[Federal Register Volume 86, Number 139 (Friday, July 23, 2021)]
[Rules and Regulations]
[Pages 38931-38934]
[FR Doc No: 2021-15535]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2020-0221; FRL-8761-02-R4]

Air Plan Approval; Tennessee; Knoxville Area Limited Maintenance
Plan for the 1997 8-Hour Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve a state implementation plan (SIP) revision submitted
by the State of Tennessee, through the Tennessee Department of
Environment and Conservation (TDEC), Air Pollution Control Division,
via a letter dated January 23, 2020. The SIP revision includes the 1997
8-hour ozone national ambient air quality standards (NAAQS) Limited
Maintenance Plan (LMP) for the Knoxville, Tennessee Area (hereinafter
referred to as the ``Knoxville Area'' or ``Area''). The Knoxville Area,
as defined in this action, is comprised of Jefferson, Loudon, and
Sevier Counties in their entireties, the portion of Cocke County that
falls within the boundary of the Great Smoky Mountains National Park,
and a portion of Anderson County that excludes the area surrounding
Tennessee Valley Authority (TVA) Bull Run Fossil Plant. EPA is
approving the Knoxville Area LMP because it provides for the
maintenance of the 1997 8-hour ozone NAAQS within the Knoxville Area
through the end of the second 10-year portion of the maintenance
period. The effect of this action is to make certain commitments
related to maintenance of the 1997 8-hour ozone NAAQS in the Knoxville
Area federally enforceable as part of the Tennessee SIP.

DATES: This rule is effective August 23, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R04-OAR-2020-0221. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the internet and will be publicly available only in hard copy
form. Publicly available docket materials can either be retrieved
electronically via www.regulations.gov or in hard copy at the Air
Regulatory

Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. EPA requests that if at
all possible, you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The Regional
Office's official hours of business are Monday through Friday 8:30 a.m.
to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Sarah LaRocca, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is
(404) 562-8994. Ms. LaRocca can also be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    In 1979, under section 109 of the Clean Air Act (CAA or Act), EPA
established primary and secondary NAAQS for ozone at 0.12 parts per
million (ppm), averaged over a 1-hour period. See 44 FR 8202 (February
8, 1979). On July 18, 1997, EPA revised the primary and secondary NAAQS
for ozone to set the acceptable level of ozone in the ambient air at
0.08 ppm, averaged over an 8-hour period. See 62 FR 38856 (July 18,
1997).\1\ EPA set the 8-hour ozone NAAQS based on scientific evidence
demonstrating that ozone causes adverse health effects at lower
concentrations and over longer periods of time than was understood when
the pre-existing 1-hour ozone NAAQS was set. EPA determined that the 8-
hour ozone NAAQS would be more protective of human health, especially
children and adults who are active outdoors, and individuals with a
pre-existing respiratory disease, such as asthma.
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    \1\ In March 2008, EPA completed another review of the primary
and secondary ozone NAAQS and tightened them further by lowering the
level for both to 0.075 ppm. See 73 FR 16436 (March 27, 2008).
Additionally, in October 2015, EPA completed a review of the primary
and secondary ozone NAAQS and tightened them by lowering the level
for both to 0.070 ppm. See 80 FR 65292 (October 26, 2015).
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    Following promulgation of a new or revised NAAQS, EPA is required
by the CAA to designate areas throughout the nation as attaining or not
attaining the NAAQS. On April 15, 2004, EPA designated the Knoxville
1997 NAAQS Area, which is comprised of Anderson, Blount, Knox,
Jefferson, Loudon, and Sevier Counties in their entireties, and the
portion of Cocke County that falls within the boundary of the Great
Smoky Mountains National Park, as nonattainment for the 1997 8-hour
ozone NAAQS, and the designation became effective on June 15, 2004. See
69 FR 23858 (April 30, 2004). Similarly, on May 21, 2012, EPA
designated areas as unclassifiable/attainment or nonattainment for the
2008 8-hour ozone NAAQS. EPA designated Blount and Knox Counties and
the portion of Anderson County surrounding the TVA Bull Run Fossil
Plant as nonattainment for the 2008 8-hour ozone NAAQS and classified
as a marginal nonattainment area (hereinafter referred to as the
``Knoxville 2008 NAAQS Area''). This designation became effective on
July 20, 2012.\2\ In addition, on November 16, 2017, areas were
designated for the 2015 8-hour ozone NAAQS. The Knoxville 1997 NAAQS
Area \3\ was designated attainment/unclassifiable for the 2015 8-hour
ozone NAAQS, with an effective date of January 16, 2018.\4\
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    \2\ See 77 FR 30088.
    \3\ The ``Knoxville 1997 NAAQS Area'' encompasses both the
``Knoxville Area'' and the ``Knoxville 2008 NAAQS Area''.
    \4\ See 82 FR 54232 (November 16, 2017).
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    A state may submit a request to redesignate a nonattainment area
that is attaining a NAAQS to attainment, and, if the area has met other
required criteria described in section 107(d)(3)(E) of the CAA, EPA may
approve the redesignation request.\5\ One of the criteria for
redesignation is to have an approved maintenance plan under CAA section
175A. The maintenance plan must demonstrate that the area will continue
to maintain the NAAQS for the period extending ten years after
redesignation, and it must contain such additional measures as
necessary to ensure maintenance and such contingency provisions as
necessary to assure that violations of the NAAQS will be promptly
corrected. Eight years after the effective date of redesignation, the
state must also submit a second maintenance plan to ensure ongoing
maintenance of the NAAQS for an additional ten years pursuant to CAA
section 175A(b) (i.e., ensuring maintenance for 20 years after
redesignation).
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    \5\ Section 107(d)(3)(E) of the CAA sets out the requirements
for redesignating a nonattainment area to attainment. They include
attainment of the NAAQS, full approval of the applicable SIP
pursuant to CAA section 110(k), determination that improvement in
air quality is a result of permanent and enforceable reductions in
emissions, demonstration that the state has met all applicable
section 110 and part D requirements, and a fully approved
maintenance plan under CAA section 175A.
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    EPA has published long-standing guidance for states on developing
maintenance plans.\6\ The Calcagni memo provides that states may
generally demonstrate maintenance by either performing air quality
modeling to show that the future mix of sources and emission rates will
not cause a violation of the NAAQS or by showing that projected future
emissions of a pollutant and its precursors will not exceed the level
of emissions during a year when the area was attaining the NAAQS (i.e.,
attainment year inventory). See Calcagni memo at page 9. EPA clarified
in three subsequent guidance memos that certain areas could meet the
CAA section 175A requirement to provide for maintenance by showing that
the area was unlikely to violate the NAAQS in the future, using
information such as the area's design value \7\ being significantly
below the standard and the area having a historically stable design
value.\8\ EPA refers to a maintenance plan containing this streamlined
demonstration as an LMP.
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    \6\ John Calcagni, Director, Air Quality Management Division,
EPA Office of Air Quality Planning and Standards (OAQPS),
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' September 4, 1992 (Calcagni memo).
    \7\ The ozone design value for a monitoring site is the 3-year
average of the annual fourth-highest daily maximum 8-hour average
ozone concentrations. The design value for an ozone area is the
highest design value of any monitoring site in the area.
    \8\ See ``Limited Maintenance Plan Option for Nonclassifiable
Ozone Nonattainment Areas'' from Sally L. Shaver, OAQPS, dated
November 16, 1994; ``Limited Maintenance Plan Option for
Nonclassifiable CO Nonattainment Areas'' from Joseph Paisie, OAQPS,
dated October 6, 1995; and ``Limited Maintenance Plan Option for
Moderate PM10 Nonattainment Areas'' from Lydia Wegman,
OAQPS, dated August 9, 2001. Copies of these guidance memoranda can
be found in the docket for this proposed rulemaking.
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    EPA has interpreted CAA section 175A as permitting the LMP option
because section 175A of the Act does not define how areas may
demonstrate maintenance, and in EPA's experience implementing the
various NAAQS, areas that qualify for an LMP and have approved LMPs
have rarely, if ever, experienced subsequent violations of the NAAQS.
As noted in the LMP guidance memoranda, states seeking an LMP must
still submit the other maintenance plan elements outlined in the
Calcagni memo, including: An attainment emissions inventory, provisions
for the continued operation of the ambient air quality monitoring
network, verification of continued attainment, and a contingency plan
in the event of a future violation of the NAAQS. Moreover, a state
seeking an LMP must still submit its section 175A maintenance plan as a
revision to its SIP, with all attendant notice and comment procedures.
While the LMP

