
[Federal Register Volume 76, Number 43 (Friday, March 4, 2011)]
[Proposed Rules]
[Pages 11992-12012]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4759]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2009-0041, Notice No. 1]

49 CFR Part 234

RIN 2130-AC12


Systems for Telephonic Notification of Unsafe Conditions at 
Highway-Rail and Pathway Grade Crossings

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing amendments to its primary regulations on 
grade crossing safety. The major amendments proposed would require a 
railroad that dispatches a train through a public or private highway-
rail or pathway grade crossing to establish and maintain a system that 
allows a member of the public to call the railroad and report an 
emergency or other unsafe condition at the crossing. Upon receiving 
such a report, the railroad would be required to warn all trains 
authorized to operate through the crossing of the reported unsafe 
condition, inform local law enforcement of the reported unsafe 
condition, and either investigate the report itself or request that the 
railroad with maintenance responsibility for the crossing investigate 
the report. If the report is substantiated, the railroad with 
maintenance responsibility for the crossing would be required to take 
certain actions to remedy the condition found.

DATES: Written comments must be received by May 3, 2011. Comments 
received after that date will be considered to the extent possible 
without incurring additional expenses or delays.
    FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to May 3, 2011, one will be scheduled, and 
FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2009-0041 may 
be submitted by any of the following methods:
     Online: Comments should be filed at the Federal 
eRulemaking Portal, http://www.regulations.gov. Follow the online 
instructions for submitting comments.

[[Page 11993]]

     Fax: 202-493-2251.
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    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 in the SUPPLEMENTARY 
INFORMATION section of this document for Privacy Act information 
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or 
visit the Docket Management Facility, U.S. Department of 
Transportation, West Building, Ground floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. ET, Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Beth Crawford, Transportation 
Specialist, Grade Crossing Safety and Trespass Prevention, Office of 
Safety Analysis, FRA, 1200 New Jersey Avenue, SE., Mail Stop 25, 
Washington, DC 20590 (telephone: 202-493-6288), beth.crawford@dot.gov; 
or Matthew Navarrete, Trial Attorney, Office of Chief Counsel, FRA, 
1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590 
(telephone: 202-493-0738), matthew.navarrete@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Statutory Background
II. History of Accidents Relevant to this Rulemaking
III. History of Emergency Notification Systems
    A. In General
    B. Various ENS Programs in the United States
    C. FRA's 2006 Report to Congress
IV. Section-by-Section Analysis
V. Regulatory Impact
    A. Executive Order 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Determination
    C. Federalism
    D. International Trade Impact Assessment
    E. Paperwork Reduction Act
    F. Compliance with the Unfunded Mandates Reform Act of 1995
    G. Environmental Assessment
    H. Energy Impact
    I. Privacy Act

I. Statutory Background

    The proposed rule is intended specifically to help implement Sec. 
205 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-
432, Division A, which was enacted October 16, 2008, and generally to 
increase safety at highway-rail and pathway grade crossings. See 49 
U.S.C. 20152, Notification of grade crossing problems, and definitions 
in proposed Sec.  234.301. Sec. 205 of RSIA mandates that the Secretary 
of Transportation (Secretary) require certain railroad carriers 
(railroads) to take a series of specified actions related to setting up 
and using systems for the public to notify the dispatching railroad of 
grade crossing problems. A separate statutory provision, 49 U.S.C. 
20103, gives the Secretary very broad authority to prescribe rail 
safety regulations and issue rail safety orders pursuant to notice-and-
comment procedures. The Secretary has delegated the responsibility to 
carry out both Sec. 205 of RSIA and 49 U.S.C. 20103 to the 
Administrator of FRA. 49 CFR 1.49(m), (oo). Essentially, Sec. 205 of 
RSIA imposes a mandate requiring FRA as the Secretary's delegate to 
prescribe regulations or orders imposing the requirements specified in 
that section; FRA has chosen to require the railroads to set up and use 
a notification program specified by Sec. 205 of RSIA by conducting a 
rulemaking and prescribing a regulation.
    In particular, under Sec. 205 of RSIA, FRA is to require railroads 
to ``establish and maintain a toll-free telephone service for rights-
of-way over which the railroad dispatches trains'' through ``the grade 
crossing of railroad trains on those rights-of-way and public or 
private roads,'' ``to directly receive calls reporting'' any of three 
types of unsafe conditions at the grade crossings or other safety-
related information involving such a grade crossing. Under that 
section, the three types of reportable unsafe conditions are as 
follows: (1) Malfunctions of warning signals, crossing gates, and other 
devices intended to promote safety at the highway-rail grade crossing; 
(2) disabled vehicles blocking railroad tracks at such grade crossings; 
and (3) obstructions to the view of a pedestrian or a vehicle operator 
for a reasonable distance in either direction of a train's approach to 
such a grade crossing. To the extent that the requirements proposed in 
this NPRM exceed the requirements specified by Sec. 205 of RSIA, such 
as covering pathway grade crossings, FRA relies primarily upon its 
general safety rulemaking authority under 49 U.S.C. 20103.
    In addition to specifying the requirement that the Secretary must 
impose on dispatching railroads to establish a telephonic notification 
system, Sec. 205 of RSIA includes a series of additional specifications 
to be reflected in FRA's regulation. When a railroad receives a report 
of a malfunction of a warning signal, crossing gate, and/or other 
device intended to promote safety at the grade crossing or a report of 
a disabled vehicle blocking a railroad track at a grade crossing 
through which the railroad dispatches a train, the dispatching railroad 
must immediately contact trains operating near the grade crossing to 
warn them of the malfunctioning device or disabled vehicle. After 
contacting the trains as necessary, the dispatching railroad must 
contact, as necessary, appropriate public safety officials having 
jurisdiction over the grade crossing to provide them with the 
information necessary for them to direct traffic, assist in the removal 
of the disabled vehicle, or carry out other activities. When a railroad 
receives a report of either obstructions to the view of a pedestrian or 
a vehicle operator for a reasonable distance in either direction of a 
train's approach to the grade crossing or other safety information 
involving such grade crossings, the railroad must timely investigate 
the report, remove the obstruction if possible, or correct the unsafe 
condition.
    Further, under Sec. 205 of RSIA, FRA must require that the owner of 
the track at the grade crossing ``ensure the placement * * * of 
appropriately located signs'' bearing, at a minimum, a toll-free 
telephone number to be used by the public for placing calls to report 
unsafe conditions at the crossing to the railroad that dispatches 
trains on that right-of-way through the crossing, an explanation of the 
purpose of that toll-free telephone number, and the grade crossing 
number assigned to that crossing by the U.S. Department of 
Transportation (DOT) National Crossing Inventory File.
    Finally, Sec. 205 of RSIA allows FRA to waive the requirement in 
the mandated rule that the telephone service be toll-free for Class II 
and Class III rail carriers if the agency determines that the toll-free 
service would be cost prohibitive or unnecessary.

[[Page 11994]]

II. History of Accidents Relevant to This Rulemaking

    There are approximately 221,000 public and private at-grade 
highway-rail and pathway grade crossings in the United States. In other 
words, the country has 221,000 locations where a collision can occur 
between a train and a car, truck, or other motor vehicle, or a 
pedestrian at any one time. Grade crossing collisions are among the 
most challenging areas in FRA's efforts to reduce deaths and injuries 
along the Nation's railroads. In fact, since 1997, grade crossing 
collisions have caused more railroad-related fatalities per year than 
any other single factor except for trespassing on railroad property. 
During the 11-year period from 1999-2009, 2,306 collisions occurred at 
highway-rail and pathway grade crossings where a vehicle was stalled or 
sight obstructions were reported to FRA. See accident reporting 
regulations at 49 CFR part 225 and 49 CFR 234.7.
    A train striking a pedestrian can result in serious injury or 
death. Further, a collision between a train and a vehicle of any size 
can be catastrophic. Serious injuries or deaths are far more likely to 
occur with a collision between a train and a vehicle than with a 
collision between two vehicles. While significant improvements have 
been achieved over the last two decades, grade crossing collisions 
still pose a significant public safety threat that can spiral beyond 
the immediate impact of the vehicle and train.
    The derailment of a train as a result of a collision at the grade 
crossing can have a disastrous effect on the train crew or even on an 
entire community, especially if the derailment results in a release of 
hazardous material that necessitates the evacuation of a neighborhood 
or the community. Moreover, if a passenger train derails as a result of 
a collision, the risk of injuries extends beyond the vehicle occupants 
to the crew and passengers of the train. This was the case in 1999 in 
Bourbonnais, Illinois, when a National Railroad Passenger Corporation 
(Amtrak) passenger train struck a truck loaded with steel at a highway-
rail grade crossing. Almost the entire train derailed, causing 11 
deaths and 131 injuries to the passengers and crew of the train.
    Other vehicles and pedestrians in the vicinity of a highway-rail or 
pathway grade crossing collision can also be at grave risk. This was 
the scenario in 1993 when an Amtrak passenger train collided with a 
gasoline tanker truck at a highway-rail grade crossing in Ft. 
Lauderdale, Florida. The truck driver was attempting to cross through a 
grade crossing where traffic was congested. The tanker truck was 
punctured when it was struck by the Amtrak train; a fire erupted and 
engulfed the truck and nine other vehicles near the crossing. The fire 
killed the driver of the truck and five occupants of three stopped 
vehicles near the grade crossing.

III. History of Emergency Notification Systems

A. In General

    The ability to provide an effective means for a member of the 
public to immediately alert the railroad to an emergency situation or 
other unsafe condition at a highway-rail or pathway grade crossing 
enables the railroad and local public safety officials to respond 
earlier to avert a serious incident. Currently, all Class I railroads 
have put in place some sort of means by which they can receive 
notification from the public of any emergency or unsafe condition at 
most of their grade crossings, whereas many regional and short line 
railroads do not have any such kind of notification system in place. 
The proposed rule would require certain railroads to implement such a 
system, which this proposed rule calls an Emergency Notification System 
(ENS), covering public and private highway-rail and pathway grade 
crossings.

B. Various ENS Programs in the United States

    In 1983, the State government of Texas established the first toll-
free call-in program in the United States that has enabled the public 
to notify a State call center of problems at the State's public 
highway-rail grade crossings equipped with automated warning devices. 
In the current Texas program, after receiving such a call, the Texas 
call center operated by the Texas Department of Public Safety in turn 
notifies the railroad involved. The call-in system requires that a sign 
be posted at the highway-rail grade crossing with the crossing's unique 
identifying number from the U.S. DOT National Crossing Inventory File, 
as well as a toll-free telephone number. Texas's call center has a 
dedicated computer with a modified inventory database that facilitates 
the call recipient's identification of the relevant crossing and 
railroad. The Center operator then calls the appropriate railroad and 
relays the report of the problem. At last report the Texas system 
handles more than 1,200 calls per month for the State's public 
crossings, even though only those crossings equipped with active 
warning devices are equipped with the signs containing the Center's 
toll-free telephone number. It should be noted that if FRA adopts the 
proposed rule, railroads using State programs for notification of 
unsafe conditions at grade crossings, such as Texas's program, may no 
longer comply with the regulation. However, a State would be allowed to 
operate as a ``third-party telephone service'' as described in the 
proposed rule as long as the program complies with all the conditions 
specified.
    Following the successful establishment of this program in Texas, 
and in part at the urging of FRA and the National Transportation Safety 
Board (NTSB), our Nation's major railroads have voluntarily adopted 
similar systems for the majority of their highway-rail and pathway 
grade crossings, sometimes including all grade crossings, i.e., systems 
not limited only to public highway-rail grade crossings or only to 
those equipped with active warning devices. Unfortunately, more than 
72,000 public and private highway-rail and pathway grade crossings 
belonging to our Nation's short line and regional railroads are not 
included. Many of these railroads do not have 24-hour operations and do 
not have the resources to establish such a call-in program.
    In 1994, Congress directed FRA to conduct pilot projects in at 
least two States to demonstrate the efficiency of such ``emergency 
notification system'' programs covering highway-rail grade crossings 
and to report to Congress on the results of the programs. Sec. 301, 
``Emergency Notification of Grade Crossing Problems,'' of Public Law 
103-440 (108 Stat. 4626). Initial efforts were spent in a cooperative 
effort with the Texas Department of Emergency Management evaluating the 
Texas system. Texas was designated one of the pilot States, and an 
extensive list of software, hardware, and operating improvements was 
developed. FRA prepared and implemented new software on an upgraded 
system in 1999. Based on comments and suggestions, further improvements 
were implemented in 2001 when the Texas call center operation was 
transferred to the Texas Department of Public Safety.
    This 2001 version was modified for use by a 911 center in Clinton 
County, Pennsylvania, with the participation of eight short line 
railroads. A 30-month demonstration program was initiated in November 
2001.
    In 2002, an agreement was reached with the Paducah & Louisville 
Railroad to conduct an additional pilot project (the third). At the 
time this was a

[[Page 11995]]

regional railroad with 24-hour operations and approximately 400 grade 
crossings. FRA modified the program software to accommodate the 
railroad's needs.
    Further, the 1994 Highway-Rail Crossing Safety Action Plan issued 
by DOT recommended an automated telephone answering system for handling 
telephone calls to report emergencies, malfunctions, and other safety-
related problems at highway-rail intersections. However, the automated 
system proved to be unworkable, whereas the staffed systems were 
successful.

