individual jury awards, runs counter to

the goal of a uniform national program

based on planning and prioritization.

Those ofttimes arbitrary local

requirements can result in the

installation of grade crossing warning

systems, not where research and data

indicates they will do the most good,

but where a judge or jury determined,

after the fact, that such a system should

have been installed.

Jury verdicts based on common law

standards are necessarily ad hoc, caseby-case judgements that are

retrospective in nature. The duties now

imposed upon railroads ad hoc in this

manner are inconsistent with the

command of Congress that ‘‘[l]aws,

regulations, and orders related to

railroad safety shall be nationally

uniform to the extent practicable.’’ (49

U.S.C. 20106) These verdicts do not

provide an appropriate mechanism for

determining whether the crossing is

needed in the first place, and if needed,

what warning devices are appropriate.

Neither do these verdicts provide an

appropriate method for determining the

order in which crossings would be

equipped or upgraded to yield the

greatest safety benefits. Moreover, these

judgments divert resources from saving

lives through investments in grade

crossing warning devices to

compensating those killed or injured in

accidents or their survivors. This is

sound public policy only when the

railroad has breached a duty to them

that it is appropriate for the railroad to

have.

In this proposed rule, FRA is defining

in a nationally uniform manner the

safety duties railroads have in

connection with the selection and

installation of warning devices at grade

crossings. Tort judgments in general

certainly exert a salutary deterrent

influence on behaviors that rational

actors can avoid, but here that deterrent

is distorted and diminished by the

combination of (i) the lack of adequate

funds, public or private, to improve all

grade crossings to the desired level of

safety, (ii) the focus of tort cases on

whether a railroad has satisfied its

common law duties at the grade

crossing in question without regard to

its behavior concerning grade crossings

in general, and (iii) large judgments for

accidents at grade crossings of low

relative hazard. As things now stand, a

railroad that is responsibly investing its

available funds for the improvement of

grade crossings in the order and in the

manner specified by the transportation

authorities in the states it serves may be

subjected to large tort judgments

resulting from the relatively random

occurrence of accidents at grade

crossings of low hazard relative to those

improved. The proposed regulations are

meant to ensure that the present system

is not compromised by state

requirements that railroads select and

install grade crossing improvements

outside of the coordinated and

prioritized federal/state system already

established.

The Supreme Court, in a recent

decision, CSX Transportation, Inc. v.

Easterwood, (113 S. Ct. 1732, (1993))

held that legal duties imposed on

railroads by a State’s common law of

negligence fall within the scope of the

preemption provision of 49 U.S.C.

20106, (formerly § 205 of the Federal

Railroad Safety Act (45 U.S.C. § 434)).

However, the Court held that

preemption of such state laws will lie

only if the federal regulations

substantially subsume the subject matter

of the relevant state law.

FRA expects the proposed rules will

‘‘substantially subsume’’ the subject

matter of railroads’ selection and

installation of highway rail grade

crossing warning systems and as such

will preempt state laws covering the

same subject matter, regardless of

whether Federal funding of

improvements is involved at a particular

crossing.

In Easterwood, the Court held that

‘‘for projects in which federal funds

participate in the installation of warning

devices, the Secretary has determined

the devices to be installed and the

means by which railroads are to

participate in their selection. The

Secretary’s regulations therefore cover

the subject matter of state law which,

like the tort law on which respondent

relies, seeks to impose an independent

duty on a railroad to identify and/or

repair dangerous crossings.’’ 123 L. Ed.

2d at 401.

The Department believes that the

distinction in safety duties drawn in

Easterwood depending upon whether or

not improvements to a particular grade

crossing were federally funded results

in poor public policy that is likely to

misallocate scarce funds for grade

crossing improvements because

railroads are given a powerful financial

incentive either (i) to invest funds in

improving crossings on some basis other

than the relative hazard rankings

established by state highway authorities

or (ii), especially in the case of small

railroads, to diminish investment in

grade crossing improvements because

they cannot tell where an adverse

verdict may strike next and their net

financial results may be better served by

using the funds to pay judgments they

are unable to avoid. Railroad and

highway safety alike are best served by

focusing the economic and legal

incentives of everyone involved in the

process to invest grade crossing

improvement funds where the most

lives will be saved and the most injuries

prevented. The proposed rule is

intended to achieve that result.

If, as the Department has

recommended in its Highway-Rail

Grade Crossing Action Plan, state

transportation authorities also begin

evaluating the hazards of grade

crossings on entire rail corridors, the

proposed rule would accommodate

improvements focused in that manner.

That is simply another way for state

transportation authorities to

systematically evaluate the relative

safety of highway rail grade crossings

and to decide which improvements will

yield the best safety results.

