
[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Rules and Regulations]
[Pages 35164-35197]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13843]



[[Page 35163]]

Vol. 77

Tuesday,

No. 113

June 12, 2012

Part III





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 234





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

  Federal Register / Vol. 77 , No. 113 / Tuesday, June 12, 2012 / Rules 
and Regulations  

[[Page 35164]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2009-0041, Notice No. 2]
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: Final rule.

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SUMMARY: This final rule requires certain railroads to establish and 
maintain systems that allow members of the public to call the 
railroads, using a toll-free telephone number, and report an emergency 
or other unsafe condition at highway-rail and pathway grade crossings. 
The rule refers to such a system as an ``Emergency Notification 
System,'' and it consists of the following components: the signs, 
placed at the grade crossing, that display the information necessary 
for the public to report an unsafe condition to the appropriate 
railroad; the method that the railroad uses to receive and process a 
telephone call reporting the unsafe condition; the remedial actions 
that the appropriate railroad or railroads take to address the report 
of the unsafe conditions; and the related recordkeeping conducted by 
the railroad(s).

DATES: This final rule is effective August 13, 2012. Petitions for 
reconsideration must be received on or before August 13, 2012. 
Petitions for reconsideration will be posted in the docket for this 
proceeding. Comments on any submitted petition for reconsideration must 
be received on or before September 25, 2012.

ADDRESSES: Petitions for reconsideration or comments on such petitions: 
Any petitions and any comments to petitions related to Docket No. FRA-
2009-0041, Notice No. 2, may be submitted by any of the following 
methods:
     Web Site: Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue SE., W12-140, 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 to 
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.

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 Sara Mahmoud-Davis, Trial Attorney, Office of Chief Counsel, FRA, 
1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590 
(telephone: 202-366-1118), sara.mahmoud-davis@dot.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Statutory Background
III. History of Accidents Relevant to This Rulemaking
IV. History of Emergency Notification Systems (ENS)
    A. In General
    B. Various ENS Programs in the United States
    C. FRA's 2006 Report to Congress
V. Section-by-Section Analysis
VI. 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. Executive Summary

A. In General

    There are approximately 211,000 public and private highway-rail and 
pathway grade crossings in the United States. Each year since 1997, 
highway-rail and pathway grade crossing collisions have caused more 
railroad-related deaths than any other single factor, except for 
trespassing on railroad property.
    This rule furthers FRA's efforts to reduce deaths and injuries at 
grade crossings and elsewhere along the Nation's railroads, by 
requiring railroads to implement a telephonic system, referred to as an 
``Emergency Notification System'' or ``ENS,'' through which they 
receive reports of unsafe conditions at crossings. Specifically, this 
rule implements Section 205 (Sec. 205) of the Rail Safety Improvement 
Act of 2008 (RSIA), Public Law 110-432, Division A, which was signed 
into law on October 16, 2008, and which is detailed later in this 
preamble. This rule uses experience gained through pre-existing 
voluntary, State, and Federal programs for systems similar to ENS, as 
well as the U.S. DOT National Crossing Inventory, which began as a 
voluntary program, and reflects comments on FRA's Notice of Proposed 
Rulemaking (NPRM) published March 4, 2011 (76 FR 11992). To a certain 
extent, this rule also builds on pre-existing regulations in 49 CFR 
part 234 that govern a railroad's response to certain reports of a 
malfunction of a highway-rail grade crossing signal system and 
maintenance, inspection, and testing of highway-rail grade crossing 
signal systems.

B. Overview of Rule Requirements

1. Telephonic Reporting of Unsafe Conditions at Crossings
    This rule requires each railroad that dispatches a train, or 
otherwise provides the authority for the movement of a train, through a 
highway-rail or pathway grade crossing, to set up and maintain an ENS 
by which the railroad is able to directly receive telephonic reports 
from the public of certain unsafe conditions at the crossing and then 
take specified action to respond to those reports. There are four 
categories of reportable unsafe conditions for each highway-rail and 
pathway grade crossing. Generally, these categories are (1) 
Malfunctions of signals, crossing gates, and other devices to promote 
safety at the grade crossing; (2) disabled vehicles and other 
obstructions blocking railroad tracks at the crossing; (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 the crossing; and 
(4) any other unsafe condition at the crossing, such as a downed 
crossbuck sign or a pot hole in the crossing.
    The railroad that dispatches a train through a crossing is called 
the

[[Page 35165]]

