drfGRXngActPlansFNLRLE

INFORMATION COLLECTION

FEDERAL RAILROAD ADMINISTRATION

SUPPORTING JUSTIFICATION

State Highway-Rail Grade Crossing Action Plans (RIN 2130-AC20)

Summary of Submission

• FRA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register regarding its State Highway-Rail Grade Crossing Action Plans on November 13, 2009. See 74 FR 58589.

• OMB took no action on the NPRM information collection submission, instead choosing to wait until publication of the final rule for its review.

• FRA is publishing the State Highway-Rail Grade Crossing Action Plans Final Rule in the Federal Register on June 28, 2010. See 75 FR 36551.

• Total number of burden hours requested for this submission is 6,004 hours.

• Total number of burden hours previously requested was 6,004 hours.

• There is no change in requested burden hours from the earlier submission.

• **The answer to question number 12 itemizes the hourly burden associated with each requirement of this rule (See pp. 9-11).

1. Circumstances that make collection of the information necessary.

This final rule is intended to prevent collisions at highway-rail grade crossings in the ten identified States, and to comply with § 202 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law No. 110-432, Division A, which was signed into law on October 16, 2008. Section 202 requires the Secretary (delegated to the Federal Railroad Administrator by 49 CFR 1.49) to identify the ten States that have had the most highway-rail grade crossing collisions, on average, over the past three years, and to require those States to develop State highway-rail grade crossing action plans, within a reasonable period of time, as determined by the Secretary. Section 202 further provides that these plans must identify specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations, and must focus on crossings that have experienced multiple accidents or are at high risk for such accidents.

Section 202 also provides the following: the Secretary will provide assistance to the States in developing and carrying out such plans, as appropriate; the plans may be coordinated with other State or Federal planning requirements; the plans will cover a period of time determined to be appropriate by the Secretary; and the Secretary may condition the awarding of any grants under 49 USC §§ 20158, 20167, or 22501, to a State identified under this section, on the development of such State’s plan.

Lastly, § 202 provides a review and approval process under which, not later than 60 days after the Secretary receives such a State action plan, the Secretary must review and either approve or disapprove it. In the event that the proposed plan is disapproved, § 202 indicates that the Secretary shall notify the affected State as to the specific areas in which the proposed plan is deficient, and the State shall correct all deficiencies within 30 days following receipt of written notice from the Secretary.

As previously noted, Congress expressly directed the Secretary to identify the ten States that have had the most highway-rail grade crossing collisions, on average, over the past three years. FRA maintains a database of highway-rail grade crossing accidents/incidents occurring at public and private grade crossings, as such events must be reported to FRA pursuant to 49 CFR § 225.19. From this database, FRA identified the ten States with the most reported highway-rail grade crossing accidents/incidents at public and private grade crossings during 2006, 2007, and 2008, to be as follows: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas. FRA will issue letters to these identified States (prior to the effective date of this rule), and copies of such letters will be placed in the public docket of this proceeding.

Section 202 instructs the Secretary to determine the reasonable period of time within which the ten identified States must develop a State highway-rail grade crossing action plan and the period of time to be covered by such a plan. Based on previous experience working with States on highway-rail grade crossing action plans, FRA has determined that States can reasonably develop such plans within one year from the date this regulation goes into effect, and that such plans should cover a period of five years.

2. How, by whom, and for what purpose the information is to be used.

This is a new collection of information. The information will be used by FRA to carry out a Congressional mandate. With the identification of the ten States with the most highway rail grade crossing collisions nationwide, on average, over the past three years, the information collected will be used to ensure that these States devise and implement suitable plans to reduce/eliminate the troubling high numbers of collisions in their States. Specifically, FRA will review grade crossing action plans to ensure that these plans include the following: (1) Identify specific solutions for improving safety at highway-rail grade crossings, including highway-rail grade crossing closures or grade separations, (2) Focus on crossings that have experienced multiple accidents or are at high risk for such accidents, and (3) Cover a five-year period of time. Also, FRA will use the information collected to condition the awarding of any grants under 49 U.S.C. 20158, 20167, or 22501 on the development and submission of the identified State’s action plan.