C. FRA's 2006 Report to Congress

    In May 2006, as mandated by Congress in Sec. 301, ``Emergency 
Notification of Grade Crossing Problems,'' of Public Law 103-440, FRA 
published a report to Congress outlining the development of ENS 
programs up to that date (Report). A copy of the Report can be found at 
http://www.fra.dot.gov/downloads/safety/1_800_report.pdf. The Report 
covered, among other things, the Texas ENS program, the Pennsylvania 
ENS program, Congressional action, NTSB recommendations, and FRA 
actions. Based on the findings of the Report, FRA made certain 
recommendations, to Congress. These recommendations were as follows: 
(1) Class I railroads should continue to implement, augment, and review 
the emergency notification programs they have initiated; (2) smaller 
railroads, including commuter railroads, should work cooperatively 
through The American Short Line and Regional Railroad Association, or 
another suitable organization or organizations, to establish ENS 
programs serving member railroads; (3) signs installed or replaced at 
highway-rail grade crossings should be displayed prominently to 
crossing users (e.g., mounted on signal masts where practicable) and 
conform to the Federal Highway Administration's (FHWA) Manual on 
Uniform Traffic Control Devices (MUTCD) guidance; and (4) any program 
that does not currently include passive highway-rail grade crossings be 
expanded to include, at minimum, all such public crossings where it is 
practicable to do so.
    The Report concluded that the pilot ENS programs in both Texas and 
Pennsylvania afforded the general public a quick and easy means of 
alerting appropriate railroad officials of safety-related problems. 
Additionally, the Report concluded that the Texas ENS likely resulted 
in the prevention of numerous accidents and injuries, and 
Pennsylvania's ENS, albeit on a smaller scale than Texas's, 
demonstrated that it is possible to create emergency call systems 
through the development of agreements with multiple railroads. Finally, 
the Report emphasized that the Pennsylvania ENS also showed the value 
of including all highway-rail grade crossings, not just those with 
train-activated warning devices.

IV. Section-by-Section Analysis

Section 234.1 Scope

    FRA proposes to expand this part to include new subpart E, 
Emergency Notification Systems for Reporting Unsafe Conditions at 
Highway-Rail and Pathway Grade Crossings. For this reason, FRA proposes 
to amend the description of the scope of the part, Sec.  234.1, by 
inserting the following sentence: ``[t]his part also prescribes minimum 
requirements that railroads establish a system for receiving toll-free 
telephone calls from the public at large about unsafe conditions at 
highway-rail and pathway grade crossings and taking certain actions in 
response.'' Further, for readability of the section, FRA proposes to 
designate the text of proposed Sec.  234.1 as two paragraphs, with 
paragraph (b) consisting of the last sentence of current Sec.  234.1.

Section 234.3 Application and Responsibility for Compliance

    FRA also proposes to amend Sec.  234.3, Application. Currently, 
that section, says that, except for Sec.  234.11 (which requires 
certain States to file State-specific grade crossing safety action 
plans), part 234 applies to all railroads with the exception of three 
types. The first type of railroad not subject to part 234 is a railroad 
that ``exclusively operates freight trains only on track which is not 
part of the general railroad system of transportation.'' 49 CFR 
234.3(a). This existing exception is intended to cover ``plant 
railroads'' as defined in proposed Sec.  234.5, discussed below. The 
second category of railroads not subject to part 234 is ``[r]apid 
transit operations within an urban area that are not connected to the 
general railroad system of transportation.'' 49 CFR 234.3(b). The third 
category of railroads not subject to part 234 is each ``railroad that 
operates passenger trains only on track inside an installation is 
insular * * *.'' The term ``insular'' is explained in the rest of the 
exception. 49 CFR 234.3(c).
    Proposed Sec.  234.3(a) would clarify that these same three 
categories--(1) Plant railroads, (2) urban rapid transit operations not 
connected to the general railroad system of transportation, and (3) 
insular tourist, scenic, historic, and excursion railroads (tourist 
railroads) that are not part of the general railroad system of 
transportation--are exempt from the requirements of part 234. See 49 
CFR part 209, app. A for a discussion of the term ``general railroad 
system of transportation'' (general system). FRA's reasons for 
excluding these three categories of railroads are policy or statutory. 
FRA almost never exercises its statutory safety jurisdiction over plant 
railroads as a matter of policy. FRA lacks statutory jurisdiction over 
urban rapid transit operations not connected to the general system. See 
49 U.S.C. 20102, 20103. As a matter of policy, FRA generally does not 
exercise its statutory jurisdiction over tourist railroads that operate 
only off the general system; however, part 234 is an existing example 
of an FRA safety regulation that does apply to tourist railroads that 
operate only off the general system but only if the tourist railroads 
are noninsular, e.g., because they have a public highway-rail grade 
crossing that is in use.
    In addition, proposed paragraph (b) of Sec.  234.3 explains that 
even though a provision of part 234 is stated as requiring certain 
action by a railroad, a railroad may not avoid fulfilling the 
requirements of this part by using contractors or subcontractors. For 
example, if a railroad uses a contractor to put up ENS signs required 
by proposed Sec.  234.311, FRA will still enforce the provisions of 
Sec.  234.311 to ensure that the proper signs have been posted and 
maintained. FRA will hold the railroad liable for its contractor's or 
subcontractor's failing to fulfill the requirements of this proposed 
part.

Section 234.5 Definitions

    FRA proposes three amendments to the existing ``Definitions'' 
section for part 234. First, FRA proposes to amend part 234's existing 
definition of ``credible report of system malfunction.'' Currently, 
subpart C and proposed subpart E refer to ``credible reports of warning 
system malfunctions'' rather than ``credible report of system 
malfunction.'' To address this inconsistency, FRA proposes to replace 
``credible report of system malfunction'' with ``credible report of 
warning system malfunction'' in Sec.  234.5. Furthermore, as a minor 
clarification within the definition of ``credible report of system 
malfunction,'' FRA proposes to replace ``an identified highway-rail 
crossing'' with ``an identified highway-rail grade crossing.'' 
``[H]ighway-rail crossing'' would be replaced with ``highway-rail grade 
crossing'' because Subpart C was never intended to apply to grade-
separated highway-rail crossings because Subpart C deals only with

[[Page 11996]]

reports of warning system malfunctions and grade-separated highway-rail 
crossings are not equipped with warning systems.
    Second, FRA proposes to add a definition of ``FRA.'' The term would 
be an acronym meaning the Federal Railroad Administration of the U.S. 
Department of Transportation.
    Finally, FRA proposes to add a definition of ``plant railroad.'' 
The term refers to a type of operation that has traditionally been 
excluded from the application of FRA regulations because it is not part 
of the general railroad system of transportation. There is a more 
extensive explanation of the general railroad system of transportation 
in appendix A to 49 CFR part 209, and it is explicitly defined there as 
``the network of standard gage track over which goods may be 
transported throughout the nation and passengers may travel between 
cities and within metropolitan and suburban areas.''

Subpart E--Emergency Notification Systems for Reporting Unsafe 
Conditions at Highway-Rail and Pathway Grade Crossings

    FRA proposes to amend part 234 by adding new subpart E, Emergency 
Notification Systems for Reporting Unsafe Conditions at Highway-Rail 
and Pathway Grade Crossings (proposed subpart E), which would include 
Sec. Sec.  234.301-234.317.

Section 234.301 Definitions

    This proposed section contains definitions of terms used in 
proposed subpart E, listed alphabetically without designations. 
``Automated answering service'' means a type of answering service in 
which a telephone call is answered by any means other than a human 
being speaking live to the caller at the time the call is made. 
Multiple provisions in proposed subpart E prohibit a railroad from 
using an automated answering service to receive calls. See proposed 
Sec. Sec.  234.303(a), 234.305(h)(2), 234.307(a), and 234.307(b)(2). 
The rationale for this prohibition is FRA's belief that because in 
certain scenarios, such as a disabled vehicle blocking the crossing, 
time is of the essence, and speaking to a human being rather than a 
machine or recording reduces the time required to initiate the 
appropriate remedial action, thus improving the opportunity to avert a 
collision. FRA is considering and seeks comment regarding setting forth 
a maximum amount of time a caller must wait before a call is answered 
by the railroad.
    ``Class II'' and ``Class III'' have the meanings assigned by 
regulations of the Surface Transportation Board, which may be found at 
49 CFR part 1201, General Instructions 1-1, Classification of carriers. 
To ensure that the definitions of ``Class II'' and ``Class III'' as 
used in this proposed subpart incorporate any changes that the Surface 
Transportation Board may make after the publication of this proposed 
subpart, FRA's definition includes any revision to the regulations as 
applied by the Surface Transportation Board, which includes 
modifications in the class threshold based on revenue deflator 
adjustments.
    In certain scenarios the railroad that dispatches or otherwise 
provides the authority for the movement of a train through a grade 
crossing (such as movement on the mainline under yard limit authority) 
is not the same railroad that has maintenance responsibility for that 
crossing. To address this type of situation, FRA proposes to use the 
terms ``dispatching railroad'' and ``maintaining railroad.'' 
``Dispatching railroad'' is defined as a railroad that dispatches or 
otherwise provides the authority for the movement of one or more trains 
through a highway-rail or pathway grade crossing. The definition of 
``maintaining railroad'' is discussed below.
    To properly receive notification of unsafe conditions at grade 
crossings, a railroad or group of railroads would be required to 
implement a system that consists of multiple components. To refer to 
the entire set of these various components, the term ``Emergency 
Notification System'' or its abbreviation (``ENS'') is used. 
Specifically, ``Emergency Notification System'' means a system in place 
by which a railroad informs the public how to report an unsafe 
condition at a highway-rail or pathway grade crossing and enables the 
public to do so and receives, processes, and attends to reports of 
unsafe conditions at highway-rail or pathway grade crossings. The 
required components of an Emergency Notification System are as follows: 
(1) Signs, placed and maintained at the grade crossings by the railroad 
responsible for maintaining the crossing, that display the information 
necessary for the public to report an unsafe condition at the grade 
crossing to the railroad that dispatches trains through the crossing; 
(2) the method that the dispatching railroad uses to receive and 
process a telephone call reporting the unsafe condition; (3) the 
remedial actions that the dispatching railroad takes to address the 
report of the unsafe condition; (4) the remedial actions that the 
maintaining railroad takes if the dispatching railroad does not have 
maintenance responsibility; and (5) the recordkeeping conducted by the 
railroad or railroads in response to the report of the unsafe condition 
at the grade crossing. Although the word ``emergency'' is part of the 
term ``Emergency Notification System,'' FRA does not intend to imply 
that all reportable unsafe conditions are emergencies, i.e., conditions 
that create an imminent hazard of death or injury to an individual or 
damage to property. In other words, some reportable unsafe conditions 
are not emergencies. The term ``Emergency Notification System'' is used 
in part because of its use in the 1994 legislation and its use 
colloquially.
    It may be noted that this proposed section lacks a proposed 
definition of ``highway-rail grade crossing.'' Such a proposed 
definition is unnecessary because the current definition in Sec.  234.5 
applies to part 234 as a whole and would apply to proposed subpart E. 
Existing Sec.  234.5 defines ``highway-rail grade crossing'' as ``a 
location where a public highway, road, street, or private roadway, 
including associated sidewalks and pathways crosses one or more 
railroad tracks at grade.''
    ``Maintaining railroad'' means the owner of the track at the 
highway-rail or a pathway grade crossing. If the track owner has 
contracted out the responsibility to maintain the warning system or 
track structure at a highway-rail or a pathway grade crossing, the 
contractor is considered the ``maintaining railroad'' for the purposes 
of this subpart. As mentioned previously, the railroad that dispatches 
a train through a grade crossing and the railroad that maintains the 
crossing may not necessarily be the same entity. To address this 
scenario, FRA proposes a definition for ``maintaining railroad.''
    ``Pathway grade crossing'' means a pathway that has all of the 
following characteristics: (1) It is explicitly authorized by a public 
authority or a railroad; (2) it is dedicated for the use of 
nonvehicular traffic, including pedestrians, bicyclists, and others; 
(3) it is not associated with a public highway, road, or street, or a 
private roadway; and (4) it crosses one or more railroad tracks at 
grade. Sec. 205 of RSIA provides that the Secretary should require 
railroads to provide for telephonic notification of safety problems at 
``the grade crossing of railroad tracks on those rights-of-way and 
public or private roads.'' 49 U.S.C. 20152(a)(1)(A) and references to 
``such grade crossings'' in 49 U.S.C. 20152(a)(1)(B)-(D). In other 
words, Sec. 205 of RSIA does not mention pathway grade crossings. 
Section 2 of RSIA, however, defines ``crossing,'' as used in RSIA, as a 
location, other than a location where one more railroad tracks

[[Page 11997]]

cross one or more railroad tracks, where--

    (A) A public highway, road, or street, or a private roadway, 
including associated sidewalks and pathways, crosses one or more 
railroad tracks either at grade or grade-separated; or
    (B) A pathway explicitly authorized by a public authority or a 
railroad carrier that is dedicated for the use of nonvehicular 
traffic, including pedestrians, bicyclists, and others, that is not 
associated with a public highway, road, or street, or a private 
roadway, crosses one or more railroad tracks either at grade or 
grade-separated.

122 Stat. 4848, 4849-50. Since the term ``crossing,'' as defined in 
section 2 of RSIA, includes pathway grade crossings, proposed subpart E 
will also include pathway grade crossings. Furthermore, during the 11-
year period from 1999-2009, 22 deaths and 13 injuries resulted from 
accidents at pathway grade crossings. It is reasonable to expect that 
an ENS system that includes pathway grade crossings would increase the 
safety of pathway grade crossings by increasing the likelihood that the 
public will notify railroads of unsafe conditions there and enable the 
railroads to intervene in time to avert accidents at the crossings and 
any resulting fatalities and injuries. Therefore, FRA believes that the 
inclusion of pathway grade crossings in proposed subpart E is 
``necessary'' for ``railroad safety'' within the meaning of 49 U.S.C. 
20103.