Moreover, highway rail grade crossing

warning systems are devices to control

motor vehicle traffic on highways.

Government bodies responsible for
11652 Federal Register / Vol. 60, No. 41 / Thursday, March 2, 1995 / Proposed Rules

highways and motor vehicle safety are

the appropriate decision makers to

decide which devices should be

installed on public highways and the

order in which intersections should be

improved.

Railroads should be responsible for

providing information to help state

highway authorities make those

decisions and for helping to implement

those decisions after they are made. In

fulfilling the requirements of FHWA’s

Highway Safety Improvement Program

(49 CFR Part 924), state agencies have a

need for railroad information that might

have an impact on the type of

improvement appropriate to a particular

crossing or that might affect the relative

priority to be given in upgrading one

crossing versus another. Such data

include present and projected rail traffic

(both hazardous and non-hazardous

materials), track configuration,

signalling, and authorized train speed as

well as other conditions affecting the

crossing. Railroads have historically

provided assistance to state agencies

planning for grade crossing

improvements. The proposal would

codify railroads’ present practice of

providing information and assistance

needed by those state agencies.

The proposal will not affect railroads’

present obligations to maintain grade

crossing warning systems. Indeed, as

noted above, FRA’s recently issued

amendments to Grade Crossing Signal

System Safety regulations codify

specific maintenance, inspection, and

testing requirements for grade crossing

warning systems.

While this proposed rule prevents a

railroad from unilaterally selecting and

installing warning systems, it does not

prevent a state agency from ordering a

railroad to pay for all or part of grade

crossing warning system on a nonFederal aid project. While FRA is

philosophically opposed to the concept

of a railroad being forced to pay for an

upgrade to what is essentially a highway

traffic control device for which it

receives no net benefit (see 23 CFR

210(b)), FRA is not prepared at this time

to issue regulations preempting the

many state laws in this area.

Section-by-Section Analysis

§ 234.301 Railroad cooperation.

Paragraph (a) of this section requires

that railroads cooperate with the

appropriate state agency in furnishing

information to enable the state to

develop plans and project priorities for

the elimination of hazards of highwayrail grade crossings. Railroad plans to

increase traffic on a line or to upgrade

track or signalling to enable increases in

train speed, are important factors which

states must take into consideration in

determining their prioritization and

plans. Similarly, state planners need

information regarding railroad plans or

projections regarding decreasing traffic

volume. Railroads have generally

provided such information on a

voluntary and routine basis. This

provision codifies the responsibility of a

railroad to provide current and

projected information which is uniquely

available to the railroad. Without

railroad information a state is unable to

make the appropriate decisions to

determine which crossings should be

upgraded and with which type of

warning systems. Many railroads

already provide information such as

current train counts, speeds, type and

number of tracks and type of installed

warning system to FRA or the state for

inclusion in the DOT/Association of

American Railroads National HighwayRail Grade Crossing Inventory

(Inventory) on file with FRA. Duplicate

submissions to a state are not necessary

under this rule inasmuch as Inventory

data is routinely available to States.

Presently, information submissions by

States and railroads to the Inventory are

made on a voluntary basis. Comments

are specifically invited regarding the

advisability of making Inventory

information submission mandatory.

This section also provides that a

railroad need not submit proprietary

data of a confidential nature to a state

unless that information will be

protected from disclosure. Such

provision will ensure that railroads will

not be penalized commercially by such

regulatory compliance.

Paragraph (b) of this section requires

that railroads provide appropriate

engineering and other technical

assistance to the state agency in

designing and installing the warning

system determined by the state to be

appropriate to the particular crossing. In

many instances a railroad is the only

party with the requisite technical

expertise to assist the state in

developing the engineering design for

the crossing. This section recognizes

that fact and therefore establishes a duty

to assist in this area.

§ 234.303 Selection and installation of

warning systems at public crossings.

Paragraph (a) of this section prohibits

a railroad from unilaterally selecting or

determining the type of grade crossing

warning system to be installed at a

public highway-rail grade crossing.

Such a decision is more appropriately

made by the state or local government.

In some situations today, a railroad

voluntarily contributes to the cost of

installing a crossing warning system. In

some cases, a railroad has voluntarily

contributed all or part of a locality’s

required local share in order to enable

a particular crossing to be improved

with federal funds. The proposed rule is

not meant to alter this practice of

voluntary railroad involvement.

Similarly, this rule is not meant to affect

those situations in which a railroad

improves a crossing at its own expense

in order to secure the closure of another

crossing. These railroad practices,

unlike funding of projects outside of the

state planning process, are supportive

and consistent with the prioritization

and planning process. Therefore,

nothing in the proposal prevents a

railroad from voluntarily contributing to

the installation costs of warning devices

installed pursuant to the state planning

process.