``dispatching railroad.'' The dispatching railroad may receive these 
reports by a variety of methods. The railroad may have a live person 
answer the calls directly, or use a third-party telephone service. As 
will be discussed later in more detail, FRA made revisions to the 
proposed rule that permit a railroad to set up an automated answering 
system, which ultimately results in the caller speaking to a live 
person, or, under certain circumstances, the railroad may use an 
answering machine to receive reports.
    Sometimes a railroad does not have the responsibility for 
maintaining the particular crossing through which it dispatches a 
train. The rule provides that if the dispatching railroad does not have 
maintenance responsibility for the crossing that is the subject of the 
report received through the ENS, and if the report involves maintenance 
of the crossing, then the dispatching railroad must relay the report to 
the railroad responsible for maintaining the crossing (the maintaining 
railroad) for investigation and remedial action. Accordingly, the 
maintaining railroad must set up a telephonic system for receiving such 
phone calls from the dispatching railroad. Depending on the 
circumstances, the maintaining railroad may receive such calls through 
the use of an automated answering system, third-party telephone 
service, or answering machine.
    It should also be noted that the rule addresses situations where 
multiple railroads dispatch trains through the same crossing, by 
requiring those railroads to identify one primary dispatching railroad 
that is responsible for receiving reports made via the ENS for the 
crossing.
2. Remedial Actions To Be Taken by Railroads
    As will be discussed later in more detail, the receipt of a report 
made through the ENS of an unsafe condition at a crossing triggers 
certain responsibilities each for dispatching and maintaining 
railroads. The dispatching railroad upon receiving such a report and 
depending on the nature of the report, is required to contact all 
trains authorized to operate through the crossing to which the report 
pertains, inform local law enforcement officers of the reported unsafe 
condition so that they may direct traffic or otherwise assist in 
ensuring the safety of the crossing, and then 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 is required to take certain actions to remedy the unsafe 
condition.
3. Characteristics and Number of ENS Signs To Be Placed and Maintained 
at a Crossing
    This rule establishes requirements for the physical 
characteristics, number, placement, and maintenance of ENS signs. In 
general, each ENS sign must display a minimum amount of information, 
the toll-free telephone number of the dispatching railroad, an 
explanation of the purpose of the sign (e.g., ``Report emergency or 
problem to ------''), and the U.S. DOT National Crossing Inventory 
number assigned to that crossing.
    The ENS signs also must meet certain color and size requirements. 
Furthermore, the signs must be posted at the crossing in a manner that 
they are conspicuous to the roadway or pathway user, do not obstruct 
other signs or traffic control devices, and do not limit the view of 
trains approaching the crossing. The signs also must be crashworthy if 
mounted on a post.
    In general, an ENS sign must be placed on each approach to a 
highway-rail or pathway grade crossing. There are two exceptions. At a 
farm grade crossing, a railroad is required to install and maintain 
only one ENS sign. Additionally, one sign is sufficient at each 
vehicular entrance to a certain type of private industrial facility.
    In general, the responsibility for the placement and maintenance of 
an ENS sign at a crossing is the responsibility of the maintaining 
railroad. However, it should also be noted that, where there are 
multiple railroads that maintain the same crossing, the rule requires 
that those railroads identify one to be responsible for the placement 
and maintenance of the sign(s) at the crossing.
4. Compliance Dates
    In this rule, FRA extends several of the compliance dates beyond 
the dates proposed in the NPRM, to provide railroads a longer period of 
time to phase in implementation of an ENS. FRA made several significant 
changes from the proposed rule, which will be discussed later in more 
detail. For example, a railroad subject to the rule that has no type of 
ENS currently in place now has until September 1, 2015, to establish 
such a system. Additionally, for a railroad that currently has ENS 
signs in place at its crossings, the requirements for replacing the 
sign are as follows: If the sign is 60 square inches or greater with 
lettering that measures at least \3/4\ inch high, the railroad is 
permitted to retain the sign for the duration of the sign's useful 
life; if the sign is 60 square inches or greater, but the lettering 
measures less than \3/4\ inch high, the railroad must replace the sign 
by September 1, 2017; and if the sign is smaller than 60 square inches, 
regardless of the size of the lettering, the railroad must replace the 
sign by September 1, 2015.

C. Expected Costs and Benefits of the Rule

    FRA has estimated the costs of this rule, evaluated over a 15-year 
period and using a discount rate of 7 percent. For the 15-year period 
analyzed, the estimated quantified cost that will be imposed on 
railroads totals $15.6 million, with a present value (PV, 7 percent) of 
$10.1 million. This rule is expected to improve railroad safety by 
ensuring that all crossings have adequate signage displaying a 
telephone number for reporting unsafe conditions at the crossing to the 
railroad. The primary benefits include heightened safety at crossings 
from an earlier awareness of potential track obstructions, crossing 
signal malfunctions, and other safety issues, which FRA anticipates 
will reduce related crossing accidents and the associated fatalities, 
injuries, and damages. Thus, in general, implementation of this rule 
should decrease railroad accidents at crossings as well as other 
railroad accidents, and associated casualties and damages. Based on 
FRA's analysis, the agency has found that the expected accident-
reduction benefits will exceed the total cost of this rule. Over a 15-
year period, this analysis concludes that $57.8 million in cost savings 
will accrue through casualty prevention and damage avoidance. The 
discounted value of this casualty prevention and damage avoidance is 
$31.7 million (PV, 7 percent).
    The table below presents the estimated costs associated with this 
rule.

                15-Year Estimated Costs of the Final Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Section 234.303--Toll-Free Service.........................     $989,870
Section 234.306--Multiple Dispatching or Maintaining               9,800
 Railroads.................................................
Section 234.307--Third-Party Service.......................        2,881
Section 234.309--Signs (Materials).........................    2,863,448
Section 234.309--Signs (Installation)......................    2,007,754
Section 234.311--Post (Materials)..........................      238,621

[[Page 35166]]

 
Section 234.311--Post (Installation).......................      200,775
Section 234.313--Initial Recordkeeping.....................      299,790
Section 234.313--Remedial Recordkeeping....................    3,490,728
                                                            ------------
                                                             ...........
    Total..................................................   10,103,668
------------------------------------------------------------------------
Dollars are discounted at a present value rate of 7 percent. Note that
  numbers may not add due to rounding.

    The table below presents the estimated benefits associated with 
this rule.