    FRA recognizes that the definition of ``crossing'' from section 2 
of RSIA includes public, private, and pathway crossings that are grade 
separated; however, at this time FRA does not intend to expand part 234 
and proposed subpart E to include grade-separated crossings. FRA 
declines to include grade-separated crossings in the proposed rule 
either because the unsafe conditions that an ENS addresses do not occur 
at grade-separated crossings \1\ or because there is no clear, 
unambiguous place to put an ENS sign at a grade-separated highway-rail 
or pathway crossing; therefore, an ENS at grade-separated crossings 
would not be effective to increase the safety of those crossings.
---------------------------------------------------------------------------

    \1\ For example, warning system malfunctions do not occur at 
grade-separated crossings because grade-separated crossings do not 
have warning systems.
---------------------------------------------------------------------------

Section 234.303 Telephonic Notification of Unsafe Conditions at 
Highway-Rail or Pathway Grade Crossings

    Proposed Sec.  234.303(a) requires each railroad that dispatches a 
train through a highway-rail or pathway grade crossing, or provides 
authority for a train to traverse such a crossing, to set up a system 
to directly receive telephonic notification of certain unsafe 
conditions at the crossing. This proposed section would require these 
dispatching railroads to establish and maintain a toll-free telephone 
service by which the railroad can directly receive calls from the 
public reporting any of the unsafe conditions listed in proposed Sec.  
234.303(b) (with respect to highway-rail grade crossings) and Sec.  
234.303(c) (with respect to pathway grade crossings).
    FRA recognizes that in certain scenarios there may be multiple 
railroads dispatching trains on one or more tracks through one highway-
rail or pathway grade crossing. While FRA believes that an ENS should 
include these types of crossings, it is not clear whether the 
responsibility to receive reports of unsafe conditions at these types 
of crossing should fall on one railroad or whether each railroad that 
dispatches a train through the crossing should be responsible to 
receive reports. FRA seeks comments on how to handle these types of 
situations.
    The frequency with which a crossing is used does not determine 
whether it is included in the system established pursuant to proposed 
Sec.  234.301(a). FRA believes that it is important to provide an 
immediate means to communicate a notice of an unsafe condition even at 
grade crossings traversed infrequently. Imagine, for example, the 
driver of a logging truck stuck at a seldom-used private crossing in 
the Rocky Mountains with no knowledge of what actions to take or whom 
to contact.
    The FRA Administrator, as the Secretary's delegate, has the 
discretion to issue a waiver to a Class II or Class III railroad 
relieving it from the requirement that the telephone number used be 
toll-free. 49 U.S.C. 20152(b); 49 CFR 1.49. The Administrator may waive 
the toll-free telephone service requirement for a Class II or Class III 
railroad if the Administrator determines that the use of a toll-free 
telephone service would be cost prohibitive or unnecessary. FRA's 
procedures for seeking a waiver are at 49 CFR part 211 (e.g., 
Sec. Sec.  211.7, 211.9, and 211.41).
    A railroad that dispatches a train through a highway-rail or 
pathway grade crossing or provides authority for a train to traverse 
such a grade crossing must be able to directly receive calls through 
the toll-free telephone service. ``Directly'' does not necessarily mean 
that the railroad must be the first entity that receives the telephone 
call when the toll-free service is used. However, ``directly'' does 
mean that only a limited number of entities may be placed between the 
caller reporting the unsafe condition(s) at the grade crossing and the 
dispatching railroad. FRA proposes that only one entity may exist 
between the caller and the railroad. This restriction is addressed 
further in proposed Sec.  234.307. Regardless if an additional entity 
is used, the railroad ultimately remains responsible for setting up and 
using a system by which it can receive notification of unsafe 
conditions at a grade crossing and take the appropriate action in 
response to a notification. This responsibility is placed on the 
railroad because it is in the best position to immediately contact and 
warn the trains authorized to operate through the grade crossing about 
which the report pertains.
    The four types of unsafe conditions at highway-rail grade crossings 
that are to be reportable through the ENS system are set forth in 
proposed Sec.  234.303(b). (Again, the four types of unsafe conditions 
at pathway grade crossings that are to be reportable through the ENS 
system are listed in proposed Sec.  234.303(c).) The first type of 
reportable unsafe condition at a highway-rail grade crossing is a 
warning system malfunction at the crossing. ``Warning system 
malfunction,'' as defined in proposed Sec.  234.5, means an activation 
failure, a partial activation, or a false activation of a highway-rail 
grade crossing warning system. The terms ``activation failure,'' 
``partial activation,'' and ``false activation'' are all defined in 
existing Sec.  234.5 as well.
    The second type of reportable unsafe condition at a highway-rail 
grade crossing is a disabled vehicle or other obstruction blocking a 
railroad track at the crossing. As mentioned in Section II of this 
preamble, a significant number of collisions between a train and a 
vehicle have occurred at highway-rail grade crossings due to a vehicle 
blocking the railroad tracks at the crossing, with many of these 
collisions resulting in injuries and fatalities. While FRA acknowledges 
that not all of these incidents may have been prevented by the presence 
of an ENS, such a system increases the likelihood that the dispatching 
railroad will learn of the disabled vehicle in time to alert any trains 
authorized to operate through that crossing, thus potentially averting 
a collision and any resulting casualties. Further, other obstructions, 
aside from a disabled vehicle, may block the tracks at a crossing and 
create an unsafe condition that needs to be reported to the railroad. 
For instance, as a result of a severe storm, a large tree may fall onto 
the tracks at a highway-rail grade crossing, and if a railroad is not 
alerted

[[Page 11998]]

about this unsafe condition, a train that is authorized to operate 
through that crossing could collide with the downed tree, thus 
potentially causing a derailment. Under Sec. 205 of RSIA, the second 
category of unsafe conditions is a disabled vehicle blocking the tracks 
at a grade crossing. To the extent that FRA's proposed rule requires 
more than Sec. 205 of RSIA would have it require, the agency relies on 
its general safety rulemaking authority.
    The third type of a reportable unsafe condition at a highway-rail 
crossing is an obstruction to the view of a pedestrian or a vehicle 
operator for a reasonable distance in either direction of a train's 
approach to the crossing. FRA's Track Safety Standards provide that 
``vegetation on railroad property which is on or immediately adjacent 
to the roadbed shall be controlled so that it does not [o]bstruct 
visibility of railroad signs and signals [a]t highway-rail grade 
crossings.'' 49 CFR 213.7(b)(1) (Sec.  213.7(b)(1)). Proposed Sec.  
234.303(b)(3) allows a member of the public to inform the railroad of 
conditions at highway-rail grade crossings that may not fall under 
Sec.  213.7(b)(1), but that, in the individual's opinion, present an 
unsafe condition involving a sight obstruction at the crossing. FRA 
seeks comment regarding what is a ``reasonable distance'' to determine 
whether an obstruction to a pedestrian or vehicle operator's view of a 
train's approach to a highway-rail grade crossing presents an unsafe 
condition at the grade crossing.
    The final type of reportable unsafe condition at a highway-rail 
grade crossing is any condition at the crossing that may be considered 
unsafe and is not covered by Sec.  234.303(b)(1)-(3). A downed or 
missing crossbuck sign illustrates the type of condition at a highway-
rail grade crossing that may be deemed unsafe, and therefore should be 
reported to the railroad, but does not fall into one of the three other 
categories. However, a downed or missing crossbuck sign is merely an 
example and is not intended to be an exhaustive list of the various 
conditions that may be considered unsafe under this catch-all 
provision.
    Proposed Sec.  234.303(c) sets forth the four types of reportable 
unsafe conditions at pathway grade crossings as opposed to highway-rail 
grade crossings. These four types of reportable unsafe conditions at 
pathway grade crossings are, essentially, the same as those for 
highway-rail grade crossings, but, as detailed below, the four types of 
reportable unsafe conditions at pathway grade crossings are not 
described in the exact same words, and unlike the first type of report 
for a highway-rail grade crossing, the first type of report for a 
pathway grade crossing does not trigger the duty to address the report 
in the manner prescribed by existing 49 CFR part 234, subpart C 
(subpart C).
    The first type of reportable condition for a pathway grade crossing 
is a failure of the active warning system at the pathway grade crossing 
to perform as intended. Proposed Sec.  234.303(c)(1) does not use term 
``warning system malfunction'' to refer to a failure of an active 
warning system at a pathway grade crossing because, as defined in Sec.  
234.5, a ``warning system malfunction'' is an activation failure, 
partial activation, or false activation of the active warning system at 
a highway-rail grade crossing, not a pathway grade crossing. Further, 
``activation failure,'' ``partial activation,'' and ``false 
activation'' are all defined in Sec.  234.5 and only apply to highway-
rail grade crossings. FRA has not proposed specific standards regarding 
the maintenance and repair of active warning systems at pathway grade 
crossings and does not intend to do so at this time. However, FRA does 
intend to require that certain railroads provide the public with a 
means to report when the active warning system at a pathway grade 
crossing is not performing as intended and is creating an unsafe 
condition at the crossing.
    While the term ``failure of the active warning system at the 
pathway grade crossing to perform as intended'' as used in proposed 
Sec.  234.303(c)(1) is not specifically defined, FRA believes that the 
term sufficiently addresses the scenarios in which an active warning 
system at a pathway grade crossing malfunctions and poses a significant 
safety risk to a pathway grade crossing user. FRA seeks comment 
regarding the types of failures of an active warning system at a 
pathway grade crossing that may differ from failures of active warning 
systems at highway-rail grade crossings. Additionally, FRA seeks 
comment regarding how the maintenance and repair of an active warning 
system at a pathway grade crossing differ from the required maintenance 
and repair of an active warning system at a highway-rail grade 
crossing.
    The second type of reportable unsafe condition at a pathway grade 
crossing is an obstruction blocking a railroad track at the crossing. 
To avoid confusion, the term ``disabled vehicle'' is purposely omitted 
from proposed Sec.  234.303(c)(2), though it is used in proposed Sec.  
234.303(b)(2), because, as defined in proposed Sec.  234.301, a 
``pathway grade crossing'' is, among other things, dedicated for the 
use of nonvehicular traffic; thus, by the definition, a vehicle should 
not be using a pathway grade crossing. However, to ensure that all 
possible scenarios in which an obstruction could be blocking the tracks 
at a pathway grade crossing, including certain disabled vehicles that 
may be using the pathway (such as all-terrain vehicles, golf carts, 
maintenance vehicles, or snowmobiles), Sec.  234.303(c)(2) uses the 
broad term ``obstruction.''
    The third type of reportable unsafe condition at a pathway grade 
crossing is an obstruction to the view of a pathway user for a 
reasonable distance in either direction of a train's approach to the 
crossing. See discussion of proposed Sec.  234.303(b)(3).
    The final type of reportable unsafe condition at a pathway grade 
crossing is any condition at the crossing that may be considered unsafe 
and is not covered by Sec.  234.303(c)(1)-(3). See discussion of 
proposed Sec.  234.303(b)(4).
    As mentioned previously, the FRA Administrator has the discretion 
to waive the requirement that the ENS telephone number be toll-free for 
Class II and Class III railroads. The Administrator may waive the toll-
free requirement for these railroads if he or she determines that the 
use of a toll-free service would be cost prohibitive or unnecessary. 
FRA believes that there may be certain scenarios in which a caller 
would be discouraged from reporting an unsafe condition at a grade 
crossing because the use of a non-toll-free number would impose an 
additional cost on the caller as opposed to if a toll-free number was 
used. Further, the requirement for the number to be toll-free may be 
overly burdensome to a short line or other small railroad. To avoid 
these types of situations, FRA proposes in Sec.  234.303(d) that if a 
Class II or Class III railroad dispatches trains within an area in 
which the use of a non-toll-free number would not incur any additional 
fees for the caller compared to if a toll-free number was used, then 
that railroad may use that non-toll-free number to receive calls 
pursuant to Sec.  234.303(a) regarding each grade crossing in that 
area.
    Paragraph (e) ensures that if a report of an unsafe condition at a 
highway-rail or pathway grade crossing was not made through the 
telephone service described in proposed Sec.  234.303(a), subpart E 
does not apply. Since subpart E only sets forth the requirements of an 
ENS and the actions taken in response to a report of unsafe condition 
received through an ENS, a report that is not received

[[Page 11999]]

through an ENS does not invoke the requirements in subpart E.
    FRA is considering whether to extend proposed subpart E to cover 
all public highway-rail grade crossings located within a port, or dock 
facility, railroad yard or private industrial facility and such a 
facility/yard is subject to part 234 as set forth in amended Sec.  
234.3. If these types of crossings are covered by proposed subpart E, 
FRA is considering whether to treat all of the crossings located in 
such facilities/yards as a single public highway-rail grade crossing 
for the purposes of proposed subpart E. These areas often have a 
significant number of crossings located in a small area, and FRA 
believes that it may be impracticable to consider each crossing within 
these areas as a separate grade crossing. Treating all the public 
highway-rail grade crossings within these facilities/yards as one 
public highway-rail grade crossing is consistent with the U.S. DOT 
National Highway-Rail Crossing Inventory, Policy, Procedures and 
Instructions for States and Railroads, published August 2007, which can 
be found at-- http://www.fra.dot.gov/downloads/safety/RXIPolicyInstructions0807.pdf. FRA seeks comment whether proposed 
subpart E should be extended to incorporate public highway-rail grade 
crossings located within a port, or dock facility, railroad yard or 
private industrial facility. FRA also seeks comment whether it is 
practicable to treat all of the public highway-rail grade crossings 
within such facilities/yards as one public highway-rail grade crossing 
for the purposes of proposed subpart E.