guidance memoranda were originally written with respect to certain
NAAQS,\9\ EPA has extended the LMP interpretation of section 175A to
other NAAQS and pollutants not specifically covered by the previous
guidance memos.\10\
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    \9\ The prior memos addressed: Unclassifiable areas under the 1-
hour ozone NAAQS, nonattainment areas for the PM10
(particulate matter with an aerodynamic diameter less than 10
microns) NAAQS, and nonattainment for the carbon monoxide (CO)
NAAQS.
    \10\ See, e.g., 79 FR 41900 (July 18, 2014) (approval of the
second ten-year LMP for the Grant County 1971 SO2
maintenance area).
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    In a notice of proposed rulemaking (NPRM) published on June 11,
2021 (86 FR 31218), EPA proposed to approve Tennessee's LMP because the
State made a showing, consistent with EPA's prior LMP guidance, that
the Area's ozone concentrations are well below the 1997 8-hour ozone
NAAQS and have been historically stable and that it met the other
maintenance plan requirements. The details of Tennessee's submission
and the rationale for EPA's action are explained in the proposed
rulemaking. Comments on the June 11, 2021, NPRM were due on or before
July 12, 2021. EPA did not receive any comments on the June 11, 2021,
NPRM.

II. Final Action

    EPA is taking final action to approve the Knoxville Area LMP for
the 1997 8-hour ozone NAAQS, submitted by TDEC on January 23, 2021, as
a revision to the Tennessee SIP. EPA is approving the Knoxville Area
LMP because it includes a sufficient update of the various elements of
the 1997 8-hour ozone NAAQS Maintenance Plan approved by EPA for the
first 10-year portion of the maintenance period (including emissions
inventory, assurance of adequate monitoring and verification of
continued attainment, and contingency provisions) and retains the
relevant provisions of the SIP under sections 110(k) and 175A of the
CAA.
    EPA also finds that the Knoxville Area qualifies for the LMP option
and that the Knoxville Area LMP is sufficient to provide for
maintenance of the 1997 8-hour ozone NAAQS in the Knoxville Area over
the second 10-year maintenance period (i.e., through 2031).

III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. This action merely
approves state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For that
reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 21, 2021. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: July 15, 2021.
John Blevins,
Acting Regional Administrator, Region 4.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

0
2. In Sec.  52.2220, amend the table in paragraph (e) by adding, at the
end of the table, the entry ``1997 8-Hour Ozone Second 10-Year Limited
Maintenance Plan for the Knoxville, Tennessee Area'' to read as
follows:

Sec.  52.2220  Identification of plan.

* * * * *
    (e) * * *

                                EPA-Approved Tennessee Non-Regulatory Provisions
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                                    Applicable
  Name of non-regulatory SIP       geographic or          State        EPA approval           Explanation
          provision             nonattainment area   effective date        date
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                                                  * * * * * * *
1997 8-Hour Ozone Second 10-   Jefferson, Loudon,          1/8/2020  7/23/2021,
 Year Limited Maintenance       and Sevier Counties                   [Insert
 Plan for the Knoxville,        in their                              citation of
 Tennessee Area.                entireties, the                       publication].
                                portion of Cocke
                                County that falls
                                within the boundary
                                of the Great Smoky
                                Mountains National
                                Park, and a portion
                                of Anderson County
                                that excludes the
                                area surrounding
                                Tennessee Valley
                                Authority (TVA)
                                Bull Run Fossil
                                Plant.
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[FR Doc. 2021-15535 Filed 7-22-21; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: May 14, 2009 (Volume 74, Number 92)]
[Notices]
[Page 22766]
[DOCID:fr14my09-73]

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SECURITIES AND EXCHANGE COMMISSION

Proposed Extension of Existing Collection; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of Investor Education and Advocacy, Washington, DC
20549-0213.