Within 60-days of receipt of the required grade crossing action plans, FRA will conducting the necessary review and will communicate a decision regarding approval to all ten States identified through FRA’s accident database. Grade crossing action plans not approved will need to be re-submitted. FRA will review these revised plans to make sure that specific areas found deficient in the plan are improved to meet agency safety standards so as to meet the Congressional goal of reducing highway-rail grade collisions and their accompanying injuries, fatalities, and property damage.

The information will also be used by States. Specifically, development of such plans will enhance these States’ ability to view its population of highway-rail grade crossings, interpret historical accident information, evaluate the overall state of highway-rail grade crossing safety, and identify particular areas in need of attention.  Collision patterns and causal factors will become more readily apparent as a result of the detailed study, assessment, and status reporting involved in the development of the State action plan. In these plans, each State will identify specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations, with special focus on those crossings that have experienced multiple accidents or are at heightened risk for accidents.  Special emphasis corridors of high-risk crossings may also be identified as a result of the analysis component of the State action plan. Furthermore, each State’s highway-rail grade crossing action plan may be coordinated with other State or Federal planning requirements. Consequently, additional benefits may be obtained through closer integration of grade crossing safety issues into the overall State transportation safety planning efforts.

3. Extent of automated information collection.

FRA strongly supports and highly encourages the use of advanced information technology, wherever possible, to reduce burden on respondents. FRA has championed the use of advanced information technology, particularly electronic recordkeeping, for many years now. In compliance with both the requirements of the PRA and GPEA, FRA provides the option of electronic submission for the required State grade crossing action plans under § 234.11. Thus, approximately 100 percent of all responses may be submitted electronically, if States so choose.

It should be noted that the estimated burden of this proposed collection of information is fairly minimal.

4. Efforts to identify duplication.

The information collection requirements to our knowledge are not duplicated anywhere.

Similar data are not available from any other source.

5. Efforts to minimize the burden on small businesses.

Pursuant to § 312 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has issued a final policy that formally establishes “small entities” as including railroads that meet the line-haulage revenue requirements of a Class III railroad. 49 CFR part 209, app. C. For other entities, the same dollar limit in revenues governs whether a railroad, contractor, or other respondent is a small entity. Id. Additionally, § 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000. Such governments would not be directly impacted by this direct final rule.

The ten States identified will incur the full burden associated with implementation of this final rule. The primary burden imposed will be for State labor resources spent to comply with development of the mandated action plans. FRA will be available, including FRA regional grade crossing managers and FRA experts from the grade crossing and trespasser prevention division, to provide assistance to States in developing and carrying out, as appropriate, the State highway-rail grade crossing action plans. In addition, the State highway-rail grade crossing action plans may be coordinated with other State or Federal planning requirements.

Burden estimates are largely driven by the composition of the State’s team and the level of effort expended by each individual (as noted in the regulatory impact analysis section of this final rule). Such factors may vary from team to team. FRA realizes that the level of expertise per State, per team, per member, will vary and, therefore, has applied a 20 percent sensitivity factor to its baseline analysis. Thus, when defining the projected cost burden to the individual States within the framework of team complexion and with regard to the estimated sensitivity of the individual expertise of the employee selected, FRA finds that it is reasonable to estimate that the burden could range from $20,800 to $31,100 per State. FRA finds that the total cost burden associated with this final rule ranges from $208,000 to $311,000 and the estimated annual burden is 6,400 hours.

It should be noted that FRA has certified that this final rule will not have a significant economic impact on a substantial number of small entities, as this rule only affects 10 identified States. To the extent that this rule has any impact on small entities, the impact will not be significant.