Paragraph (b) addresses installation of

the warning system after the specific

grade crossing and type of warning

system has been selected. This

paragraph provides that a railroad shall

only install or upgrade a grade crossing

warning system at a public highway-rail

grade crossing pursuant to an order by,

or agreement with, a state agency or

other public body having authority to

issue such order or enter into such

agreements. The proposal provides that

whenever such state agency or other

public body determines that a particular

grade crossing warning system should

be installed at a particular highway-rail

grade crossing, the railroad shall comply

with any legally sufficient order, or in

the case of federally funded grade

crossing projects, enter into and perform

an agreement for the installation or

upgrade of that grade crossing warning

system with the state agency or other

public body having jurisdiction. The

rule does not require a railroad to

provide the non-federal share of costs

involved in federally-funded grade

crossing improvement projects.

This section recognizes that since the

warning system is, in many instances,

tied into the railroad’s track circuits and

the railroad will maintain the system,

the railroad is generally the most

appropriate party to physically install

the system. Under the present Federalaid system, railroads are reimbursed for

procurement and installation costs of

the warning system. This paragraph

recognizes the benefits of this process

and only prohibits railroads from

unilaterally installing grade crossing

warning systems without state or local

approval.

This section is not meant to prohibit

a railroad’s voluntarily contribution to

the costs of installation of a highwayrail grade crossing warning system.
Federal Register / Vol. 60, No. 41 / Thursday, March 2, 1995 / Proposed Rules 11653

Railroads have voluntarily contributed

all or a portion of the non-Federal

matching share required under Federal

law for construction of grade crossing

warning systems. FRA does not intend

to prevent or discourage such

contributions.

While FRA believes that railroads

have many powerful incentives to

continue their longstanding policy of

voluntarily providing matching funds

for federally funded grade crossing

projects, comment is sought concerning

whether this proposal will affect the

level of railroad participation in such

projects.

Paragraph (c) addresses railroad

projects in which warning system

improvements are only incidental to the

railroad project. Some railroad projects,

such as new track, upgraded track, or

the installation of signal systems, may

involve upgrading warning system

circuits or the replacement of obsolete

equipment with newer, more

technologically advanced equipment.

This rule is not intended to prohibit

railroad’s present practice of incidental

upgrades.

Regulatory Impact

E.O. 12866 and DOT Regulatory Policies

and Procedures

This proposed rule has been

evaluated in accordance with existing

policies and procedures, and is

considered to be significant under DOT

policies and procedures (44 FR 11034,

February 26, 1979). This regulatory

document was subject to review under

E.O. 12866. FRA has prepared and

placed in the rulemaking docket a

regulatory evaluation addressing the

economic impact of this rule. A copy of

the regulatory evaluation may be

inspected and copied in Room 8201,

400 Seventh Street, S.W., Washington,

D.C., 20590.

In its regulatory analysis FRA posited

that the costs and benefits of this

proposed rule are not measurable at

present, but that the benefits will equal

or exceed the costs, because the

function of the rule is to virtually

eliminate grade crossing selections and

installations which do not require an

analysis which considers costs and

benefits.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980

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

of rules to assess their impact on small

entities. In reviewing the economic

impact of the proposed rule, FRA has

concluded that it will have a minimal

economic impact on small entities.

There is no direct or indirect economic

impact on small units of government,

businesses, or other organizations.

Therefore, it is certified that this rule

will not have a significant economic

impact on a substantial number of small

entities under the provisions of the

Regulatory Flexibility Act.

Paperwork Reduction Act

The proposed rule contains

information collection requirements.

FRA is submitting these information

collection requirements to the Office of

Management and Budget for approval

under the Paperwork Reduction Act of

1980 (44 U.S.C. 3501 et seq.). The

proposed section that contains

information collection requirements is

§ 234.301. Persons desiring to comment

on this topic should submit their views

in writing to FRA (Ms. Gloria Swanson,

RRS–21, Federal Railroad

Administration, 400 Seventh Street,

S.W., Washington, D.C. 20590) and to

the Office of Management and Budget

(Desk Officer, Regulatory Policy Branch

(OMB No. 2130–AA92), Office and

Management and Budget, New

Executive Office Building, 726 Jackson

Place, N.W., Washington, D.C. 20530.

Copies of any such comments should

also be submitted to the Docket Clerk,

Office of Chief Counsel, FRA, 400

Seventh Street, S.W., Washington, D.C.

20590.