Extension:
    Rule 17a-6; OMB Control No. 3235-0489; SEC File No. 270-433.

    Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') is soliciting comments on the collection of
information summarized below. The Commission plans to submit this
existing collection of information to the Office of Management and
Budget for extension and approval.
    Rule 17a-6 (17 CFR 240.17a-6) under the Securities Exchange Act of
1934 (15 U.S.C. 78a et seq.) permits national securities exchanges,
national securities associations, registered clearing agencies, and the
Municipal Securities Rulemaking Board (collectively, ``SROs'') to
destroy or convert to microfilm or other recording media records
maintained under Rule 17a-1, if they have filed a record destruction
plan with the Commission and the Commission has declared such plan
effective.
    There are currently 27 SROs: 17 national securities exchanges, 1
national securities association, and 9 registered clearing agencies. Of
the 27 SROs, 2 SRO respondents have filed a record destruction plan
with the Commission. The staff calculates that the preparation and
filing of a new record destruction plan should take 160 hours. Further,
any existing SRO record destruction plans may require revision, over
time, in response to, for example, changes in document retention
technology, which the Commission estimates will take much less than the
160 hours estimated for a new plan. Thus, the total annual compliance
burden is estimated to be 60 hours per year. The approximate cost per
hour is $305, resulting in a total cost of compliance for these
respondents of $18,300 per year (30 hours @ $305 per hour).
    Written comments are invited on: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
estimate of the burden of the collection of information; (c) ways to
enhance the quality, utility, and clarity of the information to be
collected; and (d) ways to minimize the burden of the collection of
information on respondents, including through the use of automated
collection techniques or other forms of information technology.
Consideration will be given to comments and suggestions submitted in
writing within 60 days of this publication.
    Comments should be directed to Charles Boucher, Director/Chief
Information Officer, Securities and Exchange Commission, c/o Shirley
Martinson, 6432 General Green Way, Alexandria, VA 22312 or send an e-
mail to<EMAIL_ADDRESS>
    Dated: May 7, 2009.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-11170 Filed 5-13-09; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register: November 13, 2009 (Volume 74, Number 218)]
[Proposed Rules]
[Page 58589-58596]
[DOCID:fr13no09-23]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2009-0032; Notice No. 3]
RIN 2130-AC20

State Highway-Rail Grade Crossing Action Plans

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: On September 2, 2009, FRA published a direct final rule in the
Federal Register requiring the ten States with the most highway-rail
grade crossing collisions, on average, over the past three years, to
develop State

highway-rail grade crossing action plans. FRA received one adverse
comment regarding the direct final rule. Under FRA regulations, FRA
must withdraw a direct final rule where an adverse comment is
submitted. As a result, in a separate document elsewhere in this issue
of the Federal Register, FRA is publishing a removal of the direct
final rule provisions, which removes the changes effected by the direct
final rule. FRA is also contemporaneously publishing this NPRM. The
NPRM complies with a statutory mandate that the Secretary of
Transportation (Secretary) issue a rule to require the ten States with
the most highway-rail grade crossing collisions, on average, over the
past three years, to develop State highway-rail grade crossing action
plans. This proposed rule is not intended for general application;
instead, it would only apply to the ten identified States with the most
highway-rail grade crossing collisions over the specified period of
time. The proposed rule addresses the contents of the highway-rail
grade crossing action plans and certain time periods for plan
implementation and coverage.

DATES: Written Comments: Written comments on the proposed rule must be
received by December 14, 2009. Comments received after that date will
be considered to the extent possible without incurring additional
expense or delay.
    Public Hearing: If any person desires an opportunity for oral
comment, he or she should notify FRA in writing and specify the basis
for the request. FRA will schedule a public hearing in connection with
this proceeding if the agency received a written request for a hearing
by December 14, 2009.

ADDRESSES: Comments: Comments related to Docket Number FRA-2009-0032,
may be submitted by any of the following methods:
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave., SE., W12-140, Washington, DC
20590.
     Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Ave., SE., Washington, DC between 9 a.m.
and 5 p.m. Monday through Friday, except Federal Holidays.
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting
comments.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information. Please see the Privacy Act heading later in this document
for more Privacy Act information.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time, or to
Room W12-140 on the Ground level of the West Building, 1200 New Jersey
Ave., SE., Washington, DC between 9 a.m. and 5 p.m. Monday through
Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Ron Ries, Office of Safety, FRA, 1200
New Jersey Ave., SE., RRS-23, Mail Stop 25, Washington, DC 20590
(Telephone<PHONE_NUMBER>), or Zeb Schorr, Trial Attorney, Office of
Chief Counsel, FRA, 1200 New Jersey Ave., SE., Mail Stop 10,
Washington, DC 20590 (Telephone<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

I. Withdrawal of Direct Final Rule

    Pursuant to FRA's direct final rulemaking procedures set forth at
49 CFR 211.33, FRA published a direct final rule in the Federal
Register on September 2, 2009 (74 FR 45336). FRA received one adverse
comment regarding the direct final rule. Pursuant to 49 CFR 211.33(d),
FRA must withdraw a direct final rule where an adverse comment is
submitted. FRA issued and submitted 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, FRA is publishing a removal of the direct
final rule provisions in this issue of the Federal Register, which
removes the changes effected by the direct final rule, while
contemporaneously publishing this NPRM.

II. Notice of Proposed Rulemaking

A. Background

    The proposed rule is intended to reduce collisions at highway-rail
grade crossings in the ten identified States, and to comply with
section 202 of the Rail Safety Improvement Act of 2008 (RSIA), Public
Law 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. FRA recommends that
the action plans include a proposed implementation schedule, although
FRA recognizes that any such schedule would be subject to many factors,
including the availability of funds and personnel. In addition, any
implementation schedule would only be for the purpose of providing
quality planning for the timelines identified.
    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 U.S.C. 20158, 20167, or 22501, to a
State identified under this section, on the development of such State's
plan.
    Lastly, section 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, section 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.