6. Impact of less frequent collection of information.

If this information were not collected or collected less frequently, FRA would be unable to carry out a Congressional mandate and FRA’s goal of enhancing national rail safety would be significantly impeded. Specifically, if FRA were unable to collect the proposed information, FRA would have no way to know whether the ten States with the most highway-rail grade crossing collisions (on average, over the last three years) have devised and implemented suitable plans to reduce the excessively high numbers of accidents and corresponding injuries, fatalities, and property damage that they experienced in the recent past.

Without the information collected, FRA could not be assured that each of the ten identified States have actually identified specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations; could not be assured that they are focusing on crossings that have experienced multiple accidents or are at high risk for such accidents; and could not be assured that their plans actually cover the required five year time period.

Without this collection of information, a new and important means of enhancing highway-rail grade safety throughout the nation and saving lives would be unavailable to FRA and its Highway-Rail Grade Crossing Division.

In sum, the collection of information helps FRA to promote and enhance safe rail transportation throughout the United States. In this, it furthers both DOT’s and its own mission.

7. Special circumstances.

All the information collection requirements contained in the rule are in compliance with this section.

8. Compliance with 5 CFR 1320.8.

Pursuant to FRA’s direct final rulemaking procedures set forth at 49 CFR 211.33, FRA first published the State Highway-Rail Grade Crossing Action Plans as a direct final rule in the Federal Register on September 2, 2009 (see 74 FR 45336). FRA received one adverse comment regarding the direct final rule. Pursuant to 49 CFR 211.33(d), FRA withdrew the direct final rule and issued a notice of withdrawal to the Federal Register. However, due to regulatory production schedules and time constraints, the direct final rule was not withdrawn before its effective date. As a result, on November 13, 2009, FRA published a removal of the direct final rule provisions in the Federal Register, which removed the changes effected by the direct final rule (see 74 FR 58560), and contemporaneously published a Notice of Proposed Rulemaking (NPRM). See 74 FR 58589.

Subsequent to the publication of the NPRM, FRA received written requests for a public hearing. FRA held a public hearing in Washington, DC on February 22, 2010, and extended the comment period for an additional 14 days following the hearing, up to and including March 8, 2010. The hearing enabled the exchange of information regarding FRA’s proposed amendments, and allowed the public to articulate their issues and concerns regarding the NPRM. FRA received oral and written testimony at the hearing as well as written comments during the extended comment period. A copy of the hearing transcript was placed in Docket No. FRA-2009-0032 , which is available at http://www.regulations.gov.

In response to the November 13, 2009, published NPRM, there were no comments that specifically addressed the information collection cost/burden hour estimates provided in the NPRM. FRA did receive a variety of comments, including a number of comments about the State highway-rail grade crossing action plans proposed in the NPRM. One comment requested that, in the event a submitted State action plan is disapproved by FRA, the notice of disapproval articulate the action plan’s deficiencies and recommend corrections. FRA intends, in the disapproval notice, to provide sufficient information to enable a State to successfully correct its plan.

Another comment stated that the NPRM did not address how proposed action plans were to be evaluated by FRA, and what standards would be applicable, including the applicable engineering criteria. As an initial matter, the State action plans are planning documents and, as such, it was not necessary to develop specific engineering criteria. FRA will evaluate the action plans to ensure that the specific statutory requirements, as articulated in this final rule, are met. FRA expects that, at a minimum, identified States will analyze highway-rail grade crossing collision data for commonalities that may indicate particular areas that need improvements. For example, one State that voluntarily prepared an action plan found that most multiple-collision crossings were in close proximity to a highway-highway intersection. Further investigation determined that there was a general lack of knowledge on interconnecting highway traffic signals with automatic warning devices at highway-rail grade crossings (which subsequently led the State to provide training on the interconnection). That State’s plan then provided specific items that should be considered when evaluating such crossings.