              15-Year Estimated Benefits of the Final Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Fatalities (Prevented).....................................  $21,519,783
Injuries (Prevented).......................................    8,587,839
Highway Vehicle Damage (Avoided)...........................      651,130
Railroad Equipment Damage (Avoided)........................      327,922
Track/Structure Damage (Avoided)...........................      203,988
Other Benefits.............................................      416,974
                                                             ...........
    Total..................................................  $31,707,636
------------------------------------------------------------------------
Dollars are discounted at a present value rate of 7 percent. Note that
  numbers may not add due to rounding.

II. Statutory Background

    This final rule is intended specifically to implement Sec. 205 of 
the 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 revised 49 CFR 234.5 and new 49 CFR 
234.301. Sec. 205 of the 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 by which the public is able to notify the railroad by 
toll-free telephone number of safety problems at its highway-rail and 
pathway grade crossings. Such systems are commonly known as Emergency 
Notification Systems (ENS) or ENS programs. This rule is also being 
issued under the authority of a separate statutory provision, 49 U.S.C. 
20103, which 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 the RSIA and 49 U.S.C. 20103 to the 
Administrator of FRA. 49 CFR 1.49(m), (oo). Essentially, Sec. 205 of 
the RSIA imposes a mandate requiring FRA as the Secretary's delegate to 
prescribe regulations or orders imposing the requirements specified in 
that section; this final rule implements that statutory mandate.
    In particular, under Sec. 205 of the RSIA, FRA is to require each 
railroad to ``establish and maintain a toll-free telephone service for 
rights-of-way over which it dispatches trains'' through ``the grade 
crossing of railroad tracks 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 crossing 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 of the final 
rule exceed the requirements specified by the RSIA, 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 and maintain telephonic 
notification systems, the RSIA includes a series of additional 
specifications to be reflected in FRA's regulation. When a railroad 
receives through the ENS a report of a malfunction of a warning signal, 
crossing gate, and/or other device intended to promote safety at a 
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 promptly contact trains operating 
near the grade crossing to warn them of the malfunctioning device or 
disabled vehicle. After contacting the trains, the dispatching railroad 
must contact 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 through the ENS of either 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 a grade crossing through which it 
dispatches a train or a report of another unsafe condition involving 
such a grade crossing, the railroad must timely investigate the report, 
remove the obstruction if lawful and feasible to do so, or correct the 
unsafe condition if lawful and feasible to do so, or, if that railroad 
does not have maintenance responsibility for the crossing, ask the 
maintaining railroad to do so as required by the rule.
    Further, under the RSIA, FRA must require that the owner of the 
track at a grade crossing ``ensure the placement * * * of appropriately 
located signs'' bearing, at a minimum, ``a toll-free telephone number 
to be used 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 for that 
crossing by the'' U.S. DOT National Crossing Inventory (Crossing 
Inventory).

III. History of Accidents Relevant to This Rulemaking

    There are approximately 211,000 public and private at-grade 
highway-rail and pathway crossings (highway-rail and pathway grade 
crossings) in the United States. In other words, the country has 
approximately 211,000 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 in grade 
crossing safety have been achieved over the last two decades, grade 
crossing collisions still pose a significant public safety threat, and 
one that can spiral beyond the immediate impact of the vehicle and 
train. The derailment of a freight train as a result of a collision at 
the grade

[[Page 35167]]

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 
and train crew to the passengers of the train. An example of such an 
accident occurred 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, resulting in 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.
    There are ancillary benefits associated with an ENS beyond its 
primary purpose of facilitating the telephonic reporting of unsafe 
conditions at highway-rail or pathway grade crossings and remedying 
those unsafe conditions. Railroads with an ENS also have received calls 
from the public reporting unsafe conditions in the general vicinity of 
the crossing, but not immediately at the crossing. Although not within 
the scope of this rule, responsive action by the railroads to such 
reports of other types of unsafe conditions often accrue significant 
benefits to the railroad and surrounding community.
    The National Transportation Safety Board (NTSB) issued a report in 
March 2012 of a derailment on the Canadian National Railway Company 
(CN) that illustrates the potential benefit of having an ENS. The 
accident occurred in Cherry Valley, Illinois in 2009. The derailment, 
which resulted in a fatality, several injuries, and the evacuation of 
600 residents, was caused by a washout of track near a highway-rail 
grade crossing, but not at the crossing. Before the derailment 
occurred, several individuals observed high water conditions affecting 
the track. One individual was familiar with the practice of railroads 
posting emergency telephone numbers at grade crossings and attempted to 
locate such a sign. There was no sign posted at the crossing. Several 
calls were placed to the local 911\1\ system to report the washout and 
warn of the potential of a train derailment. The first call was 
received by the 911 center 56 minutes before a train approached, but 
local police only first learned of the situation approximately 20 
minutes after that first call was made to 911. Additionally, several 
critical minutes were lost as the local police attempted to identify 
the railroad that owned the track. The NTSB concluded that ``[h]ad the 
emergency contact information been available, the citizen [i.e., the 
individual who was unable to locate the railroad contact information at 
the Mulford Road crossing] would likely have called the CN instead of 
911, or both. Even though the 911 center was able to identify the 
crossing, it was not until 41 minutes after the initial 911 call that 
the CN Police Emergency Call Center in Montreal was notified of the 
track washout.''
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    \1\ The current 911 system in the United States was designed to 
provide a universal, easy-to-remember number, 9-1-1, for people to 
reach police, fire or emergency medical assistance from any phone in 
any location, without having to look up specific phone numbers.
---------------------------------------------------------------------------