B. State Identification

    As discussed, 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 has
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 and copies
of such letters will be placed in the public docket of this proceeding.

C. Time Period To Develop State Action Plan and Duration of Plan

    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. A five-year period is appropriate because many
of the remedial actions that may be included in these plans (e.g.,
closures and grade separations) may take up to five years to implement.
In addition, any identified State that has already developed an action
plan in conjunction with a recommendation from DOT's Office of
Inspector General must ensure compliance with any final rule arising
from this NPRM and must resubmit the plan as required.

D. Assistance and Coordination

    FRA would 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 proposed State highway-rail grade
crossing action plans. FRA's Safetydata Web site (http://
www.safetydata.fra.dot.gov) also contains detailed data that may be of
use in the development of the plans. In addition, the proposed State
highway-rail grade crossing action plans may be coordinated with other
State or Federal planning requirements. For example, States may want to
coordinate such plans with their Strategic Highway Safety Plans that
are required by SAFETEA-LU, as appropriate.

E. Conditioning the Awarding of Grants

    Section 202 also empowers the Secretary to condition the awarding
of any grants under 49 U.S.C. 20158, 20167, or 22501, to an identified
State under this section on the development of such State's plan.
Although FRA does not anticipate employing this authority, FRA reserves
its right to pursue such a course of action in the event that an
identified State fails to comply with a final rule that arises from
this proposed rule.

F. Section-by-Section Analysis

    Section 234.1. This paragraph discusses the scope of this part. The
amendment proposed to this paragraph would include reference to Sec.
234.11, State Highway-Rail Grade Crossing Action Plans, as being within
this part's scope.
    Section 234.3. This paragraph discusses what entities are subject
to this part. The amendment proposed to this paragraph would except
Sec.  234.11, State Highway-Rail Grade Crossing Action Plans, from
discussion in this section.
    Section 234.4. This paragraph discusses the preemptive effect of
this part. The amendment proposed to this paragraph would permit State
tort actions, arising from events or activities occurring on or after
January 18, 2002, that: Allege a violation of the Federal standard of
care established by this part; allege a failure to comply with a
party's own plan, rule, or standard created pursuant to this part; or
allege a violation of a State law, regulation, or order that is
necessary to eliminate or reduce an essentially local safety or
security hazard, is not incompatible with a law, regulation, or order
of the United States Government, and does not unreasonably burden
interstate commerce.
    Section 234.6(a) and (b). These paragraphs discuss the civil and
criminal penalties a person may be subject to when violating
requirements of this part. The amendment proposed to these paragraphs
would provide that a violation of Sec.  234.11, State Highway-Rail
Grade Crossing Action Plans, would not give rise to either a civil or
criminal penalty.
    Section 234.11(a). This paragraph discusses that the purpose of
this proposed rule is to reduce collisions at highway-rail grade
crossings in the ten identified States that have had the most highway-
rail grade crossing collisions, on average, over the past three years.
This paragraph proposes to make clear that the regulation would not
restrict any other State, or other entity, from adopting a highway-rail
grade crossing action plan, nor would it restrict any of the identified
States from adopting a plan with additional or more stringent
requirements not inconsistent with this regulation.
    Section 234.11(b). This paragraph proposes that this section would
apply to the ten States that have had the most highway-rail grade
crossing collisions, on average, during the calendar years 2006, 2007,
and 2008.
    Section 234.11(c). This paragraph proposes to require that each of
the ten identified States develop a State highway-rail grade crossing
action plan and submit such plans to FRA for review and approval not
later than one year after the date this proposed regulation goes into
effect. This paragraph also details the proposed requirements of the
State highway-rail grade crossing action plans, including that the
plans: Identify specific solutions for improving safety at crossings,
including highway-rail grade crossing closures or grade separations;
focus on crossings that have experienced multiple accidents or are at
high risk for such accidents; and cover a five-year period.
    Section 234.11(d). This paragraph identifies the FRA contact
information to which the identified States must direct the proposed
highway-rail grade crossing action plans for review and approval. This
paragraph also proposes that FRA would review and approve or disapprove
a State highway-rail grade crossing action plan within 60 days of
receiving the plan. This paragraph further proposes that, if the
proposed State highway-rail grade crossing action plan is disapproved,
FRA would notify the affected State as to the specific areas in which
the proposed plan is deficient, and the State would have to correct all
deficiencies within 30 days following receipt of written notice from
FRA. Lastly, this paragraph proposes that 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 that State's highway-rail grade
crossing action plan.

G. Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures
    This discussion represents the regulatory impact analysis (RIA).
There is not a separate RIA for inclusion in the public docket. This
NPRM has been evaluated in accordance with existing policies and
procedures, and has been determined not to be significant under both
Executive Order 12866 and DOT policies and procedures (44 FR 11034;
Feb. 26, 1979). The ten States identified are Alabama, California,
Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas.
These ten States would incur the full burden associated with
implementation of this NPRM. The estimated quantified compliance cost
for these ten States is approximately $259,000 over the next year. The
benefits resulting from the prevention of collisions at highway-rail
grade crossings are expected to exceed the burden. This analysis
includes a quantitative burden measurement and a

qualitative benefit discussion for this NPRM. FRA requests comments on
this economic analysis and its underlying assumptions.
    The primary burden imposed would be for State labor resources spent
to comply with development of the mandated action plans. FRA estimates
that, on the average, each State would assign the plan development
responsibilities to a team composed of a program manager, a project
engineer, a budget analyst, a business specialist, and a legal expert.
Listed in Table A are the aggregate salary estimates and man-year
allocations for the entire mandated population.