Section 234.305 Remedial Actions

    Proposed Sec.  234.305 addresses the actions that a railroad must 
take in response to an ENS-generated report of an unsafe condition at a 
highway-rail or pathway grade crossing. Paragraph (a) of the proposed 
section is the general rule on required response to ENS-generated 
credible reports of warning system malfunctions. If a railroad receives 
an ENS-generated report of a warning system malfunction that is a 
credible report of warning system malfunction and the railroad has 
maintenance responsibility for the warning system at the highway-rail 
grade crossing to which the report pertains, the railroad is required 
to take the appropriate action as required by subpart C. As defined in 
proposed Sec.  234.5, a ``credible report of warning system 
malfunction'' is ``specific information regarding a malfunction at an 
identified highway-rail grade crossing, supplied by a railroad 
employee, law enforcement officer, highway traffic official, or other 
employee of a public agency acting in an official capacity.'' If a 
report of a warning system malfunction is not provided by one of the 
four specific types of people listed, then the report is not a credible 
report of system malfunction within the meaning of both subpart C and 
proposed subpart E, and subpart C does not require any remedial action 
in response to those reports. It should be noted that a credible report 
of warning system malfunction only applies to highway-rail grade 
crossings and does not include pathway grade crossings. At this time 
FRA does not plan to expand the definition of ``credible report of 
warning system malfunction'' to include pathway grade crossings. Thus, 
regardless of who reports a warning system malfunction at a pathway 
grade crossing, the report is not considered a ``credible report of 
warning system malfunction'' within the meaning of both subpart C and 
proposed subpart E. However, it is important to note that the term 
``credible'' does not go to the accuracy or truthfulness of the report; 
rather, it distinguishes the type of person providing the report to the 
railroad. Just because a report is not considered a ``credible report 
of warning system malfunction,'' as defined by proposed Sec.  234.5, 
does not mean that it is not accurate or truthful.
    If the report is a credible report of warning system malfunction, 
but the railroad that initially receives the report is not the railroad 
that has maintenance responsibility for the warning system at the 
highway-rail grade crossing to which the report pertains, that railroad 
is already responsible for contacting the trains that are authorized to 
operate through the highway-rail grade crossing and warn the trains of 
the reported malfunction under subpart C. After warning the trains, the 
railroad must then contact the railroad that has maintenance 
responsibility for the warning system at the highway-rail grade 
crossing, which will then be responsible for taking the appropriate 
remedial action under subpart C. FRA recognizes that in many instances 
the railroad that initially receives the report may not be the railroad 
that has maintenance responsibility over the warning system at that 
crossing. Therefore, to ensure that the responsibility to take the 
appropriate remedial action as required by subpart C falls on the 
appropriate railroad, proposed Sec.  234.305(a)(2) requires the 
railroad with maintenance responsibility to take the appropriate 
remedial action under subpart C, except for immediately contacting the 
trains operating through the crossing; this responsibility remains with 
the dispatching railroad.
    Paragraph (b) of proposed Sec.  234.305 is the general rule on 
response to ENS-generated reports of warning system malfunctions at 
highway-rail grade crossings that are not considered credible reports 
of warning system malfunctions as defined by proposed Sec.  234.5 and 
requires that railroads take certain specified remedial action in 
response to those reports. In other words, proposed Sec.  234.305(b) 
addresses ENS-generated reports of warning system malfunctions that do 
not fall within the amended definition of ``credible report of warning 
system malfunction'' in Sec.  234.5 because the report is made by 
someone who is not a railroad employee, law enforcement officer, 
highway traffic official, or other employee of a public agency acting 
in an official capacity. In particular, if a railroad receives a report 
of a warning system malfunction that is not a credible report of 
warning system malfunction and that railroad has maintenance 
responsibility for the warning system at the crossing, the railroad 
must immediately contact all trains that are authorized to operate 
through the grade crossing about which the report pertains and warn 
those trains of the reported malfunction. The railroad must then 
promptly contact the law enforcement agency that has jurisdiction over 
the crossing and provide the necessary information for the law 
enforcement agency to direct traffic or carry out other activities to 
maintain safety at the grade crossing. Further, the railroad must 
promptly investigate the report and determine the nature of the 
malfunction and, if necessary, take appropriate action as required by a 
provision of existing 49 CFR part 234, subpart D, i.e., Sec.  
234.207(a), which requires that ``[w]hen any essential component of a 
highway-rail grade crossing warning system fails to perform its 
intended function, the cause shall be determined and the faulty 
component adjusted, repaired, or replaced without undue delay.''
    If a railroad receives a report of a warning system malfunction 
that is not a credible report of warning system malfunction and that 
railroad does not have maintenance responsibility for the warning 
system at the highway rail grade crossing, the railroad must 
immediately contact all trains that are authorized to operate through 
the grade crossing to which the report pertains and warn those trains 
of the reported malfunction. The railroad must then promptly contact 
the law enforcement agency that has jurisdiction over the

[[Page 12000]]

grade crossing and provide the necessary information for the law 
enforcement agency to direct traffic or carry out other activities to 
maintain safety at the grade crossing. The railroad must then promptly 
contact the railroad that has maintenance responsibility for the 
warning system and inform that railroad of the reported malfunction. 
The railroad having maintenance responsibility must promptly 
investigate the report, determine the nature of the malfunction and 
take the appropriate action as required by Sec.  234.207(a) if 
necessary.
    Proposed Sec.  234.305(c) is the general rule on response to a 
warning system failure at a pathway grade crossing. If the dispatching 
railroad receives a report pursuant to Sec.  234.303(c)(1) and that 
railroad also has maintenance responsibility for the active warning 
system at the pathway grade crossing, the railroad shall immediately 
contact all trains that are authorized to operate through the pathway 
grade crossings to which the report pertains and warn the trains of the 
reported failure. The railroad shall then promptly contact the law 
enforcement agency having jurisdiction over the pathway grade crossing 
and provide the necessary information to the law enforcement agency to 
direct traffic or carry out other activities to maintain safety at the 
pathway grade crossing. Finally, the railroad shall the promptly 
investigate the report and determine the nature of the reported failure 
and repair the warning system if necessary.
    If the dispatching railroad receives a report of a warning system 
failure at a pathway grade crossing and that dispatching railroad does 
not have maintenance responsibility for the warning system at the 
pathway grade crossing, the dispatching railroad must immediately 
contact all trains that are authorized to operate through the pathway 
grade crossing to which the report pertains and warn those trains of 
the reported failure. The dispatching railroad must then promptly 
contact the law enforcement agency that has jurisdiction over the 
pathway grade crossing and provide the necessary information for the 
law enforcement agency to direct traffic or carry out other activities 
to maintain safety at the pathway grade crossing. The dispatching 
railroad must then promptly contact the railroad that has maintenance 
responsibility for the warning system at the pathway grade crossing and 
inform that railroad of the reported failure. The railroad having 
maintenance responsibility shall then promptly investigate the report 
and determine the nature of the reported failure and repair the warning 
system if necessary.
    Proposed Sec.  234.305(d) is the general rule on a dispatching 
railroad's response to reports of a disabled vehicle or other 
obstruction blocking a railroad track at a highway-rail or pathway 
grade crossing through which it dispatches trains. When a railroad 
receives a report of a disabled vehicle or obstruction blocking a 
railroad track at a grade crossing, the railroad must immediately 
contact all trains that are authorized to operate through the grade 
crossing to which the report pertains and warn the trains of the 
reported disabled vehicle or obstruction. Once all of the necessary 
trains are contacted, the railroad must then contact the law 
enforcement agency having jurisdiction over the grade crossing to 
provide that agency with the information necessary to assist in the 
removal of the disabled vehicle or other obstruction or carry out other 
activities as appropriate. FRA is considering and seeks comments on 
whether to require the railroad that receives the report (dispatching 
railroad) to contact the maintaining railroad if the obstruction is 
anything other than a disabled vehicle. The maintaining railroad would 
then be responsible for contacting the law enforcement agency and any 
other entities to assist in directing traffic (if necessary) and 
removing the obstruction.
    Proposed Sec.  234.305(e) is the special rule on contacting a train 
that is not required to have communication equipment. Section 220.9 of 
FRA's regulations on railroad communications sets forth communication 
equipment standards for trains. 49 CFR 220.9 (Sec.  220.9). These 
standards vary according to specific criteria set forth in Sec.  220.9. 
According to Sec.  220.9(b), no communication equipment is required on 
a train if that train does not transport passengers or hazardous 
material and does not engage in joint operations or operate at greater 
than 25 miles per hour. See 63 FR 47188; Sec.  220.9(b)(1)-(4). 
However, as proposed in subpart E, upon receipt of a report of a 
warning system malfunction, a warning system failure at a pathway grade 
crossing, or a disabled vehicle or other obstruction blocking a track, 
a railroad will be required to immediately contact a train authorized 
to operate through the highway-rail or pathway grade crossing to which 
the report pertains. If that train is not required by Sec.  220.9 to 
have any communications equipment, the railroad must contact that train 
by the quickest means available. Currently, railroad employees are 
required by 49 CFR 220.13(a) (Sec.  220.13(a)) to immediately report 
certain emergencies by the quickest means available. To maintain 
consistency among FRA regulations, proposed Sec.  234.305(e) requires 
that the quickest means used to contact a train upon receipt of a 
report of a warning system malfunction or disabled vehicle or other 
obstruction blocking a track at the crossing is consistent with the 
quickest means that an employee would use to report an emergency 
pursuant to Sec.  220.13(a).
    Proposed Sec.  234.305(f) is the general rule on response to 
reports of an obstruction to the view of a pedestrian or a vehicle 
operator for a reasonable distance in either direction of a train's 
approach to the highway-rail or pathway grade crossing (visual 
obstruction). FRA proposes that when the dispatching railroad receives 
a report of a visual obstruction and the railroad also has maintenance 
responsibility for the highway-rail or pathway grade crossing, the 
railroad shall timely investigate the report and, if the report is 
confirmed, shall remove the visual obstruction if it is feasible and 
lawful to do so. If the dispatching railroad does not have maintenance 
responsibility for the highway-rail or pathway grade crossing, the 
dispatching railroad shall promptly contact the railroad having 
maintenance responsibility for the highway-rail or pathway grade 
crossing, which shall timely investigate the report; and, if the report 
is confirmed, shall remove the visual obstruction, if it is lawful and 
feasible to do so. FRA recognizes that in certain instances a visual 
obstruction may not be removed, such as a natural visual obstruction 
due to the steepness of the road or path approaching the crossing or a 
visual obstruction due to the curvature of the track, or it may not be 
lawful to do so. Therefore, proposed Sec.  234.305(f)(2) imposes a duty 
on the maintaining railroad to remove the visual obstruction only if it 
is lawful and feasible to do so. FRA seeks comment on what types of 
visual obstructions are not feasible to remove.
    Proposed Sec.  234.305(g) is the general rule on response to 
reports of other unsafe conditions at highway-rail or pathway grade 
crossings. Proposed Sec.  234.305(g)(1) states that if the railroad 
receives a report related to a safety device at a highway-rail or 
pathway grade crossing, such as a downed crossbuck, that is not covered 
by proposed Sec.  234.305(a), (b), or (c), and the railroad has 
maintenance responsibility for the device, the railroad must timely 
investigate the report, and if the railroad finds that the unsafe 
condition exists, the railroad must timely correct it. However, if the

[[Page 12001]]

railroad that receives the report does not have maintenance 
responsibility over the device, upon receipt of the report, the 
railroad must timely inform the railroad with maintenance 
responsibility for correcting the unsafe condition. The railroad with 
maintenance responsibility must then timely investigate the report and 
if it finds that the unsafe condition exists, it must timely correct it 
if it is lawful and feasible to do so. FRA seeks comment on what types 
of other unsafe conditions are not feasible to correct.
    Proposed Sec.  234.305(g)(2) states that if the dispatching 
railroad receives a report relating to any other unsafe condition at 
the highway-rail or pathway grade crossing that is not covered by 
proposed Sec.  234.305(g)(1) and the dispatching railroad is also the 
maintaining for the grade crossing, the dispatching railroad shall 
timely investigate the report and if it finds that the unsafe condition 
exists, the dispatching railroad shall timely correct it if it is 
lawful and feasible to do so. If the dispatching railroad is not the 
maintaining railroad, the dispatching railroad shall timely inform the 
maintaining railroad of the report and the maintaining railroad shall 
timely investigate the report. If, after investigating the report, the 
maintaining railroad finds that the unsafe condition exists, the 
maintaining railroad shall timely correct it if it is lawful and 
feasible to do.
    Paragraph (h) is the general rule on contacting the maintaining 
railroad. If the dispatching railroad is not the same as the 
maintaining railroad, the maintaining railroad shall provide the 
dispatching railroad with sufficient contact information by which the 
dispatching railroad may immediately contact the maintaining railroad 
upon receipt of a report if necessary. Furthermore, the maintaining 
railroad shall not use an automated answering service for the purpose 
of receiving a call from the dispatching railroad.

Section 234.307 Third-Party Telephone Service

    Proposed Sec.  234.307 would address the third-party telephone 
service that a dispatching railroad may use to receive reports 
concerning an unsafe condition at a highway-rail or pathway grade 
crossing pursuant to proposed Sec.  234.303.
    For a railroad to ``directly'' receive calls reporting unsafe 
conditions at a crossing as required by proposed Sec.  234.303, FRA 
proposes that one entity is the maximum number of entities that may 
exist between (1) a caller reporting an unsafe condition at a grade 
crossing and (2) the railroad. FRA believes that allowing more than one 
entity in between could potentially delay the railroad's receipt of the 
report and therefore delay its response to the unsafe condition to the 
extent that the ENS would not be effective. Proposed Sec.  234.307 sets 
forth the requirements for the third-party telephone service.
    FRA recognizes that many regional and short line railroads may not 
have the capability and resources to set up and operate a 24-hour 
system to respond to reports of unsafe conditions at highway-rail and 
pathway grade crossings. To ensure that the public can call in such 
reports and that more dispatching railroads can receive the reports, 
the proposed rule allows railroads to use a third-party telephone 
service.
    Paragraph (a) permits a railroad to use a third-party telephone 
service to receive reports pursuant to proposed Sec.  234.303. FRA 
believes that it is in the railroad's interest to use a third-party 
telephone service that is in the business of receiving and processing 
calls from the public because that is its specialty. Even if the 
railroad uses a third-party telephone service, the railroad ultimately 
remains responsible for receiving the report received by the third 
party, and the railroad is responsible for taking the appropriate 
remedial action as required by proposed Sec.  234.305 and complying 
with the proper recordkeeping requirements proposed in Sec.  234.313. 
The third-party telephone service is merely an extension of the 
railroad. The third-party service must be reached directly by the 
telephone number placed on the sign pursuant to proposed Sec.  234.309. 
Furthermore, the third-party service is prohibited from using an 
automated answering service, as defined in proposed Sec.  234.301, to 
receive calls. The railroad remains responsible for ensuring that an 
automated answering service is not used.
    Proposed paragraph (b) obliges a railroad that uses the third-party 
service to provide the service with sufficient contact information so 
that when the third-party service receives a report of an unsafe 
condition at a grade crossing, it can immediately contact the railroad. 
The railroad is prohibited from using an automated answering service to 
receive calls from the third-party service. There may be an unsafe 
condition for which immediate action by the railroad is necessary, such 
as a disabled vehicle blocking a track at the crossing; therefore, the 
contact information that the railroad provides the third-party service 
must be sufficient to the extent that when the third-party service 
contacts the railroad, a railroad employee answers the call and takes 
the appropriate action necessary under proposed Sec.  234.305. The 
responsibility of the third-party service is solely to receive reports 
and relay those reports to the railroad; any remedial action that is 
necessary to correct the unsafe condition is the responsibility of the 
railroad.
    Proposed paragraph (b) also requires a railroad to promptly inform 
FRA of its intent to use a third-party service to receive reports 
pursuant to proposed Sec.  234.303. The railroad must also provide FRA 
with the contact information of the third-party service that the 
railroad intends to use. Further, the railroad must provide FRA with a 
list of the grade crossings about which the third-party service will be 
receiving reports pursuant to proposed Sec.  234.303. This information 
will allow FRA to evaluate whether the use of a third-party service 
substantially increases the railroad's response time to the extent 
that, because of the use of the service, the railroad is no longer 
considered to be receiving calls ``directly.'' Finally, proposed 
paragraph (b) reaffirms the requirement that once a railroad receives a 
report of an unsafe condition at a grade crossing pursuant to proposed 
Sec.  234.303, the railroad must, at a minimum, take the remedial 
action required by proposed Sec.  234.305.
    Proposed paragraph (c) sets forth the duties of the third-party 
service. The third-party service is required to contact the contracting 
railroad immediately when the third-party service receives a report 
pursuant to proposed Sec.  234.303. The third-party service must then 
provide the contracting railroad with a minimum amount of information. 
The first type of information that the third-party service must provide 
is the nature of the reported unsafe condition. The nature of the 
reported unsafe condition must fall into one of the categories listed 
in proposed Sec.  234.303(b)(1)-(4) or (c)(1)-(4) so that the 
contracting railroad can take the appropriate remedial action as 
required by proposed Sec.  234.305. Second, the third-party service 
must provide information on the location of the unsafe condition, which 
includes providing the U.S. DOT National Crossing Inventory File Number 
for the crossing. Third, the third-party service must inform the 
contracting railroad whether the person reporting the unsafe condition 
is a railroad employee, law enforcement officer, highway traffic 
official, or other employee of a public agency acting in an official 
capacity. The third-party service is required to provide this 
information so that the contracting railroad can determine