Another comment sought clarification on whether the action plans should provide specific safety solutions for specific highway-rail grade crossings, or whether the plans should provide specific safety solutions for highway-rail grade crossings more broadly. A similar comment stated that the NPRM did not contain any criteria for determining how many highway-rail grade crossings should be addressed in the action plans, and whether any engineering criteria should be applied in selecting specific crossings for inclusion in the action plans. To clarify, the final rule is intended to require the identified States to develop action plans that identify specific safety solutions for highway-rail grade crossings broadly. With that said, the rule also requires the States to focus on crossings that have experienced multiple accidents or are at high risk for such accidents. As such, a component of the action plans may include safety solutions for specific highway-rail grade crossings.

Several comments also asserted that the NPRM was an unfunded mandate that would burden the identified States and penalize their citizens, and that railroads -- instead of the identified States -- should plan and implement safety improvements to highway-rail grade crossings. Another comment claimed that the independent preparation of the action plans is not an efficient use of the States’ resources and that, instead, the States should collaborate with each other and review best practices for effective safety programs. However, a statute expressly directed FRA to promulgate this rulemaking and, specifically, to identify ten States, and to impose certain requirements on those States. See RSIA08 § 202. Moreover, States may work with each other, along with FRA staff, to further facilitate the process. Comments also noted that requiring only ten States to put forth such plans, with each State having varying levels of expertise and creating individualized plans, would result in a rule that would be neither national nor uniform. However, again, FRA promulgated this rule pursuant to a specific statutory mandate. See Id. Moreover, there is no requirement that States have uniform highway-rail grade crossing safety action plans as each State may have different issues to address.

A comment also asserted that the identified States do not generally have the required expertise to prepare the required action plans. Again, FRA promulgated this rule pursuant to a statutory mandate. See Id. In addition, FRA believes that the identified States will be able to successfully develop these plans. Furthermore, FRA is available, including FRA regional grade crossing managers and FRA experts from the grade crossing and trespasser prevention division, to provide assistance to States in developing and carrying out, as appropriate, the State highway-rail grade crossing action plans.

One comment asserted that the NPRM did not provide any specific requirements for the State action plans, and suggested that engineering evaluations of the safety issues in the identified States be required. As an initial matter, the final rule does provide specific requirements for the action plans, including that they: identify specific solutions for improving safety at crossings (including highway-rail grade crossing closures or grade separations), and focus on crossings that have experienced multiple accidents or are at high risk for such accidents. These requirements, moreover, do not prohibit the identified States from performing engineering evaluations. In fact, an action plan may identify a specific problem that will require engineering evaluations to be performed at highway-rail grade crossings that meet certain criteria.

Other comments recommended that the action plans should: encourage States to address obstructed motorist sight lines at highway-rail grade crossings; incorporate the American Association of State Highway and Transportation Officials (AASHTO) line of sight parameters; and include on-the-ground assessments of grade crossings. As an initial matter, this final rule does not prohibit the identified States from addressing motorist sight lines, or other safety approaches, in their action plans. Moreover, the final rule relies on the ability of the identified States to identify problem areas and to develop strategies to mitigate such problems. And those specific strategies may be included in an action plan.

A comment also stated that the identified States should develop an inventory of all highway-rail grade crossings in order to identify and address the most dangerous crossings. FRA appreciates the suggestion, but again notes that this specific request is beyond the scope of this rulemaking. FRA also notes that States and railroads are required to provide annual updates to the U.S. DOT Crossing Inventory, and that such information is available to the States. In addition, most States currently have their own crossing inventory databases. Another comment to the NPRM stated that FRA should use the agency database as a tool for identifying areas of opportunity, instead of burdening the identified States with these responsibilities. Still another comment to the NPRM asserted that FRA should assign this responsibility to the railroads as well as the identified State’s Department of Transportation, in a collaborative effort to improve the safety of highway-rail grade crossings. As previously noted, this rulemaking is mandated by statute. See Id. In addition, the U.S. DOT Crossing Inventory is available to the States, and most States have their own crossing inventory databases. Moreover, FRA staff will be available to the States to help facilitate this process.