                         Table A--Aggregated Salary Summary of the 10 Identified States
----------------------------------------------------------------------------------------------------------------
                    Position                          Salary        Hourly rate     Labor hours      Estimate
----------------------------------------------------------------------------------------------------------------
Program Manager, Transportation.................      $83,000.00          $39.90              40       $2,793.27
Project Engineer................................       69,000.00           33.17              80        4,644.23
Budget Analyst..................................       52,000.00           25.00              40        1,750.00
Business Specialist, Transportation.............       43,000.00           20.67             400       14,471.15
Legal Expert....................................       68,000.00           32.69              40        2,288.46
                                                 ---------------------------------------------------------------
                                                                                25,947.12
----------------------------------------------------------------------------------------------------------------

    The estimated cost is found as the product of the hourly rate, the
labor hours, and an estimated overhead rate. Overhead is considered at
75% of the hourly rate. Example Calculation: [($39.90 per hour) * (40
hours) * (1 + .75 (overhead rate))] = $2,793.27.
    The proposed submission process calls for FRA to review and approve
each submitted plan according to the Federal mandate. FRA anticipates
that the review time for each of the initial submissions would be 6
hours per plan. Listed in Table B is the aggregated federal burden for
the initial and resubmitted plans.

                                       Table B--Federal Compliance Summary
----------------------------------------------------------------------------------------------------------------
                     Tasking                          States        Labor hours        Rate          Estimate
----------------------------------------------------------------------------------------------------------------
Plan Submission Review..........................              10               6          $52.50       $5,512.50
                                                 ---------------------------------------------------------------
                                                                                5,512.50
----------------------------------------------------------------------------------------------------------------

    To summarize quantitatively, the State burden that would be imposed
by this proposed rule was derived from the estimated sum of the
original burden submission from the ten identified States and the
burden resubmission from the quantum that may not comply during the
initial submission. FRA considers $259,000 to represent the aggregated
State burden for the one-year period of this proposed requirement.
Listed in Table C is the aggregated burden summary.

                                       Table C--Aggregated Burden Summary
----------------------------------------------------------------------------------------------------------------
                                                                                Total
                                                                     Estimate        Quantity        estimates
----------------------------------------------------------------------------------------------------------------
State Submission Burden.........................................      $25,947.12              10     $259,471.15
                                                                 -----------------------------------------------
                                                                                259,471.15
----------------------------------------------------------------------------------------------------------------

    The development of State highway-rail grade crossing action plans
would likely result in a reduction in highway-rail grade crossing
collisions. Development of such plans would enhance these States'
ability to view their population of grade crossings, interpret
historical accident information, evaluate the overall state of highway-
rail grade crossing safety, and identify particular areas in need of
attention. Any patterns of collisions or causal factors would 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 would identify specific solutions for
improving safety at individual crossings, including crossing closures
or grade separations, with special focus on those crossings that are
found to have experienced multiple accidents or that show a heightened
risk for accidents. Special emphasis corridors or high risk corridors
may also be identified as a result of the analysis component of the
State action plan. As each State's highway-rail grade crossing action
plan may be coordinated with other State or Federal planning
requirements, additional benefits may be obtained through closer
integration of grade crossing safety issues into the overall State
transportation safety planning efforts.
    During the three-year time period, 2006 through 2008, the ten
States with the most grade crossing collisions, as currently reported,
accounted for 51%, or almost 4,200 accidents, of all grade crossing
collisions nationwide. Highway vehicle damage accounted for more than
$28.5 million over this three-year time period, and a combined total of
546 lives were lost. Economic research indicates that $6.0 million per
statistical life saved is a reasonable estimate of people's willingness
to pay for transportation safety improvements. FRA therefore estimates
an accumulated $3.28 billion to represent the statistical value of the
lives lost as a result of grade crossing collisions in these ten
States.

Finally, there were 1,666 injuries over the three-year time period in
these ten States. Assuming very conservatively, for purposes of this
analysis, that these were all minor in nature (e.g., injuries that may
not require professional medical treatment and where recovery is
usually rapid and complete) and thus assigning a cost of $12,000 per
injury (i.e., 0.2% of the value of a statistical life), injury costs
for this period totaled close to $20 million. Thus, the cost to society
of the average incident in the three-year time period was $796,000.
Prevention of one such incident alone would more than exceed the cost
of implementing this proposed rule. FRA believes that it is reasonable
to expect that such an incident may be prevented by the implementation
of this proposed rule. In addition to the safety benefits, other
potential benefits would include: Increased train and highway traffic
mobility by reducing collisions, fewer demands on emergency services to
respond to crossing collisions, and some improvement in air quality by
reducing emissions from vehicles that are unable to move due to
crossing collisions.
    The findings of this analysis are sensitive to its assumptions. The
burden estimates are largely driven by the composition of the State's
team and the level of effort expended by each individual. Such factors
may vary from team to team. FRA realizes that the level of expertise
per State, per team, per member, would vary and, therefore, has applied
a 20 percent sensitivity factor above and below the baseline as
follows:

                                Table D--Aggregated Sensitivity Analysis Summary
----------------------------------------------------------------------------------------------------------------
                                                                   Estimate           Low              High
----------------------------------------------------------------------------------------------------------------
Aggregated Submission Burden.................................     $259,471.15      $207,576.92      $311,365.38
----------------------------------------------------------------------------------------------------------------