    By the time the information was relayed to the proper railroad 
officials, the train derailed, and several of the cars, carrying 
flammable liquids, erupted in flames. As a result, several motor 
vehicles that had been stopped at the crossing waiting for the train to 
pass were impacted by the incident. One motor vehicle passenger was 
fatally injured; two other passengers in the vehicle were seriously 
injured along with five occupants of another car. The incident also 
resulted in the evacuation of 600 nearby residents. The NTSB concluded 
``that had the required CN grade crossing identification and emergency 
contact information been posted at the Mulford Road crossing, the 
railroad would likely have been notified of the track washout earlier, 
and the additional time may have been sufficient for the [rail traffic 
controllers] to issue instructions to stop the train and prevent the 
accident.'' Derailment of CN Freight Train U70691-18 With Subsequent 
Hazardous Materials Release and Fire, Cherry Valley, Illinois, June 19, 
2009, Railroad Accident Report NTSB/RAR-12/01 (Washington, DC: National 
Transportation Safety Board, February 14, 2012), http://www.ntsb.gov/doclib/reports/2012/RAR1201.pdf.

IV. History of Emergency Notification Systems (ENS)

A. In General

    The existence of an effective system by which a member of the 
public is provided with a telephone number that may be used to alert 
the appropriate railroad promptly to an emergency situation or other 
unsafe condition at a specific, identified highway-rail or pathway 
grade crossing enables the railroad and local public safety officials 
to respond to the crossing hazard earlier than they would otherwise be 
able to do so. Therefore, the railroad is provided with more time to 
take steps to avert an accident at the crossing before it happens or, 
in any event, to mitigate its consequences. Currently, all Class I 
railroads have put in place some sort of means by which they can 
receive prompt telephonic notification from the public of any emergency 
or other unsafe condition at most of their highway-rail grade 
crossings, whereas many regional and short line railroads do not have 
any such kind of notification system in place. The rule requires 
certain railroads to implement such a communication system, which this 
rule also calls an Emergency Notification System or ENS, covering 
public and private highway-rail and pathway grade crossings.

B. Various ENS Programs in the United States

    In 1983, the State of Texas established the first toll-free call-in 
program in the United States that enabled the public to notify a State 
call center by telephone of problems at the State's public highway-rail 
grade crossings equipped with automated warning devices. As the current 
Texas ENS program is organized today, 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 also 
requires that a sign be posted at the highway-rail grade crossing with 
the crossing's unique identifying number from the Crossing Inventory, 
as well as a toll-free telephone number. Texas's call center has a 
dedicated computer with a modified inventory database that facilitates 
the 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

[[Page 35168]]

that under this final 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 rule, as long as the program complies with all the 
conditions specified.
    Following the successful establishment of this ENS program in 
Texas, and in part at the urging of FRA and the NTSB, virtually all of 
the 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 the 
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.
    The 1994 Rail-Highway Crossing Safety Action Plan Support Proposals 
issued by DOT recommended an automated, computer-based system to 
``receive, catalogue and forward telephone calls from the concerned'' 
public regarding signal malfunctions and other safety-related problems 
at highway-rail grade crossings. Rail-Highway Crossing Safety Action 
Plan Support Proposals, 17 (Washington, DC: FRA, June 13, 1994). 
However, the automated system that was envisioned in 1994 was a type of 
automated answering and message forwarding system that relied on the 
caller to enter the required information. Once entered, this 
information would then be forwarded to the appropriate railroad. Unlike 
the automated answering system prescribed in this rule, the caller 
would not have been directed to speak to a live operator. In FRA's 
experience fully automated systems have proven to be unworkable, 
whereas staffed systems have been successful.
    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 pilot projects. Section 
301, ``Emergency Notification of Grade Crossing Problems,'' of Public 
Law 103-440, November 2, 1994 (108 Stat. 4626). Also, in 1996, Congress 
appropriated funds for the development of software and hardware to 
support the demonstration of a toll-free ENS to report emergencies and 
other safety problems at crossings.
    Initially, FRA joined in a cooperative effort with the Texas 
Department of Emergency Management to evaluate the Texas notification 
system. Texas was designated one of the pilot States, and an extensive 
array 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 of the software was modified for use by a ``9-1-
1'' center in Clinton County, Pennsylvania, with the participation of 
eight short line railroads. A 30-month demonstration program was 
initiated in November 2001. See Project Plan: 1-800 Toll-Free Emergency 
Notification System for Shortline Railroad Highway-Rail Crossings in 
the Commonwealth of Pennsylvania (Washington, DC: Federal Railroad 
Administration, September 20, 2000), http://www.fra.dot.gov/downloads/safety/emergency_notification_system.pdf.
    In 2002, an agreement was reached with the Paducah & Louisville 
Railway, Inc. (PAL) to conduct an additional pilot project (the third). 
At the time PAL was a regional railroad with 24-hour operations and 
approximately 400 grade crossings. FRA modified the program software to 
accommodate the railroad's needs.
    As a result of these pilot programs, FRA continued to modify its 
software for use by States and railroads. The software enables the 
timely reporting of emergencies, malfunctions, and other unsafe 
conditions at grade crossings. Call center operators can log the 
reported problem, access the Crossing Inventory files to look up the 
proper crossing number, and notify the correct railroad dispatch center 
and other emergency responders. FRA makes this software freely 
available to railroads and emergency response centers. Furthermore, FRA 
strongly encourages railroads and States with ENS programs to keep 
their crossing inventory information current, as required by Sec. 204 
of the RSIA (codified at 49 U.S.C. 20160 and 21301(a), with respect to 
railroads, and 23 U.S.C. 130, with respect to States). A key component 
of an effective ENS is to be able to correctly and quickly identify the 
crossing number upon receiving a report of an unsafe condition at a 
crossing.