[[Page 12002]]

whether the report is a credible report of warning system malfunction 
and, if it is, the railroad can take the appropriate remedial action 
required by proposed Sec.  234.305 and existing subpart C. Finally, the 
third-party service must provide the contracting railroad with any 
additional information provided by the caller that may be useful to 
restore the crossing to a safe condition.
    Paragraph (d) ensures that the third-party service, in addition to 
the contracting railroad, is responsible for complying with proposed 
subpart E and that both the railroad and the third party service can be 
held liable for a violation of proposed subpart E.
    FRA recognizes that future advances in technology may provide 
opportunities for call-in systems that are not specifically described 
in this rule. FRA is willing to review any new technology and consider 
its applicability to the regulation, or consider amending the 
regulation in the future if warranted. FRA welcomes comments on any 
such technologies that meet the requirements of the proposed 
regulation.

Section 234.309 Signs in General

    Proposed Sec.  234.309 would specify the color, minimum required 
dimensions, contents, and other aspects of the signs that Sec.  234.311 
requires to be placed and maintained at highway-rail and pathway grade 
crossings as part of an ENS. A minimum amount of information must be 
placed on the sign so that the unsafe condition may be properly 
reported and remedied. This minimum information is the toll-free number 
established to receive reports pursuant to Sec.  234.303(a) (or non-
toll-free number as provided for in Sec.  234.303(d)), an explanation 
of the purpose of the sign, and the U.S. DOT National Crossing 
Inventory File Number assigned to the crossing. To maintain a certain 
amount of consistency among the signs so that a grade crossing user may 
be able to easily identify and understand it, FRA proposes that the 
sign dimensions must be at least 12 inches by 9 inches, the lettering 
must be, at a minimum, 1 inch in height, and the sign must have a white 
legend and border on a blue background.
    FRA is considering whether the final rule should require that the 
sign be designed in accordance with the applicable provisions of the 
FHWA's MUTCD and Standard Highway Signs and Markings (SHSM) book. 
Currently, Sec.  8B.18 of the 2009 edition of the MUTCD provides 
standards and guidance regarding emergency notification signs. Figure 1 
is the example of an emergency notification sign provided in the MUTCD. 
Further, the new edition of the SHSM book, which had not been published 
at the time of the writing of this NPRM, provides two alternate designs 
for emergency notification signs, one of which is identical to the 
emergency notification sign provided in the MUTCD. The SHSM can be 
found at http://mutcd.fhwa.dot.gov/shsm_interim/index.htm. Figure 2 is 
an alternate design found in the new edition of the SHSM book. FRA is 
seeking comment regarding which standards and guidance provided in the 
MUTCD and SHSM book should be adopted in the final rule as the 
requirements for the signs placed at crossings pursuant to proposed 
Sec. Sec.  234.309 and 234.311.
[GRAPHIC] [TIFF OMITTED] TP04MR11.000

Section 234.311 Sign Placement and Maintenance

    Proposed Sec.  234.311 would require signs of the type specified by 
proposed Sec.  234.309 to be placed and maintained at highway-rail and 
pathway grade crossings. The maintaining railroad would be responsible 
for the proper placement and maintenance of the sign. The dispatching 
railroad would be responsible for providing the telephone number posted 
on the sign to the maintaining railroad if the two are not the same 
railroad.
    A sign must be placed and maintained for each direction of traffic 
at that grade crossing. This will ensure that grade crossing users will 
be able to see the sign from whichever direction they

[[Page 12003]]

approach the crossing. A pathway grade crossing is considered to have a 
minimum of two directions of traffic unless specifically designed for 
traffic in one direction only.
    Each sign placed at a highway-rail or pathway grade crossing must 
be placed and maintained so that the sign is conspicuous to the users 
of the roadway or pathway, optimizes nighttime visibility, minimizes 
the effect of mud splatter and debris, and does not obscure any other 
sign at the crossing. FRA does not propose a specific location at a 
crossing where a sign must be placed because such a specific location 
may not exist at every crossing. However, FRA proposes general 
requirements regarding the placement of the sign so that the sign may 
be easily seen and does not interfere with any other traffic control 
devices at the crossing. FRA is seeking comment on sign placement so 
the appropriate placement for optimal visual effectiveness of the sign 
may be determined. FRA is also seeking comment on how many and where to 
place signs at a highway-rail or pathway grade crossing in which there 
are multiple railroads dispatching trains on one or more tracks through 
that crossing.
    Proposed paragraph (c) does not prohibit the placement of an ENS 
sign on a signal bungalow; however, a sign on the signal bungalow and 
nowhere else at the crossing does not comply with proposed Sec.  
234.311. It is difficult to envision a scenario in which placing the 
sign on the signal bungalow would satisfy all of the requirements in 
proposed Sec.  234.311(b), particularly, Sec.  234.311(b)(1), which 
requires a sign to be placed at a grade crossing so that it is 
conspicuous to the users of the roadway or pathway. FRA seeks comment 
on other locations at grade crossings where the placement of the sign 
would not satisfy proposed Sec.  234.311(b).
    As mentioned previously, FRA is considering whether to expand 
proposed subpart E to cover all public highway-rail grade crossings 
located within a port or dock facility, railroad yard, or private 
industrial facility and to make such a facility or yard subject to part 
234. In turn, if these types of crossings would be covered by proposed 
subpart E, FRA is considering whether to treat all of the crossings 
located in such a facility or yard as a single public highway-rail 
grade crossing for the purposes of proposed subpart E. If these 
crossings are treated as a single public highway-rail grade crossing, 
FRA is considering whether to require a sign that conforms to proposed 
Sec.  234.309 to be placed and maintained as provided under proposed 
Sec.  234.311(a) and (b) at each point at which a public highway enters 
the facility or yard. FRA seeks comment whether this would be the 
optimal location for the sign for these types of facilities or yards if 
they are covered.

Section 234.313 Recordkeeping

    Proposed Sec.  234.313 sets forth the recordkeeping requirements 
for this proposed subpart that apply to each railroad subject to this 
proposed subpart. Proposed paragraph (a) of this section requires each 
railroad to keep records pertaining to compliance with this subpart. 
Records may be kept on paper forms generated by the railroad or kept 
electronically in a manner that conforms with proposed Sec.  234.315. 
Each railroad must keep the following information for each report 
received under the proposed subpart: (1) The nature of the reported 
unsafe condition; (2) the location of the grade crossing (by highway 
name and U.S. DOT National Crossing Inventory File Number); (3) the 
time and date of receipt of the report by the railroad; (4) whether the 
person who provided the report was a railroad employee, law enforcement 
officer, highway traffic official, or other employee of a public agency 
acting in an official capacity; (5) the actions taken by the railroad 
prior to rectifying the reported unsafe condition; (6) the actions 
taken by the railroad to rectify, if possible, the reported grade 
crossing problem; (7) the date and time at which the reported unsafe 
condition was rectified; and (8) if the railroad is required to contact 
the railroad with maintenance responsibility, the time and date the 
railroad contacted the railroad having maintenance responsibility. FRA 
is considering whether to require the railroad to also record the 
caller's name and contact information so the railroad can follow-up 
with the caller if necessary. FRA seeks comment on what other 
information the railroad should be required to record.
    Subpart C at 49 CFR 234.109 (Sec.  234.109) already has specific 
recordkeeping requirements for a railroad that receives a credible 
report of warning system malfunction; therefore, there is no separate 
recordkeeping requirement in proposed subpart E for credible reports of 
warning system malfunction. Proposed Sec.  234.313(c) requires that 
each railroad retain for at least one year (from the latest date of 
railroad activity in response to a report received under this part) all 
records that it makes that are required by this section. Records 
required to be kept must be made available to FRA as provided by 
statute (49 U.S.C. 20107).

Section 234.315 Electronic Recordkeeping

    Proposed Sec.  234.315 would address the keeping of records 
required by proposed subpart E electronically. This proposed section 
applies to railroads that choose to conduct electronic recordkeeping 
under proposed subpart E. These proposed electronic recordkeeping 
requirements are modeled after the requirements set forth in 49 CFR 
217.9(g).
    If a railroad chooses to conduct electronic recordkeeping of 
records required by proposed subpart E, the railroad must provide 
adequate security measures to limit employee access to its electronic 
data processing system and must prescribe who is allowed to create, 
modify, or delete data from the database. Although FRA does not 
identify the management position authorized to institute changes in the 
database, the railroad must indicate the source authorized to make such 
changes. The railroad must have a computer and a facsimile or printer 
connected to the computer to retrieve and produce records for immediate 
review. Section 217.9(g) requires the computer to be a desk-top 
computer. However, FRA recognizes that all railroads may not 
necessarily maintain their records on a desktop computer, so rather 
than adopting this requirement from Sec.  217.9(g); FRA proposes to 
allow railroads the flexibility to maintain their records on other 
types of computers, such as laptops. However, regardless of the 
computer on which the railroad maintains its electronic records, it 
must be possible for a facsimile or printer to be connected to the 
computer to retrieve and produce records for immediate review. The 
documents must be made available for FRA inspection during ``normal 
business hours,'' which FRA interprets as the time, any day of the 
week, when railroads conduct their regular business transactions. 
Nevertheless, FRA reserves the right to review and examine the 
documents prepared in accordance with the applicable section of part 
234 at any reasonable time if situations warrant. Each railroad must 
also designate who will be authorized to authenticate the hard copies 
produced from the electronic format. In short, each railroad electing 
to retain its records electronically must ensure the integrity of the 
information and prevent possible tampering of data, enabling FRA to 
fully execute its enforcement responsibilities.

[[Page 12004]]

Section 234.317 Compliance Dates

    Proposed Sec.  234.317 would state the date by which each of 
various groups of railroads must comply with this proposed subpart. If 
a railroad does not have an ENS of any kind in place on the effective 
date of the subpart, the railroad has 18 months from the effective date 
of the final rule to implement a system that conforms to the subpart. 
This paragraph applies to railroads that do not have anything any place 
that could be considered an ENS as defined in Sec.  234.301. However, 
if a railroad has a system in place, but some or all of the components 
do not conform to this subpart, the amount of time the railroad has to 
bring it into compliance depends on which component is non-compliant.
    If a railroad already has its own ENS telephone service or is using 
a third-party telephone service on the effective date of this subpart, 
but that telephone service does not comply with the requirements 
proposed in Sec. Sec.  234.303 and 243.307, the railroad has six months 
from the effective date of the final rule to bring the telephone 
service into compliance.
    If a railroad already has ENS signs in place on the effective date, 
but those signs do not comply with the requirements set forth in 
proposed Sec.  234.309, subject to proposed Sec.  234.317(d)(2), the 
railroad has five years from the effective date of the final rule to 
bring the signs into compliance. If the railroad replaces a non-
conforming sign before the five-year period, the railroad must replace 
the sign with one that conforms to proposed Sec.  234.309. However, 
there is an exception to this five-year period. To ensure that a non-
conforming sign is still large enough to be visible to the majority of 
grade crossing users, if a sign is less than 60 square inches, the 
railroad has 18 months from the effective date of the final rule to 
bring the sign into compliance with proposed Sec.  234.309. If the 
railroad replaces a non-conforming sign before the 18-month period, the 
railroad must replace the sign with one that conforms to proposed Sec.  
234.309.
    FRA is considering whether to reduce the amount of time that the 
railroad has to bring the sign into compliance based on whether the 
non-compliant element of the sign effectively renders the sign useless. 
For example, if a sign does not comply because the telephone number on 
the sign is not the correct number, the sign is effectively useless 
because a person is unable to report any unsafe conditions at the 
crossing to the appropriate railroad. In these instances it is as if 
there were not a sign at the crossing, thus, the railroad would then 
have 18 months, as required by Sec.  234.317(a), to place a sign at the 
crossing. Therefore, FRA is considering reducing the compliance period 
from five years to 18 months if the non-compliant element of the sign 
effectively renders the sign useless. FRA seeks comment regarding 
reducing the compliance period.
    If a railroad already has ENS signs in place on the effective date, 
but the placement of those signs does not comply with the requirements 
set forth in proposed Sec.  234.311, the railroad has five years from 
the effective date of the final rule to ensure the placement of the 
signs conforms to proposed Sec.  234.311. If the railroad changes the 
placement of the sign before the expiration of the five-year period, 
the placement of the sign must conform to proposed Sec.  234.311. 
Furthermore, if a railroad replaces a sign before the expiration of the 
five-year period so that the sign conforms to proposed Sec.  234.309 
and the placement of the sign does not conform to proposed Sec.  
234.311, the railroad must also change the placement of the sign so 
that it conforms to proposed Sec.  234.311.
    FRA is considering whether to reduce the amount of time that the 
railroad would have to bring the placement of the sign into compliance 
if the only sign at the crossing is placed on the signal bungalow. As 
mentioned previously, signs placed on a signal bungalow are not 
considered to be conspicuous to the grade crossing user; therefore, FRA 
believes that giving the railroad five years to replace signs on the 
bungalow may be excessive and is considering reducing this period to 18 
months. FRA welcomes comments regarding reducing the compliance period 
from five years to 18 months.
    If a railroad already conducts recordkeeping as part of its ENS on 
the effective date, but the recordkeeping does not conform to proposed 
Sec.  234.313, the railroad has six months from the effective date of 
the final rule to ensure that the recordkeeping conforms to proposed 
Sec.  234.313.

