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

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

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

RIN 2130-AA92

Selection and Installation of Grade Crossing Warning Systems;

Termination of Rulemaking

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Termination of rulemaking.

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SUMMARY: This notice terminates rulemaking action in FRA Docket No.

FSGC-6. In its Notice of Proposed Rulemaking (NPRM), FRA proposed to

prohibit railroads from unilaterally selecting and installing highway-

rail grade crossing warning systems at public highway-rail crossings.

FRA also proposed to require that railroads furnish state highway

authorities with information necessary for state grade crossing project

planning and prioritization purposes. Termination of this rulemaking is

based on public comments and FRA's determination that railroad safety

will not be best served by issuance of such a regulation at this time.

FOR FURTHER INFORMATION CONTACT:

Bruce F. George, Director, Highway-Rail Crossing and Trespasser

Programs Division, Office of Safety, FRA, 400 Seventh Street, S.W.,

Washington, D.C. 20590 (telephone 202-632-3305), or Mark Tessler, Trial

Attorney, Office of Chief Counsel, FRA, 400 Seventh Street, S.W.,

Washington, D.C. 20590 (telephone 202-632-3171).

SUPPLEMENTARY INFORMATION: On March 2, 1995, FRA published in the

Federal Register (60 FR 11649) an NPRM which was meant to clarify the

respective responsibilities of railroads and state and local

governments regarding the selection and installation of highway-rail

grade crossing warning systems. Public hearings were held on the

proposal on June 6 and 7, 1995. The public comment period closed on

June 14, 1995. However, FRA continued to receive comments and to date

has received in excess of 3,000 comments in this rulemaking. All

comments have been considered by FRA, including those received after

June 14, 1995, in accord with FRA's policy to consider late filed

comments to the extent possible. A wide range of views were expressed

in the public hearings and in written comments submitted to the public

docket. A high proportion of the comments were form letters and

preprinted postcards expressing opposition to the proposal.

Subsequent to issuance of the NPRM, a school bus stopped at a

highway-rail grade crossing in Fox River Grove, Illinois, was struck by

a commuter train. Seven students died. Following the accident the

Secretary of Transportation established a Grade Crossing Safety Task

Force (Task Force) to build upon the Department's 1994 Rail-Highway

Crossing Safety Action Plan. The Task Force reported its findings to

the Secretary on March 1, 1996. The Executive Summary of the report

stated in part:

[T]he report recommends 24 specific follow-on actions to address

both physical and procedural deficiencies. In practice, the

responsibility for public grade crossings resides with State and

local governments, railroads, and transit agencies. Recognizing the

constrained budgets that are available to the private sector and

State and local authorities, the report emphasizes rethinking

existing practices--not requiring new ones from a regulatory

approach. This reliance on existing opportunities is emphasized by

recommendations that encourage grade crossing safety through

coordinated inspections, law enforcement, and driver education.

As the Task Force Report states, ``[t]his * * * report should not be

viewed as a surrogate for the Action Plan, but as a supplement which

focuses on the planning, construction, maintenance, operation, and

inspection activities involving rail crossings. The Task Force directed

its attention to those grade crossing issues for which there were no

well-defined standards, practices, or information. It was in these five

problem areas outside the scope of the Action Plan, that the Task Force

felt additional improvements in grade crossing safety could be made.''

FRA is continuing its implementation of the Action Plan's

recommendations while at the same time it works to ensure that the

recommendations of the Safety Task Force are carried out.

[[Page 42734]]

The NPRM

The impetus in proposing the NPRM was the goal, as stated in the

Action Plan, to ``review the allocation of responsibilities for the

selection and installation of warning devices and the potential for

uniform nationwide standards.'' The NPRM, together with the subsequent

hearings and wide range of comments stimulated extensive discussion and

debate on the issue. FRA notes that certain groups generated interest

and comments by claiming that the proposed rule ``would shield railroad

companies from liability when their negligence contributes to such

accidents.'' This and similar claims made in mass mailings to FRA are

clearly misleading statements. FRA believes that there are valid policy

arguments on both sides of the issue in this debate and that resorting

to misleading statements apparently in order to increase the volume of

comments does not lead to helpful public airing of legitimate concerns.

Spreading such obvious misinformation can only take advantage of well

meaning individuals who have not had the opportunity to read the

proposed rule themselves, but who rely on the integrity and accuracy of

those providing the information. FRA is disappointed that such groups

apparently felt that the strength of their legitimate objections to the

rule were insufficient.

While some of the debate surrounding the proposal was based on

incorrect information, much of the discussion raised valid questions

regarding what should be the proper role of railroads, state and local

governments, and the federal government in the selection and

installation of grade crossing warning systems. The discussion remained

on a general and conceptual level however. The overwhelming majority of

comments were conclusory in nature and did not add hard data which

could be helpful to FRA in its decision making. Opponents claimed that

the rule would effectively shift tort liability from railroads to state

and local governments. Opponents of the rule also stated that there was

no evidence that money saved by railroads would be spent on grade

crossing safety and that the rule would remove any incentive a railroad

may have to participate in crossing safety programs. Rule proponents,

on the other hand, claimed that safety would be enhanced by more

rational grade crossing planning.

Absent from virtually all rule comments and testimony, however,

were data supporting the conclusions drawn from the rule. In the NPRM,

FRA stated that it ``believes that railroads have many powerful

incentives to continue their longstanding policy of voluntarily

providing matching funds for federally funded grade crossing projects,

comment is sought concerning whether this proposal will affect the

level of railroad participation in such projects.'' FRA again received

only conclusory comments rather than data on past, present or projected

levels of participation.

Termination of rulemaking

FRA continues to believe that the proper relationship between

railroads and state and local governments in terms of selection and

installation of warning systems is as proposed in the NPRM: railroad

should furnish governmental authorities with sufficient information to

enable those authorities to make rational selection and installation

decisions. However, at this time, in light of the lack of supporting

hard data in the record and the magnitude of other regulatory and

program safety initiatives being undertaken by FRA, this rulemaking is

being terminated.

We note that this rulemaking has been a worthwhile first step in

addressing the issue of allocation of responsibility for the selection

and installation of warning devices and the potential for uniform

nationwide standards in this area. We are confident that further steps

in addressing these issues will build upon the information and

discussion generated by this proceeding.

In light of the foregoing, FRA is hereby terminating this

rulemaking.

Issued in Washington, D.C. on August 5, 1997.

Jolene M. Molitoris,

Administrator.

[FR Doc. 97-20991 Filed 8-7-97; 8:45 am]

BILLING CODE 4910-06-P