Environmental Impact

FRA has evaluated these proposed

regulations in accordance with its

procedure for ensuring full

consideration of the potential

environmental impacts of FRA actions,

as required by the National

Environmental Policy Act and related

directives. This notice meets the criteria

that establish this as a non-major action

for environmental purposes.

Federalism Implications

This action has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612, and it has been determined that

the proposed rule has sufficient

federalism implications to warrant the

preparation of a Federalism Assessment.

A copy of the Federalism Assessment

has been placed in the public docket

and is available for inspection.

List of Subjects in 49 CFR Part 234

Railroad safety, Highway-rail grade

crossings.

The Proposed Rule

In consideration of the foregoing, FRA

proposes to amend Part 234, Title 49,

Code of Federal Regulations as follows:

PART 234—[AMENDED]

1. The authority citation for Part 234

continues to read as follows:

Authority: 49 U.S.C. 20103, 20106, 20107,

20111, 20112, 20134, 21301, 21304, and

21311 (formerly Secs. 202, 208, and 209 of

the Federal Railroad Safety Act of 1970, as

amended (45 U.S.C. 431, 434, 437, and 438,

as amended)); 49 U.S.C. 20901 and 20102

(formerly the Accident Reports Act (45 U.S.C.

38 and 42); and 49 CFR 1.49 (f), (g), and (m).

2. Add a new ‘‘Subpart E—Selection

and Installation of Grade Crossing

Warning Systems,’’ to read as follows:

Subpart E—Selection and Installation

of Grade Crossing Warning Systems

Sec.

234.301 Railroad cooperation.

234.303 Selection and installation of grade

crossing warning systems.

§ 234.301 Railroad Cooperation.

(a) Railroads shall cooperate with the

appropriate state agency in furnishing

information to enable the state agency to

develop plans and project priorities for

the elimination of hazards of highwayrail grade crossings including, but not

limited to grade crossing elimination,

reconstruction of existing grade

separations, and grade crossing

improvements. At the request of the

appropriate state agency, a railroad shall

provide information not already

provided to the FRA or the state for

inclusion in the DOT/Association of

American Railroads National HighwayRail Grade Crossing Inventory regarding

railroad operations involving specific

highway-rail grade crossings, including,

but not limited to: present and projected

rail freight traffic (including

transportation of hazardous materials);

present and projected passenger traffic;

present and projected track

configuration and signalling; present

and projected maximum authorized

train speed; and other conditions which

may affect the planning for, and

prioritization of, crossing

improvements. Nothing herein requires

that a railroad provide to a state

proprietary data of a confidential nature

unless such information shall be

protected from disclosure.

(b) Railroads shall provide

appropriate engineering and other

technical assistance to the state agency

in designing and installing the warning

system determined by the state to be

appropriate to the particular crossing.

§ 234.303 Selection and installation of

grade crossing warning systems.

(a) A railroad shall not unilaterally

select or determine the type of grade

crossing warning system to be installed

at a public highway-rail grade crossing.
11654 Federal Register / Vol. 60, No. 41 / Thursday, March 2, 1995 / Proposed Rules

(b) Subject to paragraph (c), a railroad

shall only install or upgrade a grade

crossing warning system at a public

highway-rail grade crossing pursuant to

an order by, or agreement with, a state

agency or other public body having

authority to issue such order or enter

into such agreements. Whenever such

state agency or other public body

determines that a particular grade

crossing warning system should be

installed at a particular highway-rail

grade crossing, the railroad shall comply

with any legally sufficient order, or in

the case of federally funded grade

crossing projects, enter into and perform

an agreement for the installation or

upgrade of that grade crossing warning

system with the state agency or other

public body having jurisdiction.

Nothing herein shall require a railroad

to provide the non-federal share of costs

involved in federally-funded grade

crossing improvement projects.

(c) A railroad is permitted to upgrade,

at its own expense, components of a

public highway-rail grade crossing

warning system when such upgrade is

incidental to a railroad improvement

project relating to track, structures or

train control systems.

3. Amend Appendix A by inserting in

numerical order new entries to read as

follows:

APPENDIX A TO PART 234.—

SCHEDULE OF CIVIL PENALTIES

Section Violation Willful

violation

* * * * *

234.301 Railroad cooperation ................ $5,000 $7,500

APPENDIX A TO PART 234.—SCHEDULE OF CIVIL PENALTIES—Continued

Section Violation Willful

violation

§ 234.303 Selection

and installation of

grade crossing

warning systems .... 5,000 7,500

* * * * *

Issued in Washington, D.C. on February 24,

1995.

Jolene M. Molitoris,

Administrator.

[FR Doc. 95–5100 Filed 3–1–95; 8:45 am]

BILLING CODE 4910–06–P