    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 ranges from $208,000 to $311,000.
Regulatory Flexibility Act
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of proposed and final rules to assess their impact on
small entities, unless the Secretary certifies that the rule would not
have a significant economic impact on a substantial number of small
entities. Pursuant to section 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, section 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 proposal.
    FRA certifies that this proposal would not have a significant
economic impact on a substantial number of small entities, as this rule
only affects ten identified States. To the extent that this proposal
would have any impact on small entities, FRA believes the impact would
not be significant. FRA requests comments regarding this analysis.
Paperwork Reduction Act
    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) for review and approval in accordance with the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501 et seq. The section that contains
the new information collection requirements is noted below, and the
estimated burden times to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                Average time
            CFR section              Respondent  universe       Total annual       per response    Total annual
                                                                 responses            (hours)      burden hours
----------------------------------------------------------------------------------------------------------------
234.11--State Highway-Rail Grade    10 States............  10 plans.............             600           6,000
 Crossing Action Plans--
 Development and Submission of
 Plans.
Disapproval of State Highway-Rail   10 States............  5 revised plans......              80             400
 Grade Crossing Action Plan and
 Submission of Revised Plan.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: Whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at<PHONE_NUMBER>, or Ms. Nakia Jackson at
202-493-6073.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following
address<EMAIL_ADDRESS><EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information

requirements contained in this proposed rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. The final rule will respond
to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
Environmental Impact
    FRA has evaluated this NPRM in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999) as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and related regulatory requirements. FRA has determined that this
document is not a major FRA action (requiring the preparation of an
environmental impact statement or environmental assessment) because it
is categorically excluded from detailed environmental review pursuant
to section 4(c)(20) of FRA's Procedures. 64 FR 28545, 28547, May 26,
1999. In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this NPRM that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this NPRM is
not a major Federal action significantly affecting the quality of the
human environment.
Federalism Implications
    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 4, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
    This NPRM amends FRA's regulations regarding grade crossing safety.
Subject to a limited exception for essentially local safety or security
hazards, the requirements of FRA's regulations regarding grade crossing
safety are intended to establish a uniform Federal safety standard that
must be met, and State requirements covering the same subject would be
displaced, whether those standards are in the form of State statutes,
regulations, local ordinances, or other forms of State law, including
common law. Section 20106 of Title 49 of the United States Code
provides that all regulations prescribed by the Secretary related to
railroad safety preempt any State law, regulation, or order covering
the same subject matter, except a provision necessary to eliminate or
reduce an essentially local safety or security hazard that is not
incompatible with a Federal law, regulation, or order, and that does
not unreasonably burden interstate commerce. This is consistent with
past practice at FRA, and within the Department of Transportation.
    FRA has analyzed this NPRM in accordance with the principles and
criteria contained in Executive Order 13132. This NPRM complies with a
statutory mandate. FRA has not consulted with State and local officials
in regards to this rule. However, prior to enactment of the RSIA, FRA
did consult with State officials in conjunction with a recommendation
from DOT's Office of Inspector General that certain States develop
highway-rail grade crossing action plans, similar to the plans required
by the RSIA and this rule. Thus, FRA believes it is in compliance with
Executive Order 13132.
    This NPRM will not have a substantial effect on the States, on the
relationship between the Federal government and the States, or on the
distribution of power and responsibilities among the various levels of
government. In addition, this NPRM will not have any federalism
implications that impose substantial direct compliance costs on State
and local governments.
    FRA's regulations regarding grade crossing safety do not preempt
actions under State law seeking damages for personal injury, death, or
property damage alleging that a party has failed to comply with the
Federal standard of care established by this part. Provisions of a
railroad maintenance, inspection and testing program which exceed the
requirements of this part are not included in the Federal standard of
care. It is strongly in the interest of railroad safety for railroads
to exceed the requirements of Federal law and FRA encourages railroads
to do so. A railroad would be discouraged from setting a higher
standard for itself if it would be held liable in tort for exceeding
the requirements of Federal law, but failing to attain the higher
standard set for itself. Section 20106 of Title 49 of the United States
Code supports this distinction.
    It is a settled principle of statutory construction that, if the
statute is clear and unambiguous, it must be applied according to its
terms. Carcieri v. Salazar, 555 U.S.--(2009). Read by itself, Section
20106(a) of Title 49 of the United States Code provides for an FRA
rule, order or regulation to preempt state standards of care, but does
not expressly state whether anything replaces the preempted standards
of care for purposes of tort suits. The focus of that provision is
clearly on who regulates railroad safety: The Federal government or the
states. It is about improving railroad safety, for which Congress deems
nationally uniform standards to be necessary in the great majority of
cases. That purpose has collateral consequences for tort law which new
Section 20106 subsections (b) and (c) address. New subsection (b)(1)
creates three exceptions to the possible consequences flowing from
subsection (a). One of those exceptions ((b)(1)(B)) precisely addresses
an issue presented in Lundeen v. Canadian Pacific Ry. Co., 507
F.Supp.2d 1006 (D. Minn., 2007) that Congress wished to rectify: It
allows plaintiffs to sue a railroad in tort for violation of its own
plan, rule, or standard that it created pursuant to a regulation or
order issued by either of the Secretaries. None of those exceptions
covers a plan, rule, or standard that a regulated entity creates for
itself in order to produce a higher level of safety than Federal law
requires, and such plans, rules, or standards were not at issue in
Lundeen. The key concept of Sec.  20106(b) is permitting actions under
State law seeking

damages for personal injury, death, or property damage to proceed using
a Federal standard of care. A plan, rule, or standard that a regulated
entity creates pursuant to a Federal regulation logically fits the
paradigm of a Federal standard of care--Federal law requires it and
determines its adequacy. A plan, rule, or standard, or portions of one,
that a regulated entity creates on its own in order to exceed the
requirements of Federal law does not fit the paradigm of a Federal
standard of care--Federal law does not require it and, past the point
at which the requirements of Federal law are satisfied, says nothing
about its adequacy. That is why FRA believes section 20106(b)(1)(B)
covers the former, but not the latter. The basic purpose of the
statute--improving railroad safety--is best served by encouraging
regulated entities to do more than the law requires and would be
disserved by increasing the potential tort liability of regulated
entities that choose to exceed Federal standards, which would
discourage them from ever exceeding Federal standards again.
    In this manner, Congress adroitly preserved its policy of national
uniformity of railroad safety regulation expressed in section
20106(a)(1) and assured plaintiffs in tort cases involving railroads,
such as Lundeen, of their ability to pursue their cases by clarifying
that federal railroad safety regulations preempt the standard of care,
not the underlying causes of action in tort. Under this interpretation,
all parts of the statute are given meanings that work together
effectively and serve the safety purposes of the statute.
Unfunded Mandates Reform Act of 1995
    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $141,300,000 or more in any one
year, and before promulgating any final rule for which a general notice
of proposed rulemaking was published, the agency shall prepare a
written statement'' detailing the effect on State, local, and tribal
governments and the private sector. This NPRM will not result in the
expenditure, in the aggregate, of $141,300,000 or more in any one year,
and thus preparation of such a statement is not required.
Energy Impact
    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking that: (1)(i) Is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) is designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
FRA has evaluated this NPRM in accordance with Executive Order 13211.
FRA has determined that this NPRM will not have a significant adverse
effect on the supply, distribution, or use of energy. Consequently, FRA
has determined that this regulatory action is not a ``significant
energy action'' within the meaning of Executive Order 13211.
Privacy Act Information
    Interested parties should be aware that anyone is able to search
the electronic form of all comments received into any agency docket by
the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78), or you may visit http://www.regulations.gov.