V. Regulatory Impact

A. Executive Order 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under both 
Executive Order 12866 and 13563 and DOT policies and procedures. See 44 
FR 11034; February 26, 1979. FRA has prepared and placed in the docket 
a regulatory evaluation addressing the economic impact of this proposed 
rule. FRA has met with and made presentations to those who are likely 
to be affected by this rule in order to seek their views on the rule.
    As part of the regulatory evaluation, FRA has assessed quantitative 
measurements of the cost streams expected to result from the 
implementation of this proposed rule. For the 20-year period analyzed, 
the estimated quantified cost that would be imposed on industry totals 
$36.6 million with a present value (PV, 7 percent) of $18.9 million. 
The requirements that are expected to impose the largest burdens relate 
to recordkeeping and the purchase and installation of signs at grade 
crossings. The table below presents the estimated costs associated with 
the proposed rulemaking.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Section 234.303--Toll-free telephone service...............   $2,052,898
Section 234.307--Third-party telephone service.............        3,520
Section 234.309--Signs (materials).........................    6,709,437
Section 234.309--Signs (installation)......................    4,704,433
Section 234.311--Post (materials)..........................      410,379
Section 234.311--Post (installation).......................      345,293
Section 234.313--Recordkeeping (initial)...................      363,571
Section 234.313--Recordkeeping (remedial)..................    4,265,979
                                                            ------------
    Total..................................................   18,855,511
------------------------------------------------------------------------
Dollars are discounted at a Present value rate of 7 percent.

    As part of the regulatory evaluation, FRA has explained what the 
likely benefits for this proposed rule would be, and provided numerical 
assessments of the potential value of such benefits. The proposed 
rulemaking is expected to improve railroad safety by ensuring that all 
highway-rail and pathway grade crossings have adequate signage to 
enable the public to inform the railroad of emergencies and other 
unsafe conditions. The primary benefits include a heightened safety 
environment in grade crossing areas and potential avoidance of 
casualties, fatalities, and damage through earlier awareness of track 
obstructions, including stalled highway vehicles, and other safety 
hazards. Thus, in general, the proposed rule should decrease grade 
crossing accidents and incidents and associated casualties and damages. 
FRA believes the value of the anticipated safety benefits would meet or 
exceed the cost of implementing the proposed rule. Over a 20-year 
period, this analysis finds that $49.2 million in cost savings

[[Page 12005]]

would accrue through casualty prevention and damage avoidance. The 
discounted value of this is $23.4 million (PV, 7 percent). The table 
below presents the estimated benefits associated with the proposed 
rule.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
10.2 Fatalities (Prevented)...............................   $17,663,562
10.3 Injuries (Prevented).................................     4,908,998
10.4 Highway Vehicle Damage (Avoided).....................       436,715
10.5 Railroad Equipment Damage (Avoided)..................       249,537
10.6 Track/Structure Damage (Avoided).....................       138,718
                                                           -------------
    Total.................................................    23,397,531
------------------------------------------------------------------------
Dollars are discounted at a Present value rate of 7 percent.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
conduct a regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant impact on a 
substantial number of small entities. Pursuant to the Regulatory 
Flexibility Act of 1980, 5 U.S.C. 605(b), the FRA Administrator 
certifies that this proposed rule will not have a significant economic 
impact on a substantial number of small entities. No small railroads 
will be affected by the rule. FRA has prepared and placed in the docket 
this certification. FRA requests comments on this certification as well 
as all other aspects of this NPRM.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for profit ``line-haul 
railroad'' that has fewer than 1,500 employees, a ``short line 
railroad'' with fewer than 500 employees, or a ``commuter rail system'' 
with annual receipts of less than seven million dollars. See ``Size 
Eligibility Provisions and Standards,'' 13 CFR part 121, subpart A. 
Additionally, 5 U.S.C. 601(5) defines as ``small entities'' governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000. Federal agencies 
use a different standard for small entities, in consultation with SBA 
and in conjunction with public comment. Pursuant to that authority FRA 
has published a final statement of agency policy that formally 
establishes ``small entities'' or ``small businesses'' as being 
railroads, contractors and hazardous materials shippers that meet the 
revenue requirements of a Class III railroad as set forth in 49 CFR 
1201.1-1, which is $20 million or less in inflation-adjusted annual 
revenues, and commuter railroads or small governmental jurisdictions 
that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003, 
codified at appendix C to 49 CFR part 209. The $20-million limit is 
based on the Surface Transportation Board's revenue threshold for a 
Class III railroad. Railroad revenue is adjusted for inflation by 
applying a revenue deflator formula in accordance with 49 CFR 1201.1-1. 
FRA is using this definition for this rulemaking.
    Certain provisions of this proposed rule would apply to all 
railroads that dispatch trains over highway-rail or pathway grade 
crossings. Out of the 674 Class III railroads, FRA estimates there are 
117 small railroads that do not have a dispatching function as part of 
their operations and, therefore, would not be affected by these certain 
provisions of this regulation. Therefore, FRA has concluded that 557 
small railroads would be affected by those provisions of this rule. 
However, the impact on these small railroads would not be significant.
    Other provisions of this proposed rule would require railroads that 
own track at highway-rail or pathway grade crossings (or maintain grade 
crossing signal warning systems at such crossings per rule text) to 
incur fixed costs, such as the purchase of signs and posts, which are 
directly proportional to the number of crossings. Additionally, the 
number of calls received is also expected to be proportional to the 
number of highway-rail or pathway grade crossings owned or maintained 
by each railroad.
    Smaller railroads generally have fewer highway-rail or pathway 
grade crossings than larger railroads do. Although each grade crossing 
may have the same probability of being the subject of an ENS-generated 
call, the total burden on smaller railroads should be smaller, when 
implementing and complying with the major requirements of purchasing 
signage and recordkeeping. For example, FRA has found that there are 
137 extremely small railroads, accounting for 4,408 grade crossings. On 
average, each of the 137 railroads has approximately 32 grade 
crossings. Additionally, the average total implementation cost for 
these railroads is approximately $2,300 per railroad for the first year 
and $519 per railroad per year for each of the following 14 years. 
Expressed differently, the cost for these railroads to comply with this 
proposed rule is about $72 per crossing per railroad for the first year 
and approximately $16 per crossing per railroad for each of the 
following 14 years. Railroads with just a few crossings would incur 
minimal costs to comply with this proposed rule. Thus, FRA believes 
that this proposed regulation would not have a significant impact on 
these railroads.
    Some small railroads are subsidiaries of large short-line holding 
companies with the expertise and resources comparable to larger 
railroads. The proposed requirements to install two new signs per 
highway-rail or pathway grade crossing and provide a toll-free 
telephone number to report emergencies and other unsafe conditions 
would not have a significant impact on these railroads. Short lines 
affected by this proposed rule might collaborate with other small 
railroads to jointly implement its requirements, which would lower the 
burden on these small railroads.
    Previously, FRA sampled small railroads and found that revenue 
averaged approximately $4.7 million (not discounted) in 2006. One 
percent of average annual revenue per small railroad, or $47,000, is 
far less than the average annual cost that these railroads would incur 
because of this proposed rule. FRA concludes that the proposed burden 
would not have a noticeable impact on the competitive position of small 
entities, or on the small entity segment of the railroad industry as a 
whole.
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601(b)), FRA 
certifies that this proposed rule would not have a significant impact 
on a substantial number of small entities. Although a substantial 
number of small railroads would be affected by the proposed rule, these 
entities would be significantly impacted. A more thorough discussion on 
the basis of this certification can be found in Appendix B of the 
Regulatory Evaluation, which has been submitted to the docket for this 
proposed rulemaking. FRA invites all interested parties to submit data 
and information regarding the potential economic impact that would 
result from adoption of the proposals in this NPRM. FRA will consider 
all comments received in the public comment process when making a final 
determination for certification of the final rule.

[[Page 12006]]

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 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, the agency consults with 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 has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. FRA has determined that 
the proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, nor on the distribution of power and responsibilities among the 
various levels of government. In addition, FRA has determined that this 
proposed rule will not impose substantial direct compliance costs on 
State and local governments. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    This NPRM amends part 234, which contains FRA principal regulations 
regarding grade crossing safety. Although the final rule on State-
specific highway-rail grade crossing action plans published June 28, 
2010 (75 FR 36552) removed the preemptive effect provision in part 234, 
FRA notes that this part could have preemptive effect by the operation 
of law under a provision of the former Federal Railroad Safety Act of 
1970 (former FRSA), that is, 49 U.S.C. 20106 (Sec. 20106). Sec. 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to Sec. 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this proposed rule has no 
federalism implications, other than the preemption of State laws 
covering the subject matter of this proposed rule, which occurs by 
operation of law under 49 U.S.C. 20106 whenever FRA issues a safety 
rule or order. Accordingly, FRA has determined that preparation of a 
federalism summary impact statement for this proposed rule is not 
required.

D. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. This rulemaking is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.

E. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
are duly designated, and the estimated time to fulfill each requirement 
is as follows:

----------------------------------------------------------------------------------------------------------------
                                       Respondent         Total annual     Average time per      Total annual
       CFR section/subject              universe           responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
234.303(b)--Report to ENS--Unsafe  594 railroads.....  63,891 reports...  1 minute..........  1,065 hours.
 Condition at Highway-Rail
 Crossing.
234.303(c)--Report to ENS          594 railroads.....  1,860 reports....  1 minute..........  155 hours.
 Service--Unsafe Condition at
 Pathway Grade Crossing.
----------------------------------------------------------------------------------------------------------------
234.305(a)--Reported Malfunction   594 railroads.....  465 contacts.....  1 minute..........  8 hours.
 of Warning System at Highway-
 Rail Grade Crossing
 Necessitating Immediate Contact
 by Dispatching RR of All Trains
 Authorized to Operate through
 That Crossing.
--Contact of Crossing Maintenance  594 railroads.....  465 contacts.....  1 minute..........  8 hours.
 Railroad by Dispatching Railroad.
--(b) Other Report of Warning      594 railroads.....  925 contacts.....  1 minute..........  15 hours.
 System Malfunction at Highway-
 Rail Grade Crossing
 Necessitating Immediate Contact
 by Dispatching RR of All Trains
 Authorized to Operate Through
 That Crossing.
--Other Report of Warning System   594 railroads.....  925 contacts.....  1 minute..........  15 hours.
 Malfunction at Highway-rail
 Grade Crossing Necessitating
 Prompt Contact by Dispatching RR
 of Law Enforcement Agency to
 Direct Traffic/Maintain Safety.
--(2) Other Report of Warning      594 railroads.....  925 contacts.....  1 minute..........  15 hours.
 System Malfunction at Highway-
 rail Grade Crossing
 Necessitating Immediate Contact
 by Dispatching RR of All Trains
 Authorized to Operate Through
 That Crossing.
--Dispatching RR Contact of Law    594 railroads.....  920 contacts.....  1 minute..........  15 hours.
 Enforcement Authority to Direct
 Traffic/Maintain Safety.

[[Page 12007]]

 
--Dispatching RR Contact of        594 railroads.....  920 contacts.....  1 minute..........  15 hours.
 Maintaining RR re: Malfunction.
234.305(c)(1)--Report of Warning   594 railroads.....  2 contacts.......  1 minute..........  .03333 hour.
 System Failure at Pathway Grade
 Crossing and Need of Dispatching
 RR to Contact All Trains
 Operating Through It.
--Report of Warning System         594 railroads.....  2 contacts.......  ..................  .03333 hour.
 Failure at Pathway Grade
 Crossing and Need of Dispatching
 RR to Contact Law Enforcement
 Agencies.
--(d) Dispatching RR Contact of    594 railroads.....  2,556 contacts...  1 minute..........  43 hours.
 All Trains Operating Through
 Highway-rail or Pathway Grade
 Crossing Upon Receiving Report
 of Disabled Vehicle or Other
 Obstruction.
--Dispatching RR Contact of Law    594 railroads.....  2,556 contacts...  1 minute..........  43 hours.
 Enforcement Authority Upon
 Receiving Report of Disabled
 Vehicle or Other Obstruction.
--(h) Maintaining RR Provision of  594 railroads.....  10 contacts......  1 minute..........  .1667 hour.
 Contact Information to
 Dispatching RR.
----------------------------------------------------------------------------------------------------------------
234.307--3rd Party Telephone       594 railroads.....  50 contacts......  15 minutes........  13 hours.
 Service.
--RR Contact Information to        594 railroads.....  50 letters.......  60 minutes........  50 hours.
 Service.
--RR Notification to FRA of Use    594 railroads.....  100 contacts.....  1 minute..........  2 hours.
 of Service.
--3rd Party Notification to RR of  50 third parties..  100 contacts.....  1 minute..........  2 hours.
 Report Pursuant to section
 234.303.
----------------------------------------------------------------------------------------------------------------
234.309(a)--ENS Signs--General--   594 railroads.....  10 contacts......  30 mintues........  5 hours.
 Provision of ENS Telephone
 Number to Maintaining RR by
 Dispatching RR.
--(b) ENS Signs Located at         594 railroads.....  422,802 signs....  15 minutes........  105,701 hrs.
 Highway-Rail or Pathway Grade
 Crossings as required by section
 234.311 with Necessary
 Information to Receive Reports
 Required under section 234.303.
----------------------------------------------------------------------------------------------------------------
234.313--Recordkeeping--Records    594 railroads.....  186,000 records..  4 minutes.........  12,400 hours.
 of Reported Unsafe Conditions
 Pursuant to Section 234.303.
----------------------------------------------------------------------------------------------------------------

    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 the following issues: 
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 202-493-6292, or Ms. Kimberly 
Toone at 202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, 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. Toone at the following 
address: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov
    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.