C. FRA's 2006 Report to Congress

    In May 2006, as mandated by Congress in Section 301, ``Emergency 
Notification of Grade Crossing Problems,'' of Public Law 103-440, FRA 
published a report to Congress outlining the development of ENS 
programs (Report). Pilot Programs for Emergency Notification Systems at 
Highway-Rail Grade Crossings, (Washington, DC: Federal Railroad 
Administration, May 2006), 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 ENS programs that they have initiated; (2) 
smaller railroads, including commuter railroads, should work 
cooperatively through The American Short Line and Regional Railroad 
Association (ASLRRA), 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 should 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 to 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.

[[Page 35169]]

V. Section-by-Section Analysis

Section 234.1 Scope

    FRA is expanding this part to include new subpart E, Emergency 
Notification Systems for Telephonic Reporting of Unsafe Conditions at 
Highway-Rail and Pathway Grade Crossings. For this reason, FRA is 
amending the description of the scope of the part, Sec.  234.1, by 
converting it into two paragraphs, dividing the first paragraph into 
four enumerated subparagraphs, and inserting in new Sec.  234.1(a)(4) 
the following reference to new subpart E: ``Requirements that certain 
railroads establish systems for receiving toll-free telephone calls 
reporting various unsafe conditions at highway-rail grade crossings and 
at pathway grade crossings, and for taking certain actions in response 
to those calls.'' Further, for improved readability of the section, FRA 
is designating the last sentence of the current Sec.  234.1 as 
paragraph (b) of revised Sec.  234.1.

Section 234.3 Application and Responsibility for Compliance

    This section is being adopted as proposed in the NPRM, with the 
exception of minor typographical revisions. FRA received public comment 
on this section from three commenters--an individual, the California 
Public Utilities Commission (CPUC), and the ASLRRA.
    The individual commenter noted that even though the NPRM clearly 
stated that proposed part 234, subpart E, requires 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 to 
establish and maintain an ENS,\2\ some small railroads may be confused 
by the language in the rule. The commenter claimed that some small 
railroads may incorrectly interpret the meaning of ``dispatch'' in a 
narrow sense, such as only a railroad that employs an individual in a 
``dispatcher'' position as actually ``dispatching'' trains. In the 
final rule, FRA's definitions in Sec.  234.301 of ``dispatching 
railroad,'' ``dispatches a train or dispatches trains,'' and 
``maintaining railroad,'' and the associated duties and obligations for 
these railroads described in the rule clearly explain which railroads 
are subject to subpart E. Despite the commenter's concerns, railroads 
have the burden of complying with FRA regulations, requiring them to 
carefully read the final rule in its entirety and thoroughly understand 
their duties and obligations as stated in the rule. For this reason, 
FRA sees no need, as the commenter recommended, to contact small 
railroads to inform them of their responsibilities pursuant to this 
final rule.
---------------------------------------------------------------------------

    \2\ E.g., the proposed rule, defined ``[d]ispatching railroad'' 
to mean ``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.'' 76 FR 11992, 12009 (March 4, 
2011).
---------------------------------------------------------------------------

    The CPUC recommended that all public highway-rail grade crossings 
be covered by this rule, to include those through which a ``plant 
railroad'' dispatches trains. In Sec.  234.3(a)(1), a ``plant 
railroad'' is excepted from part 234. CPUC expressed concern that a 
``plant railroad,'' as defined in Sec.  234.5, might dispatch trains 
through a public highway-rail grade crossing, yet still not be required 
by subpart E to establish and maintain an ENS. CPUC may be correct that 
a small number of plant railroads may dispatch trains through public 
highway-rail grade crossings and not be required to establish an ENS 
because a ``plant railroad'' is excepted from part 234. However, FRA 
historically has not regulated plant railroads. By their very nature, 
most plant railroads operate at very low speed, which allows them to 
avoid collisions. Furthermore, the low speed would reduce the severity 
of any collision that does occur. Additionally, since the public 
crossing is actually within the confines of the plant, the owner of the 
crossing would be very evident to any user of the public crossing. 
Consequently, the user of the crossing is better positioned to report 
signal malfunctions, poor sight distance, or other unsafe conditions to 
the plant. Finally, plant railroads would be free to implement their 
own ENS if they choose to do so.
    ASLRRA recommended that the rule not apply to Class II and Class 
III railroads that operate at restricted speed for their primary 
operating practice, in order to relieve those railroads of the rule's 
financial burden. FRA is not in a position to make such an exception 
since the RSIA statutorily mandates that each railroad ``establish and 
maintain a toll-free telephone service for rights-of-way over which it 
dispatches trains.'' However, FRA has carefully considered the various 
monitoring and sign placement costs that the rule imposes on small 
railroads and has made several changes with respect to these costs in 
the final rule to lessen the financial burden. These changes are 
described in more detail in the section-by-section analysis of 
Sec. Sec.  234.303 and 234.311.