List of Subjects in 49 CFR Part 234

    Highway safety; Penalties; Railroad safety; and Reporting and
recordkeeping requirements.

The Proposal

    In consideration of the foregoing, FRA proposes to amend part 234
of chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:

PART 234--GRADE CROSSING SIGNAL SYSTEM SAFETY AND STATE ACTION
PLANS

    1. The authority citation for part 234 is revised to read as
follows:

    Authority:  49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; Public
Law 110-432, Div. A, Sec.  202; and 49 CFR 1.49.

    2. The heading for part 234 is revised to read as set forth above.
    3. Section 234.1 is revised to read as follows:

Sec.  234.1  Scope.

    This part imposes minimum maintenance, inspection, and testing
standards for highway-rail grade crossing warning systems. This part
also prescribes standards for the reporting of failures of such systems
and prescribes minimum actions railroads must take when such warning
systems malfunction. This part also requires particular identified
States to develop State highway-rail grade crossing action plans. This
part does not restrict a railroad or a State from adopting and
enforcing additional or more stringent requirements not inconsistent
with this part.
    4. Section 234.3 is revised to read as follows:

Sec.  234.3  Application.

    With the exception of Sec.  234.11, this part applies to all
railroads except:
    (a) A railroad that exclusively operates freight trains only on
track which is not part of the general railroad system of
transportation;
    (b) Rapid transit operations within an urban area that are not
connected to the general railroad system of transportation; and
    (c) A railroad that operates passenger trains only on track inside
an installation that is insular; i.e., its operations are limited to a
separate enclave in such a way that there is no reasonable expectation
that the safety of the public--except a business guest, a licensee of
the railroad or an affiliated entity, or a trespasser--would be
affected by the operation. An operation will not be considered insular
if one or more of the following exists on its line:
    (1) A public highway-rail crossing that is in use;
    (2) An at-grade rail crossing that is in use;
    (3) A bridge over a public road or waters used for commercial
navigation; or
    (4) A common corridor with a railroad, i.e., its operations are
within 30 feet of those of any railroad.
    5. Section 234.4 is revised to read as follows:

Sec.  234.4  Preemptive effect.

    (a) Under 49 U.S.C. 20106, issuance of these regulations preempts
any State law, regulation, order covering the same subject matter,
except an additional or more stringent law, regulation, or order that
is necessary to eliminate or reduce an essentially local safety hazard;
is not incompatible with a law, regulation, or order of the United
States Government; and that does not impose an unreasonable burden on
interstate commerce.
    (b) This part establishes a Federal standard of care for the
maintenance, inspection and testing of grade crossing warning systems.
This part does not preempt an action under State law seeking damages
for personal injury, death, or property damage alleging that a party
has failed to comply with the Federal standard of care established by
this part. Provisions of a railroad maintenance, inspection and testing
program which exceed the requirements of this part are not included in
the Federal standard of care.
    6. Section 234.6 is revised to read as follows:

Sec.  234.6  Penalties.

    (a) Civil Penalty. Any person (an entity of any type covered under
1 U.S.C. 1, including but not limited to the following: A railroad; a
manager, supervisor, official, or other employee or agent of a
railroad; any owner, manufacturer, lessor, or lessee of railroad
equipment, track, or facilities; any independent contractor providing
goods or services to a railroad; and any employee of such owner,
manufacturer, lessor, lessee, or independent contractor) who violates
any requirement of this part, except for any violation of Sec.  234.11
of this part, or causes the violation of any such requirement is
subject to a civil penalty of at least $650, but not more than $25,000
per violation, except that: Penalties may be assessed against
individuals only for willful violations, and where a grossly negligent
violation or a pattern of repeated violations has created an imminent
hazard of death or injury to persons, or has caused death or injury, a
penalty not to exceed $100,000 per violation may be assessed. Each day
a violation continues shall constitute a separate offense. Appendix A
to this part contains a schedule of civil penalty amounts used in
connection with this rule. The railroad is not responsible for
compliance with respect to any condition inconsistent with the
technical standards set forth in this part where such variance arises
as a result of actions beyond the control of the railroad and the
railroad could not have prevented the variance through the exercise of
due diligence. The foregoing sentence does not excuse any instance of
noncompliance resulting from the actions of the railroad's employees,
agents, or contractors.
    (b) Criminal Penalty. Whoever knowingly and willfully makes, causes
to be made, or participates in the making of a false entry in reports
required to be filed by this part, or files a false report or other
document required to be filed by this part, except for any document
filed pursuant to Sec.  234.11 of this part, is subject to a $5,000
fine and 2 years imprisonment as prescribed by 49 U.S.C. 522(a) and
section 209(e) of the Federal Railroad Safety Act of 1970, as amended
(45 U.S.C. 438(e)).

Subpart B--Reports and Plans

    7. The title to Subpart B--Reports is revised to read as set forth
above.
    8. Section 234.11 is added to read as follows:

Sec.  234.11  State highway-rail grade crossing action plans.