F. Environmental Assessment

    FRA has evaluated this proposed rule 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 proposed rule 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. 
(See 64 FR 28547, May 26, 1999.) Section 4(c)(20) reads as follows: 
``(c) Actions categorically excluded. Certain classes of FRA actions 
have been determined to be categorically excluded from the requirements 
of these Procedures as they do not individually or cumulatively have a 
significant effect on the human environment. * * * The following 
classes of FRA actions are categorically excluded: * * * (20) 
Promulgation of railroad safety rules and policy statements that do not 
result in significantly increased emissions or air or water pollutants 
or noise or increased traffic congestion in any mode of 
transportation.''
    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 regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this

[[Page 12008]]

proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

G. 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 $100,000,000 or more (adjusted 
annually for inflation) in any 1 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. 
For the year 2010, this monetary amount of $100,000,000 has been 
adjusted to $140,800,000 to account for inflation. This proposed rule 
would not result in the expenditure of more than $140,800,000 by the 
public sector in any one year, and thus preparation of such a statement 
is not required.

H. 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 a 
notice of inquiry, advance notice of proposed rulemaking, and notice 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.

I. Privacy Act Statement

    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, STATE ACTION PLANS, 
AND EMERGENCY NOTIFICATION SYSTEMS

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

    Authority: 49 U.S.C. 20103, 20107, 20152, 21301, 21304, 21311, 
22501 note; Pub. L. 110-432, Div. A, Sec.  202; 28 U.S.C. 2461, 
note; 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.

    (a) This part imposes minimum maintenance, inspection, and testing 
standards for highway-rail grade crossing warning systems. This part 
also prescribes standards for the reporting by railroad and public 
agency employees of failures of such systems and prescribes minimum 
actions that 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 also prescribes 
minimum requirements that railroads establish systems for receiving 
toll-free telephone calls from the public at large about unsafe 
conditions at highway-rail and pathway grade crossings and for taking 
certain actions in response to those calls.
    (b) This part does not restrict a railroad 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 and responsibility for compliance.

    (a) With the exception of Sec.  234.11, this part applies to all 
railroads, all contractors for railroads, and all subcontractors for 
railroads except the following:
    (1) Operations of a plant railroad as defined in Sec.  234.5;
    (2) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation; or
    (3) Tourist, scenic, historic, or excursion operations conducted 
only on track used exclusively for that purpose (i.e., there is no 
freight, intercity passenger, or commuter passenger railroad operation 
on the track) and only on track inside an installation that is insular; 
i.e., the 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:
    (i) A public highway-rail crossing that is in use;
    (ii) An at-grade rail crossing that is in use;
    (iii) A bridge over a public road or waters used for commercial 
navigation; or
    (iv) A common corridor with a railroad, i.e., its operations are 
within 30 feet of those of any railroad.
    (b) Although the duties imposed by this subpart are generally 
stated in terms of the duty of a railroad, each person, including a 
contractor or subcontractor for a railroad, who performs any task 
covered by this subpart, shall perform that task in accordance with 
this subpart.
    5. Section 234.5 is revised by revising the definition of 
``Credible report of system malfunction'' and adding definitions of 
``FRA'' and ``Plant railroad'' in alphabetical order to read as 
follows:


Sec.  234.5  Definitions.

    As used in this part--
* * * * *
    Credible report of warning system malfunction means specific 
information regarding a malfunction at an identified highway-rail grade 
crossing, supplied by

[[Page 12009]]

a railroad employee, law enforcement officer, highway traffic official, 
or other employee of a public agency acting in an official capacity.
* * * * *
    FRA means the Federal Railroad Administration, U.S. Department of 
Transportation.
* * * * *
    Plant railroad means a plant or installation that owns or leases a 
locomotive, uses that locomotive to switch cars throughout the plant or 
installation, and is moving goods solely for use in the facility's own 
industrial processes. The plant or installation could include track 
immediately adjacent to the plant or installation if the plant railroad 
leases the track from the general system railroad and the lease 
provides for (and actual practice entails) the exclusive use of that 
trackage by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
will not be considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation.
* * * * *
    6. The heading to subpart C of part 234 is revised to read as 
follows:

Subpart C--Response to Reports from Railroad and Public Agency 
Employees of Warning System Malfunction at Highway-Rail Grade 
Crossings.

* * * * *
    7. Subpart E of part 234 is added to read as follows:

Subpart E--Emergency Notification Systems for Reporting Unsafe 
Conditions at Highway-Rail and Pathway Grade Crossings

Sec.
234.301 Definitions.
234.303 Telephonic notification of unsafe conditions at a highway-
rail or pathway grade crossing.
234.305 Remedial actions.
234.307 Third-party telephone service.
234.309 ENS signs in general.
234.311 ENS sign placement and maintenance.
234.313 Recordkeeping.
234.315 Electronic recordkeeping.
234.317 Compliance dates.


Sec.  234.301  Definitions.

    As used in this subpart--
    Automated answering service means a type of answering service in 
which a telephone call is answered by any means other than an actual 
human being speaking live to the caller at the time that the call is 
made.
    Class II and Class III have the meaning assigned by regulations of 
the Surface Transportation Board (49 CFR part 1201; General 
Instructions 1-1), as those regulations may be revised and applied by 
order of the Board (including modifications in class threshold based on 
revenue deflator adjustments).
    Dispatching railroad means a railroad that dispatches or otherwise 
provides the authority for the movement of one or more trains through a 
highway-rail or pathway grade crossing.
    Emergency Notification System means a system in place by which a 
railroad receives, processes, and attends to reports of an unsafe 
condition at a highway-rail or pathway grade crossing through which it 
dispatches a train. An Emergency Notification System includes the 
following components:
    (1) Signs, placed and maintained at the grade crossings by the 
railroad responsible for maintaining the crossing, that display the 
information necessary for the public to report an unsafe condition at 
the grade crossing to the railroad that dispatches trains through the 
crossing;
    (2) The method that the dispatching railroad uses to receive and 
process a telephone call reporting the unsafe condition;
    (3) The remedial actions that the dispatching railroad takes to 
address the report of the unsafe condition;
    (4) The remedial actions that the maintaining railroad takes if the 
dispatching railroad does not have maintenance responsibility; and
    (5) The recordkeeping conducted by the railroad or railroads in 
response to the report of the unsafe condition at the grade crossing.
    ENS means Emergency Notification System as defined in this section.
    Highway-rail and pathway grade crossing means a highway-way rail 
grade crossing and a pathway grade crossing.
    Highway-rail or pathway grade crossing means either a highway-rail 
grade crossing or a pathway grade crossing.
    Maintaining railroad means the owner of the track at the highway-
rail or the pathway grade crossing. If the track owner has contracted 
out the responsibility to maintain a warning system or track structure 
at a highway-rail or a pathway grade crossing, the contractor is 
considered the ``maintaining railroad'' for the purposes of this 
subpart.
    Pathway grade crossing means a pathway that has all of the 
following characteristics:
    (1) That is explicitly authorized by a public authority or a 
railroad;
    (2) That is dedicated for the use of nonvehicular traffic, 
including pedestrians, bicyclists, and others;
    (3) That is not associated with a public highway, road, or street, 
or a private roadway; and
    (4) That crosses one or more railroad tracks at grade.


Sec.  234.303  Telephonic notification of unsafe conditions at a 
highway-rail or pathway grade crossing.

    (a) Duty of dispatching railroad in general. Each dispatching 
railroad shall establish and maintain a toll-free telephone service by 
which the railroad can directly receive calls from the public reporting 
any of the conditions listed in paragraph (b) of this section with 
respect to a highway-rail grade crossing through which the railroad 
dispatches a train and paragraph (c) of this section with respect to a 
pathway grade crossing through which the railroad dispatches a train. 
The railroad shall not use an automated answering service for the 
purpose of receiving reports pursuant to this section.
    (b) Reportable unsafe conditions at highway-rail grade crossings. 
Each dispatching railroad shall establish a service pursuant to Sec.  
234.303(a) to receive reports or specific information regarding the 
following conditions with respect to a highway-rail grade crossing 
through which it dispatches a train:
    (1) A warning system malfunction at the highway-rail grade 
crossing;
    (2) A disabled vehicle or other obstruction blocking a railroad 
track at the highway-rail grade crossing;
    (3) An obstruction to the view of a pedestrian or a vehicle 
operator for a reasonable distance in either direction of a train's 
approach to the highway-rail grade crossing; or
    (4) Any information relating to any other unsafe condition at the 
highway-rail grade crossing.
    (c) Reportable unsafe conditions at pathway grade crossings. Each 
dispatching railroad shall establish a service pursuant to Sec.  
234.303(a) to receive reports or information regarding the following 
conditions with respect to a pathway grade crossing through which it 
dispatches a train:
    (1) A failure of the active warning system at the pathway grade 
crossing to perform as intended;
    (2) An obstruction blocking a railroad track at the pathway grade 
crossing;

[[Page 12010]]

    (3) An obstruction to the view of a pathway grade crossing user for 
a reasonable distance in either direction of a train's approach to the 
pathway grade crossing; or
    (4) Any information relating to any other unsafe condition at the 
pathway grade crossing.
    (d) Class II or III dispatching railroads. A Class II or Class III 
railroad that dispatches a train through a highway-rail or pathway 
grade crossing within an area in which the use of a non-toll-free 
number would not incur any additional fees for the caller compared to 
if a toll-free number was used, may use that non-toll-free number to 
receive calls pursuant to Sec.  234.303(a) regarding each such crossing 
in that area.
    (e) If a report of an unsafe condition at a highway-rail or pathway 
grade crossing was not made through the telephone service described in 
paragraph (a) of this section, subpart E does not apply to that report.


Sec.  234.305  Remedial actions.

    (a) General rule on response to credible reports of warning system 
malfunction at highway-rail grade crossing. (1) If a railroad receives 
a report pursuant to Sec.  234.303(b)(1) that is a credible report of 
warning system malfunction at a highway-rail grade crossing and the 
railroad has maintenance responsibility for the warning system to which 
the report pertains, the railroad shall take the appropriate action 
required by subpart C of this part.
    (2) If a railroad receives a report pursuant to Sec.  234.303(b)(1) 
that is a credible report of warning system malfunction at a highway-
rail grade crossing and that railroad does not have maintenance 
responsibility for the warning system to which the report pertains, the 
railroad shall immediately contact all trains that are authorized to 
operate through the highway-rail grade crossing and warn the trains of 
the reported malfunction. The railroad shall then immediately contact 
the railroad that has maintenance responsibility for the warning system 
and inform it of the reported malfunction. The railroad that has 
maintenance responsibility for the warning system at the highway-rail 
grade crossing shall take the appropriate action required by subpart C 
of this part.
    (b) General rule on response to other reports of warning system 
malfunction at highway-rail grade crossing. (1) If a railroad receives 
a report of warning system malfunction pursuant to Sec.  234.303(b)(1) 
that is not a credible report of warning system malfunction at a 
highway-rail grade crossing and that railroad has maintenance 
responsibility for the warning system to which the report pertains, the 
railroad shall immediately contact all trains that are authorized to 
operate through the highway-rail grade crossing and warn the trains of 
the reported malfunction. The railroad shall also promptly contact the 
law enforcement agency having jurisdiction over the highway-rail grade 
crossing and provide the necessary information for the law enforcement 
agency to direct traffic or carry out other activities to maintain 
safety at the highway-rail grade crossing. The railroad shall then 
promptly investigate the report and determine the nature of the 
malfunction and shall take the appropriate action required by Sec.  
234.207(a).
    (2) If a railroad receives a report of warning system malfunction 
pursuant to Sec.  234.303(b)(1) that is not a credible report of 
warning system malfunction and that railroad has dispatching 
responsibility for the crossing but does not have maintenance 
responsibility for the warning system at the highway-rail grade 
crossing, the railroad shall immediately contact all trains that are 
authorized to operate through the highway-rail grade crossing to which 
the report pertains and warn the trains of the reported malfunction. 
The railroad shall also promptly contact the law enforcement agency 
having jurisdiction over the highway-rail grade crossing and provide 
the necessary information for the law enforcement agency to direct 
traffic or carry out other activities to maintain safety at the 
highway-rail grade crossing. The railroad shall then promptly contact 
the railroad that has maintenance responsibility for the warning system 
and inform it of the reported malfunction. The railroad having 
maintenance responsibility shall promptly investigate the report and 
determine the nature of the malfunction and shall take the appropriate 
action required by Sec.  234.207(a).
    (c) General rule on response to warning system failure at a pathway 
grade crossing. (1) If a railroad receives a report of warning system 
failure at a pathway grade crossing pursuant to Sec.  234.303(c)(1) and 
that railroad has maintenance responsibility for the warning system to 
which the report pertains, the railroad shall immediately contact all 
trains that are authorized to operate through the pathway grade 
crossing and warn the trains of the reported failure. The railroad 
shall also promptly contact the law enforcement agency having 
jurisdiction over the pathway grade crossing and provide the necessary 
information for the law enforcement agency to direct traffic or carry 
out other activities to maintain safety at the pathway grade crossing. 
The railroad shall then promptly investigate the report and determine 
the nature of the failure and repair the active warning system if 
necessary.
    (2) If a railroad receives a report of warning system failure at a 
pathway grade crossing pursuant to Sec.  234.303(c)(1) and that 
railroad has dispatching responsibility for the pathway grade crossing 
but does not have maintenance responsibility for the warning system to 
which the report pertains, the railroad shall immediately contact all 
trains that are authorized to operate through the pathway grade 
crossing to which the report pertains and warn the trains of the 
reported failure. The railroad shall also promptly contact the law 
enforcement agency having jurisdiction over the pathway grade crossing 
and provide the necessary information for the law enforcement agency to 
direct traffic or carry out other activities to maintain safety at the 
pathway grade crossing. The railroad shall then promptly contact the 
railroad that has maintenance responsibility for the warning system and 
inform it of the reported failure. The railroad having maintenance 
responsibility shall then promptly investigate the report and determine 
the nature of the failure and shall repair the warning system if 
necessary.
    (d) General rule on dispatching railroad's response to reports of a 
disabled vehicle or other obstruction blocking a railroad track at a 
highway-rail or pathway grade crossing. Upon receiving a report 
pursuant to Sec.  234.303(b)(2) or (c)(2), the railroad shall 
immediately contact all trains that are authorized to operate through 
the highway-rail or pathway grade crossing to which the report pertains 
and warn the trains of the reported disabled vehicle or other track 
obstruction. After contacting the necessary trains, the railroad shall 
promptly contact the law enforcement agency having jurisdiction over 
the highway-rail or pathway grade crossing to provide it with the 
information necessary to assist in the removal of the reported track 
obstruction or to carry out other activities as appropriate.
    (e) Special rule on contacting a train that is not required to have 
communication equipment. If a railroad is not required by Sec.  220.9 
of this chapter to have a working radio or working wireless 
communications in each occupied controlling locomotive of its trains 
and the dispatching railroad receives a report pursuant to Sec.  
234.303(b)(1), (b)(2), (c)(1), or (c)(2)