Section 234.5 Definitions

    FRA received no public comments related specifically to the 
definitions in this section. This section is being adopted as proposed 
in the NPRM, with the exception of minor typographical and stylistic 
changes, and a new definition. First, FRA is adding clarification to 
the defined term ``Credible report of warning system malfunction,'' by 
also calling it a ``credible report of warning system malfunction at a 
highway-rail grade crossing.'' Second, this section now defines the 
term ``Warning system malfunction'' or ``warning system malfunction at 
a highway-rail grade crossing.'' ``Warning system malfunction'' or 
``warning system malfunction at a highway-rail grade crossing'' means 
an activation failure, a partial activation, or a false activation of a 
highway-rail grade crossing warning system.

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

    As proposed in the NPRM, FRA is amending part 234 by adding new 
subpart E, which includes Sec. Sec.  234.301-234.317. In the final 
rule, FRA is revising the title of the subpart to read--Emergency 
Notification Systems for Telephonic Reporting of Unsafe Conditions at 
Highway-Rail and Pathway Grade Crossings.

Section 234.301 Definitions

    Unless otherwise stated here, FRA is adopting the definitions for 
new subpart E as proposed in the NPRM. FRA received public comments 
regarding several of the proposed definitions in this section. The 
organization Crossing Call recommended that the proposed definition in 
the NPRM of ``Automated answering service'' be amended to permit 
incoming calls to be answered by an initial recorded announcement so 
long as thereafter the call is handled by a live operator. Many of the 
Class I railroads already have similar emergency notification systems 
in place that respond to reports of emergencies and other unsafe 
conditions at crossings in a timely manner and effectively route 
callers to an automated menu of options before reaching a live 
operator. FRA agrees with this recommendation, and is changing the term 
``Automated answering service'' to ``Automated answering system,'' and 
revising the definition, accordingly, to mean a type of answering 
system that directs a telephone caller to a single menu of options, 
where the caller has the choice to select one of the available options 
to report an unsafe condition at a highway-rail or pathway grade 
crossing; and immediately after selecting one of the

[[Page 35170]]

available menu options, the caller must be transferred to a live 
telephone operator.
    Separately, in this final rule, FRA is adding the term ``Answering 
machine,'' which means either a device or a voicemail system that 
allows a telephone caller to leave a recorded message to report an 
unsafe condition at a highway-rail or pathway grade crossing, and the 
railroad is able to retrieve the recorded message either remotely or 
on-site. In this final rule, Sec.  234.303(b) permits the use of an 
answering machine by certain dispatching railroads under certain 
circumstances to receive reports of unsafe conditions at crossings 
through which they dispatch trains. Additionally, Sec.  234.305(h)(2) 
permits a maintaining railroad under certain circumstances to use an 
answering machine to receive from a dispatching railroad reports of 
unsafe conditions at crossings that it maintains.
    In the NPRM, FRA solicited comments with respect to setting a 
maximum amount of time a caller must wait before the call is answered 
by the railroad. FRA received responses from a handful of industry 
associations, two State agencies, and individuals. Advocates for a 
maximum wait time included the Brotherhood of Railroad Signalmen (BRS), 
the CPUC, the Illinois Commerce Commission (ILCC), and the American 
Association for Justice (AAJ), in addition to a few individuals. These 
organizations and individuals recommended that the maximum wait time 
experienced by a caller be between one and two minutes. The AAJ also 
suggested that the railroads have an automated system to inform a 
caller of how long the wait time will be to speak to a live operator. 
However, the Angels on Track Foundation commented that public calls 
reporting unsafe conditions at grade crossings should receive immediate 
attention and that a caller should not experience any waiting time.
    Separately, at the public hearing held by FRA on September 29, 
2011, FRA asked the Association of American Railroads (AAR) to consider 
a standard for the time that it takes for a live operator to answer a 
call concerning a problem at a crossing. AAR submitted supplemental 
comments that address this issue. AAR argued that it is impossible to 
establish a meaningful performance standard for the time that it takes 
to contact a live operator through toll-free numbers posted at 
crossings. Furthermore, AAR stated that calls to railroad telephone 
systems are typically answered ``expeditiously.'' AAR also stated that, 
from the time a caller selects a telephone menu option for 
``emergency'' or ``malfunctioning signal device,'' on average it is no 
more than one minute before a live person answers. Crossing Call 
suggested that if FRA promulgated standards for answering calls, those 
standards should conform to the metrics tracked by answering services 
(e.g., percent of calls answered within a certain time period).
    FRA recognizes that the more promptly a railroad routes a caller to 
a live operator, the sooner the railroad can avert a potential accident 
or remedy a problem at a crossing. FRA encourages all railroads to 
promptly route grade crossing emergency phone calls to a live operator; 
but, at this time, FRA assesses that there is little additional safety 
benefit to be derived from imposing a maximum call wait time in light 
of the final rule's requirements in Sec.  234.303.
    There were two commenters who took issue with the use of the term 
``dispatching railroad.'' The NPRM proposed to define the term to mean, 
``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 Everett Railroad Company recommended that FRA 
apply a narrow meaning to the term so as to make this final rule 
applicable only to rail operations that employ a dispatcher and have 
controlled trackage. FRA disagrees with this recommendation as contrary 
to the statutory mandate for the rulemaking. Section 205 of the RSIA 
states, in part, that

the Secretary of Transportation shall require each railroad carrier 
to--(1) establish and maintain a toll-free telephone service for 
rights of way over which it dispatches trains, to directly receive 
calls reporting--(A) malfunctions of * * * devices to promote safety 
at the grade crossing of railroad tracks on those rights-of-way and 
public or private roads; (B) disabled vehicles blocking railroad 
tracks at such grade crossings; (c) obstructions to the view of a 
pedestrian or a vehicle operator for a reasonable distance in either 
direction of a train's approach; or (d) other safety information 
involving such grade crossings.