Comments also stated that the NPRM should not only focus on two safety solutions for highway-rail grade crossings. These comments suggested that there are other safety solutions, in addition to crossing closure and grade separation solutions discussed in the NPRM, and that grade separation is expensive and not viable for most circumstances. The final rule, however, makes reference to the crossing closure and grade separation solutions because the statute mandated that the plans address highway-rail grade crossing closures or grade separations. See Id. Moreover, the final rule does not prohibit the plans from also addressing other viable safety solutions.

Comments to the NPRM stated that the methodology used to identify the States did not account for the rate or frequency of highway-rail grade crossings and motor vehicle traffic, and that a more appropriate measure for determining highway-rail grade crossing collisions within a State would be to measure the number of collisions relative to the number of vehicles and the number of highway-rail grade crossings, as well as consideration of the actions already taken by that State that have directly resulted in the reduction of highway-rail grade crossing collisions. The final rule does not adopt these suggestions because the statute expressly directed FRA to use the particular methodology articulated in the final rule (i.e., to identify the ten States that have had the most highway-rail grade crossing collisions, on average, over the past three years). See Id.

Another comment stated that the criteria for selecting the States should be limited to reported highway-rail grade crossing collisions at public crossings. However, again, the statute directed FRA to identify the ten States that have had the most highway-rail grade crossing collisions, and, as such, did not limit the criteria to only public crossings. See Id.

Finally, a comment asserted that the NPRM departed from prior Federal-State relationships regarding highway-rail grade crossings. Again, this rulemaking is being promulgated pursuant to a statutory mandate. See Id.

9. Payments or gifts to respondents.

There are no monetary payments provided or gifts made to respondents in connection with this information collection.

10. Assurance of confidentiality.

Information collected is not of a confidential nature, and FRA pledges no confidentiality.

A comment to the NPRM suggested that the final rule provide that the State action plans be protected from subpoenas and Freedom of Information Act (FOIA) requests. The final rule does not adopt this suggestion.

FRA has articulated a process for requesting confidential treatment of documents provided to FRA in connection with its enforcement of statutes or FRA regulations related to railroad safety. See 49 CFR 209.11. Moreover, the statute requiring the action plans does not provide for such a confidentiality provision. See RSIA08 § 202.

11. Justification for any questions of a sensitive nature.

There are no questions or information of a sensitive nature or data that would normally be considered private contained in this information collection.

12. Estimate of burden hours for information collected.

Note: Respondent universe is the 10 States that have had the most highway-rail grade crossing collisions, on average, during the calendar years of 2006 through 2008. The 10 identified States are as follows: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas.

§ 234.11 State Highway-Rail Grade Crossing Action Plans

Action Plans. This section applies to the ten States that have had the most highway-rail grade crossing collisions, on average, during the calendar years of 2006, 2007, and 2008.

(1) The ten identified States must each develop a State highway-rail grade crossing action plan and submit such a plan to FRA for review and approval not later than [INSERT DATE 1 YEAR FROM EFFECTIVE DATE OF FINAL RULE].

(2) A State highway-rail grade crossing action plan must: (i) Identify specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations; (ii) Focus on crossings that have experienced multiple accidents or are at high risk for such accidents; and (iii) Cover a five year time period.

FRA estimates that approximately 10 application plans will be submitted under the above requirement. It is estimated that it will take, on average, approximately 600 hours to prepare and submit each state highway-rail grade crossing action plan. Total annual burden for this requirement is 6,000 hours.

Respondent Universe: 10 States

Burden time per response: 600 hours

Frequency of Response: On occasion

Annual number of Responses: 10 State highway-rail grade crossing action plans

Annual Burden: 6,000 hours

Calculation: 10 grade crossing action plans x 600 hrs. = 6,000 hours

Review and Approval. (1) State highway-rail grade crossing action plans required under paragraph (c) of this section shall be submitted for FRA review and approval using at least one of the following methods: mail to the Associate Administrator for Railroad Safety/Chief Safety Officer, U.S. Department of Transportation, Federal Railroad Administration, 1200 New Jersey Ave. S.E., W12-140, Washington, DC 20590; or e-mail to [email protected].