    (a) Purpose. The purpose of this section is to reduce collisions at
highway-rail grade crossings in the ten States that have had the most
highway-rail grade crossing collisions, on average, during the calendar
years 2006, 2007, and 2008. This section does not restrict any other
State, or other entity, from adopting a highway-rail grade crossing
action plan. This section also does not restrict any of the States
required to develop action plans under this section from adopting a
highway-rail grade crossing action plan with additional or more
stringent requirements not inconsistent with this section.
    (b) Application. This section applies to the ten States that have
had the most highway-rail grade crossing collisions, on average, during
the calendar years 2006, 2007, and 2008.
    (c) Action Plans. (1) The ten identified States shall each develop
a State highway-rail grade crossing action plan and submit such a plan
to FRA for review and approval not later than [DATE 1 YEAR FROM
EFFECTIVE DATE OF FINAL RULE].
    (2) A State highway-rail grade crossing action plan shall:
    (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.
    (d) 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., SE., W12-140,
Washington, DC 20590; or e-mail to<EMAIL_ADDRESS>    (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 shall 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.

    Issued in Washington, DC, on November 5, 2009.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. E9-27242 Filed 11-12-09; 8:45 am]

BILLING CODE 4910-06-P


[Federal Register: September 23, 2005 (Volume 70, Number 184)]
[Notices]
[Page 55932-55933]
[DOCID:fr23se05-93]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52462; File No. SR-ISE-2005-43]

Self-Regulatory Organizations; International Securities Exchange,
Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule
Change Relating to Fee Changes

September 19, 2005.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on September 1, 2005, the International Securities Exchange, Inc.
(``ISE'' or ``Exchange'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule change as described in
Items I, II, and III below, which Items have been prepared by the ISE.
The ISE has designated this proposal as one establishing or changing a
due, fee, or other charge imposed by the ISE under Section
19(b)(3)(A)(ii) of the Act,\3\ and Rule 19b-4(f)(2) thereunder,\4\
which renders the proposal effective upon filing with the Commission.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The ISE is proposing to amend its Schedule of Fees to establish
fees for transactions in options on the DIAMONDS[supreg] Trust, Series
1, an exchange-traded fund.\5\ The text of the proposed rule change is
available on the ISE's Web site (http://www.iseoptions.com/legal/proposed_rule_changes.asp
), at the principal office of the ISE, and

at the Commission's Public Reference Room.
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    \5\ DIAMONDS[supreg] is a registered trademark of Dow Jones &
Company, Inc. (``Dow Jones'') for securities issued by the
Diamonds[supreg] Trust, Series 1 and has been licensed for use for
certain purposes by Dow Jones to PDR Services Corporation (``PDR'')
and the American Stock Exchange LLC (``Amex'') pursuant to a license
agreement with Dow Jones. DIAMONDS and options which have DIAMONDS
as their sole underlying interest (``DIAMONDS Options'') are not
sponsored, endorsed, sold, or promoted by Dow Jones. Dow Jones, PDR,
and Amex have not licensed or authorized ISE to (i) engage in the
creation, listing, provision of a market for trading, marketing, and
promotion of DIAMONDS Options or (ii) to use and refer to the
DIAMONDS[supreg] trademark in connection with the listing, provision
of a market for trading, marketing, and promotion of DIAMONDS
Options or with making disclosures concerning DIAMONDS Options under
any applicable federal or state laws, rules or regulations, and do
not sponsor, endorse, or promote such activity by ISE. ISE is not
affiliated in any manner with Dow Jones, PDR, or Amex.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the ISE included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The ISE has prepared summaries, set forth in Sections A,
B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange is proposing to amend its Schedule of Fees to
establish fees for transactions in options on the DIAMONDS[supreg]
Trust, Series 1 (``DIA''), an exchange-traded fund.\6\ Specifically,
the Exchange is proposing to adopt an execution fee and a comparison
fee for all transactions in options on DIA.\7\ The amount of the
execution fee and comparison fee for the product covered by this filing
shall be the same for all order types on the Exchange--that is, orders
for Public Customers \8\ and Non-Customers \9\ (which include Market
Makers and Firm Proprietary)--and shall be equal to the execution fee
and comparison fee, respectively, that are currently charged by the
Exchange for transactions by Non-Customers in equity options.\10\ The
Exchange believes the proposed rule change will further the Exchange's
goal of introducing new products to the marketplace that are
competitively priced.
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    \6\ The ISE represents that DIA constitutes ``Fund Shares,'' as
defined in ISE Rule 502(h). Telephone conversation between Samir
Patel, Assistant General Counsel, ISE, and Richard Holley III,
Special Counsel, Division of Market Regulation, Commission, on
September 8, 2005.
    \7\ The ISE represents that these fees will be charged only to
Exchange members. Telephone conversation between Samir Patel,
Assistant General Counsel, ISE, and Richard Holley III, Special
Counsel, Division of Market Regulation, Commission, on September 8,
2005.
    \8\ See ISE Rule 100(32) (defining ``Public Customer'' as a
person that is not a broker or dealer in securities).
    \9\ See ISE Rule 100(22) (defining ``Non-Customer'' as a person
or entity that is a broker or dealer in securities).
    \10\ The Commission notes that the applicable execution fee is
currently between $.21 and $.12 per contract side, depending on the
Exchange Average Daily Volume, and the comparison fee is currently
$.03 per contract per side.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b)(4) of the Act,\11\ which requires that an exchange
have an equitable allocation of reasonable dues, fees, and other
charges among its members and other persons using its facilities.
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    \11\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange believes that the proposed rule change does not impose
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from members or other interested
parties.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing rule change establishes or changes a due,
fee, or other charge imposed by the Exchange, it has become effective
pursuant to Section 19(b)(3)(A) of the Act \12\ and Rule 19b-4(f)(2)
\13\ thereunder. At any time within 60 days of the filing of such
proposed rule change, the Commission may summarily abrogate such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
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    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 17 CFR 19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and

arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File No. SR-ISE-2005-43 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-9303.

All submissions should refer to File Number SR-ISE-2005-43. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, all

written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal office of the ISE. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-ISE-2005-43 and should be submitted on or before October
14, 2005.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 05-19035 Filed 9-22-05; 8:45 am]

BILLING CODE 8010-01-P