    Section 205 of the RSIA does not define the word ``dispatches'' nor 
does it limit the scope of this rule only to those railroads that have 
a position of a dispatcher or have controlled trackage. So in 
developing the final rule, FRA considered the plain meaning of the word 
and the definition of ``dispatches'' in the final rule is consistent 
with this plain meaning. The other commenter noted that smaller 
railroads may be confused by the language in Sec.  234.305(a) of the 
NPRM, and may interpret the language in the narrowest sense, meaning 
that only railroads that ``dispatch'' trains using a dispatcher would 
be considered a ``dispatching railroad,'' and required to comply with 
Part 234. The final rule also defines ``dispatching railroad'' to mean, 
``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 makes clear that this rule applies to 
both railroads that dispatch in the traditional sense, or by other 
means control train movement through highway-rail or pathway grade 
crossings. Furthermore, to clarify the meaning of the use of the verb 
``to dispatch,'' in the final rule, FRA is adding the definition of the 
phrase ``Dispatches a train'' or ``dispatches trains'' to mean 
dispatches or otherwise provides the authority for the movement of the 
train or trains through a highway-rail or pathway grade crossing.
    To properly receive notification of unsafe conditions at grade 
crossings, a railroad or group of railroads is 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. In the final rule, FRA adopted 
the definition of ``Emergency Notification System'' as proposed in the 
NPRM, with the exception of minor typographical and stylistic changes. 
As explained previously in the NPRM, 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 by persons managing or working 
with the already existing ENS programs.
    In the final rule, FRA is adding the term ``farm grade crossing'' 
to explain that farm grade crossings are a subset of highway-rail grade 
crossings that are on private roadways and that are used for the 
movement of farm motor vehicles, farm machinery, or livestock in 
connection with agricultural pursuits, forestry, or other land-
productive purposes. In consideration of public comments on the number 
of signs that would be required at crossings, the final rule in Sec.  
234.311 permits farm grade crossings to have just one ENS sign. This 
revision is discussed more thoroughly in the section-by-section 
analysis of Sec.  234.311.

[[Page 35171]]

    As mentioned previously in the NPRM, the railroad that dispatches a 
train through a highway-rail or pathway grade crossing and the railroad 
that maintains the crossing may not necessarily be the same entity. To 
address this scenario, FRA proposed a definition for ``maintaining 
railroad.'' In response to public comments, FRA is revising the 
definition of ``Maintaining railroad'' to clarify the responsibilities 
of a maintaining railroad and to account not only for an owner of the 
track, but also for a lessee of the track. ``Maintaining railroad'' now 
means the entity (e.g., track owner or lessee) that is responsible for 
maintenance of the highway-rail or pathway grade crossing warning 
device or other aspects of safety maintenance at the crossing. If the 
maintenance responsibility is handled by a contractor, such as 
maintaining a warning system or track structure at the highway-rail or 
pathway grade crossing, then the contractor is considered the 
``maintaining railroad'' for the purposes of this subpart.
    The Kansas City Southern Railway Company (KCS) found the proposed 
definition of ``Pathway grade crossing'' to be unclear and recommended 
that the phrase ``explicitly authorized'' be further explained to 
ensure that FRA's enforcement of the rule is consistent. KCS suggested 
that for a public authority to ``explicitly authorize'' a pathway grade 
crossing that public entity needs to have taken some affirmative act 
that is memorialized in its records. Furthermore, KCS stated that for a 
railroad to have ``explicitly authorized'' a pathway grade crossing, 
there should at a minimum be a written agreement between the railroad 
and some other entity allowing for public use of a pathway across the 
railroad's tracks. KCS argued that ``continued use'' alone is 
insufficient to establish a pathway grade crossing as ``explicitly 
authorized.'' FRA agrees with KCS on this point. Continuous use of a 
pathway grade crossing would constitute only one of several elements of 
either an easement by prescription or by implication. By their very 
nature, neither prescriptive nor implied easements are explicitly 
authorized. In the NPRM, FRA's definition of ``Pathway grade crossing'' 
was taken from Section 2 of the RSIA, which defines ``crossing,'' as 
used in the RSIA, as a location, other than a location where one or 
more railroad tracks cross one or more railroad tracks at-grade, 
where--

    (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.