[[Page 12011]]

about a crossing that one of the trains is authorized to operate 
through, the dispatching railroad shall immediately contact the 
occupied controlling locomotive of the train as required by Sec.  
234.305(a), (b), (c), or (d) by the quickest means available consistent 
with Sec.  220.13(a) of this chapter.
    (f) General rule on response to reports of obstruction of view at 
highway-rail or pathway grade crossings. Upon receiving a report 
pursuant to Sec.  234.303(b)(3) or (c)(3), the dispatching railroad, if 
it is also the maintaining railroad, shall timely investigate the 
report and shall remove the obstruction if it is feasible and lawful to 
do so. If the dispatching railroad is not the maintaining railroad, the 
dispatching railroad shall promptly contact the maintaining railroad, 
which shall timely investigate the report and which shall remove the 
obstruction, if it is lawful and feasible to do so.
    (g) General rule on response to reports of other unsafe conditions 
at highway-rail or pathway grade crossings. (1) Upon receiving a report 
pursuant to Sec.  234.303(b)(4) or (c)(4) related to the maintenance of 
a crossbuck sign or other similar grade crossing safety device not 
covered by Sec.  234.305(a), (b), or (c), the dispatching railroad, if 
it also has maintenance responsibility for the device, shall timely 
investigate the report; and, if it finds that the unsafe condition 
exists, the dispatching railroad shall timely correct it if it is 
lawful and feasible to do so. If the dispatching railroad does not have 
maintenance responsibility for the device, the dispatching railroad 
shall timely inform the railroad with maintenance responsibility for 
the device, and the maintaining railroad shall timely investigate the 
report; and, if the maintaining railroad finds that the unsafe 
condition exists, the railroad shall timely correct it if it is lawful 
and feasible to do so.
    (2) Upon receiving a report pursuant Sec.  234.303(b)(4) or (c)(4), 
not covered by Sec.  234.305(g)(1), the dispatching railroad, if it is 
also the maintaining railroad, shall timely investigate the report; 
and, if it finds that the unsafe condition exists, the dispatching 
railroad shall timely correct it if it is lawful and feasible to do so. 
If the dispatching railroad is not the maintaining railroad, the 
dispatching railroad shall timely inform the maintaining railroad of 
the report, and the maintaining railroad shall timely investigate the 
report; and, if the maintaining railroad finds that the unsafe 
condition exists, the railroad shall timely correct it if it is lawful 
and feasible to do so.
    (h) General rule on contacting the maintaining railroad and use of 
an automated answering service. If the dispatching railroad is required 
under this section to contact the maintaining railroad, the maintaining 
railroad shall--
    (1) Provide the dispatching railroad with sufficient contact 
information by which the dispatching railroad may immediately contact 
the maintaining railroad upon receipt of a report; and
    (2) Not use an automated answering service for the purpose of 
receiving a call from the dispatching railroad.


Sec.  234.307  Third-party telephone service.

    (a) Use of a third-party service. A railroad may use a third-party 
service to directly receive reports pursuant to Sec.  234.303. The 
third-party service shall be reached directly by the telephone number 
placed on the sign pursuant to Sec.  234.309. The third-party service 
shall not use an automated answering service for the purpose of 
receiving such reports, and the contracting railroad shall ensure that 
the third-party service does not use an automated answering service for 
the purpose of receiving such reports.
    (b) Duties of railroad using third-party service. If a railroad 
uses a third-party service to directly receive reports pursuant to 
Sec.  234.303, the railroad--
    (1) Shall provide the third-party service with sufficient contact 
information by which the third-party service may immediately contact 
the contracting railroad upon receipt of a report;
    (2) Shall not use an automated answering service to receive calls 
from the third-party service for the purpose of receiving reports 
pursuant to Sec.  234.303;
    (3) Shall promptly inform FRA of its intent to use a third-party 
service and shall provide FRA with contact information for the third-
party service, and information identifying the highway-rail and pathway 
grade crossings about which the third-party service will receive 
reports; and
    (4) Upon being contacted by the third-party service about a report 
pursuant to Sec.  234.303, the railroad shall take appropriate action 
as required by Sec.  234.305.
    (c) Duties of third-party service. Upon receiving a report pursuant 
to Sec.  234.303, the third-party service shall immediately contact the 
contracting railroad, and, at a minimum, provide the railroad with the 
following:
    (1) Information on the nature of the reported unsafe condition;
    (2) Information on the location of the unsafe condition, including 
the U.S. DOT National Crossing Inventory File Number;
    (3) Information on whether the person reporting the unsafe 
condition is a railroad employee, law enforcement officer, highway 
traffic official, or other employee of a public agency acting in an 
official capacity; and
    (4) Any additional information provided by the caller that may be 
useful to restore the crossing to a safe condition.
    (d) Third-party service and contracting railroad liability. A 
third-party service is responsible for complying with this subpart. In 
addition, the contracting railroad is vicariously liable for the acts 
or omissions of the third-party service under the contract in violation 
of this subpart.


Sec.  234.309  ENS signs in general.

    (a) No later than 30 days before the implementation of an ENS, the 
dispatching railroad for a highway-rail or pathway grade crossing shall 
provide to the maintaining railroad for the crossing the telephone 
number to be posted on the ENS sign at the crossing if the dispatching 
railroad and the maintaining railroad are not the same.
    (b) Each ENS sign located at each highway-rail or pathway grade 
crossing as required by Sec.  234.311 shall have the necessary 
information for the dispatching railroad to receive reports of unsafe 
conditions at the crossing. This information, at a minimum, includes 
the toll-free number (or non-toll-free number as provided for in Sec.  
234.303(d)) established to receive reports pursuant to Sec.  
234.303(a), an explanation of the purpose of the sign, and the U.S. DOT 
National Crossing Inventory File Number assigned to that crossing.
    (c) Each ENS sign shall be at least 12 inches wide by 9 inches 
high, have lettering measuring, at a minimum, 1 inch in height, and 
have a white legend and border on a blue background.


Sec.  234.311  ENS sign placement and maintenance.

    (a) The maintaining railroad for a highway-rail or pathway grade 
crossing shall place and maintain a sign that conforms to Sec.  234.309 
at the crossing for each direction of traffic at that crossing. A 
pathway grade crossing is considered to have a minimum of two 
directions of traffic unless specifically designed for traffic in one 
direction only.
    (b) Each sign required by paragraph (a) of this section shall be 
located and maintained by the maintaining railroad so that it--
    (1) Is conspicuous to users of the roadway or pathway;

[[Page 12012]]

    (2) Optimizes its visibility at nighttime;
    (3) Minimizes the effect of mud splatter and debris; and
    (4) Does not obscure any other sign at the crossing.
    (c) A sign placed on the signal bungalow shall not be deemed to 
comply with Sec.  234.311(b).


Sec.  234.313  Recordkeeping.

    (a) Each railroad subject to this subpart shall keep records in 
accordance with paragraph (b) of this section pertaining to its 
compliance with this subpart. Records may be kept either on paper forms 
provided by the railroad or by electronic means in a manner that 
conforms with Sec.  234.315. Each railroad responsible for receiving 
reports pursuant to Sec.  234.303(a) and, if applicable, each railroad 
with maintenance responsibility shall keep, at a minimum, the following 
information for each report received under this subpart:
    (1) The nature of the reported unsafe condition;
    (2) Location of the highway-rail or pathway grade crossing (by 
highway name, if applicable, and U.S. DOT National Crossing Inventory 
File Number);
    (3) Time and date of receipt of the report by the railroad;
    (4) Whether the person who provided the report was a railroad 
employee, law enforcement officer, highway traffic official, or other 
employee of a public agency acting in an official capacity;
    (5) Actions taken by the railroad prior to rectifying the reported 
unsafe condition at the grade crossing;
    (6) If the reported unsafe condition is substantiated, actions 
taken by the railroad to rectify the reported unsafe condition, if 
possible;
    (7) Time and date at which the reported unsafe condition was 
rectified; and
    (8) If a railroad is required by this subpart to contact a railroad 
with maintenance responsibility, the time and date the railroad 
contacted the railroad having maintenance responsibility.
    (b) A railroad having maintenance responsibility over warning 
devices at a highway-rail grade crossing that maintains records 
pursuant to Sec.  234.109, shall be deemed to comply with the 
recordkeeping requirements of this subpart with regards to credible 
reports of warning system malfunctions.
    (c) Each railroad shall retain for at least one year (from the 
latest date of railroad activity in response to a report received under 
this subpart) all records referred to in paragraph (a) of this section. 
Records required to be kept shall be made available to the FRA as 
provided by 49 U.S.C. 20107.


Sec.  234.315  Electronic recordkeeping.

    (a) If a railroad subject to this subpart keeps a record required 
by this subpart electronically in lieu of on paper, the system for 
keeping the electronic record must meet all of the following 
conditions:
    (1) The railroad adequately limits and controls accessibility to 
the record retained in its electronic database system and identifies 
those individuals who have such access;
    (2) The railroad has a terminal at the location designated by the 
railroad as the general office for the railroad system and at each 
division headquarters;
    (3) Each such terminal has a computer and either a facsimile 
machine or a printer connected to the computer to retrieve and produce 
information in a usable format for immediate review by FRA 
representatives;
    (4) The railroad has a designated representative who is authorized 
to authenticate retrieved information from the electronic system as a 
true and accurate copy of the electronically kept record; and
    (5) The railroad provides FRA representatives with immediate access 
to the record for inspection and copying during normal business hours 
and provides a printout of such record upon request.
    (b) If a record required by this part is in the form of an 
electronic record kept by an electronic recordkeeping system that does 
not comply with paragraph (a) of this section, then the record must be 
kept on paper.


Sec.  234.317  Compliance dates.

    (a) If a railroad subject to this subpart does not have an ENS of 
any kind in place on the effective date of this subpart, the railroad 
shall implement an ENS that conforms to this subpart no later than 18 
months after the effective date of this subpart.
    (b) If a railroad subject to this subpart already has its own ENS 
telephone service or is using a third-party ENS telephone service on 
the effective date of this subpart, and that telephone service does not 
conform to the requirements in Sec.  234.303 or Sec.  234.307, 
respectively, the railroad shall comply with Sec.  234.303 or Sec.  
234.307, respectively, no later than six months after the effective 
date of this subpart.
    (c)(1) If a railroad subject to this subpart already has ENS signs 
in place on the effective date of this subpart and those signs do not 
conform to the requirements in Sec.  234.309, subject to Sec.  
234.317(c)(2), the railroad's ENS signs shall conform to Sec.  234.309 
no later than five years after the effective date of this subpart. If 
the railroad replaces a non-conforming sign before the expiration of 
the five-year period, the railroad shall replace that sign with a sign 
that conforms to Sec.  234.309.
    (2) If a railroad subject to this subpart already has ENS signs in 
place on the effective date of this subpart and those signs measure 
less than 60 square inches, those ENS signs shall conform to Sec.  
234.309 no later than 18 months after the effective date of this 
subpart. If the railroad replaces a non-conforming sign before the 
expiration of the 18-month period, the railroad shall replace that sign 
with a sign that conforms to Sec.  234.309.
    (d) If a railroad subject to this subpart already has ENS signs in 
place on the effective date of this subpart and the placement of those 
signs does not conform to the requirements in Sec.  234.311, the 
placement of the railroad's ENS signs shall conform to Sec.  234.311 no 
later than five years after the effective date of this subpart. If a 
railroad replaces a sign before the five-year period so that the sign 
conforms with Sec.  234.309, and the placement of that sign does not 
conform with Sec.  234.311, the railroad shall also change the 
placement of the sign so that it conforms to Sec.  234.311.
    (e) If a railroad subject to this subpart already conducts 
recordkeeping as part of its ENS on the effective date of this subpart 
and that recordkeeping does not conform to Sec.  234.313 or Sec.  
234.315, the railroad's recordkeeping shall conform to Sec.  234.313 or 
Sec.  234.315 no later than six months after the effective date of this 
subpart.

    Issued in Washington, DC, on February 28, 2011.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2011-4759 Filed 3-3-11; 8:45 am]
BILLING CODE 4910-06-P