(2) FRA will review and approve or disapprove a State highway-rail grade crossing action plan submitted pursuant to paragraph (d) of this section within 60 days of receipt.

(3) If the proposed State highway-rail grade crossing action plan is disapproved, FRA will notify the affected State as to the specific areas in which the proposed plan is deficient. A State must correct all deficiencies within 30 days following receipt of written notice from FRA.

(4) FRA may condition the awarding of any grants under 49 U.S.C. 20158, 20167, or 22501 to an identified State on the development of such State’s highway-rail grade crossing action plan.

FRA estimates that approximately five (5) grade crossing action plans will be revised under the above requirement. It is estimated that it will take approximately 80 hours to revise each plan and resubmit it to FRA. Total annual burden for this requirement is 400 hours.

Respondent Universe: 10 States

Burden time per response: 80 hours

Frequency of Response: On occasion

Annual number of Responses: 5 revised grade crossing revised action plans

Annual Burden: 400 hours

Calculation: 5 revised grade crossing action plans x 80 hrs. = 400 hours

Total annual burden for this entire information collection is 6,400 hours (6,000 + 400).

13. Estimate of total annual costs to respondents.

Besides the costs listed above in answer to question 12 of this document, FRA’s Regulatory Impact Analysis (RIA) section of this final rule finds that it is reasonable to estimate that the burden could range from $20,800 to $31,100 per State. Thus, FRA finds that the total cost burden associated with this final rule ranges from $208,000 to $311,000. For purposes of this information collection submission, FRA is using the midpoint between these two estimated numbers -- $259,000 – as the annual cost to respondents (this midpoint number seems tenable, given that the actual cost could be higher or lower as determined by the framework of each State’s team complexion and with regard to the estimated sensitivity of the individual expertise of the employee).

14. Estimate of Cost to Federal Government.

The additional costs to the Federal Government are those included in the Regulatory Impact Analysis (RIA) section of this final rule. FRA anticipates that the review time for each submitted plan will amount to six (6) hours per plan. Thus, the cost to the Federal Government will amount to $5,512.50.

Calculation

10 State plans x 6 hrs. p/review x $52.50 (wage rate) x .75 overhead = $5,512.50

15. Explanation of program changes and adjustments.

This is a new collection of information (mandated by Section 202 of the Rail Safety Improvement Act of 2008; P.L. 110-432). By definition, the entire burden is a program change.

16. Publication of results of data collection.

There are no plans for publication of this submission. The information will be used exclusively for purposes of determining compliance with U.S. laws and FRA safety regulations.

17. Approval for not displaying the expiration date for OMB approval.

Once OMB approval is received, FRA will publish the approval number for these information collection requirements in the Federal Register.

18. Exception to certification statement.

No exceptions are taken at this time.

Meeting Department of Transportation (DOT) Strategic Goals

This information collection supports DOT’s top strategic goal, namely transportation safety. Without this collection of information, FRA would be unable to carry out a Congressional mandate and FRA’s goal of enhancing national rail safety would be significantly impeded. Specifically, if FRA were unable to collect the proposed information, FRA would have no way to know whether the ten States with the most highway-rail grade crossing collisions (on average, over the last three years) have devised and implemented plans to reduce the excessively high numbers of accidents and corresponding injuries, fatalities, and property damage that they experienced in the recent past.

Without the information collected, FRA could not be assured that each of the ten identified States have actually identified specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations; could not be assured that they are focusing on crossings that have experienced multiple accidents or are at high risk for such accidents; and could not be assured that their plans actually cover the required five year time period.

Without this collection of information, a new and important means of enhancing highway-rail grade safety throughout the nation and saving lives would be unavailable to FRA and its Highway-Rail Grade Crossing Division.

In sum, the collection of information helps FRA to promote and enhance safe rail transportation throughout the United States. In this, it furthers both DOT’s and the agency’s missions.

In this information collection, as in all its information collection activities, FRA seeks to do its utmost to fulfill DOT Strategic Goals and to be an integral part of One DOT.

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