    After careful consideration of the comment by KCS, FRA decided not 
to revise the proposed definition of ``pathway grade crossing.'' There 
are a number of ways that a pathway could be ``explicitly authorized,'' 
to include but not limited to, by easement stated in a deed, will, or 
other written instrument, by public ordinance, or by written agreement 
with a railroad or a public authority. In other words, there must be a 
clear understanding between the interested parties that the existence 
of the pathway is authorized.
    In the final rule, FRA is adding the term ``Public report of 
warning system malfunction,'' or ``Public report of warning system 
malfunction at a highway-rail grade crossing,'' to distinguish between 
the two types of reports that may be received by a dispatching railroad 
of a warning system malfunction at a highway-rail grade crossing. The 
first type of report, a ``public report of warning system 
malfunction,'' originates from a member of the general public, that is, 
not a railroad employee, law enforcement officer, highway traffic 
official, or other employee of a public agency acting in an official 
capacity. In contrast, a ``credible report of warning system 
malfunction'' is supplied by a railroad employee, law enforcement 
officer, highway traffic official, or other employee of a public agency 
acting in an official capacity. The receipt of a credible report of 
warning system malfunction triggers the duty to comply with subpart C. 
Subpart C does not apply to public reports of warning system 
malfunction.
    In the final rule, FRA is also adding the term ``third-party 
telephone service,'' to describe the use of a third-party service by a 
dispatching or maintaining railroad, pursuant to Sec.  234.307, to 
receive telephonic reports of unsafe conditions at highway-rail and 
pathway grade crossings. This term is described in more detail in the 
section-by-section analysis for Sec.  234.307.
    FRA is also adding the term ``warning system failure at a pathway 
grade crossing'' to mean a failure of an active pathway grade crossing 
warning system to perform as intended. The term would include, but not 
be limited to, such problems as the failure of the device to activate 
as a train approaches the pathway crossing, a false activation of the 
device when no train is approaching the pathway crossing, or a burnt 
out light on the device. This definition is being added to explain the 
term, which appears in Sec.  234.305, Remedial actions in response to 
reports of unsafe conditions at highway-rail and pathway grade 
crossings. Note that a ``warning system failure at a pathway grade 
crossing'' does not trigger the remedial action requirements of subpart 
C. The term ``warning system failure at a pathway grade crossing'' is 
being added to differentiate it from the terms ``warning system 
malfunction'' and ``warning system malfunction at a highway-rail grade 
crossing,'' which describe the various activation failures that may 
occur at a highway-rail grade crossing and that if the subject of a 
credible report of warning system malfunction at a highway-rail grade 
crossing do trigger the remedial action requirements of subpart C.

Section 234.303 Emergency Notification Systems for Telephonic Reporting 
of Unsafe Conditions at Highway-Rail and Pathway Grade Crossings

    Section 234.303(a) requires each railroad that dispatches a train, 
or otherwise provides the authority for the movement of a train, 
through a highway-rail or pathway grade crossing, to set up a system to 
directly and promptly receive telephonic notification of certain unsafe 
conditions at the crossing. In particular, Sec.  234.303(a) requires 
these dispatching railroads to establish and maintain a toll-free 
telephone service by which the railroad can directly receive calls 
reporting any of the unsafe conditions listed in paragraph (c) (with 
respect to highway-rail grade crossings) and paragraph (d) (with 
respect to pathway grade crossings).
    Further, Sec.  234.303(a) specifically requires that the railroad 
either have a live person answer the calls directly and promptly, or 
else use an automated answering system or a third-party telephone 
service for answering the calls, except as provided in paragraph (b).
    One of the comments expressed concern that this rule would conflict 
with the hours of service laws (49 U.S.C. ch. 211). FRA disagrees that 
this rule presents a conflict with the hours of service laws. One of 
the many provisions in the current hours of service laws mandates that 
a railroad dispatching service employee, such as an operator, train 
dispatcher, or any other employee who by use of an electrical or 
mechanical device dispatches, reports, transmits, receives, or delivers 
orders related to or affecting train movements, may not remain or go

[[Page 35172]]

on duty for more than 9 or 12 hours in a 24-hour period, depending on 
the number of shifts employed at the tower, office, station, or place 
that the employee is on duty. (49 U.S.C. 21105). This final rule does 
not stipulate which employees would be assigned to receive and respond 
to emergency notification calls as required by subpart E. It is the 
railroad's responsibility to divide employees' duties in a way that 
would not violate the hours of service laws, and/or hire additional 
employees, if necessary. FRA recognizes that some of the small 
railroads may operate with fewer employees and would have less 
flexibility in scheduling staff to receive and respond to incoming 
calls. To that end, FRA has made several changes in the final rule to 
address such concerns. These changes are discussed in the relevant 
sections that follow.
    Several of the comments that FRA received noted that either local 
law enforcement or 911 systems are capable of handling emergency calls 
for unsafe conditions at grade crossings. FRA disagrees. A system in 
which a telephone call gets routed directly to the dispatching railroad 
is more efficient than one that relies on local law enforcement 
agencies or 911 systems. While some local law enforcement agencies may 
be familiar with the railroad's contact information in the event of an 
emergency, FRA believes that many local law enforcement agencies and 
911 systems lack the knowledge or information to properly notify the 
railroad in these kinds of situations. For example, some local law 
enforcement agencies and 911 systems may incorrectly contact the wrong 
railroad or identify the crossing by its street name rather than the 
Crossing Inventory number. Furthermore, some local law enforcement 
agencies may have neither the capacity nor the capabilities to promptly 
route this information to the dispatching railroad. It is imperative 
for improved crossing safety that the dispatching railroad receives 
precise information so that it can act quickly to take the steps 
necessary to attempt to prevent a collision or other crossing incident 
and any resulting casualties and, in any event, to mitigate their 
severity.
    A dispatching railroad must be able to directly receive calls 
through the toll-free telephone service, unless the railroad is 
permitted to use a non-toll-free number as provided in paragraph (e) of 
this section. ``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. In the NPRM, FRA proposed that only one 
entity may exist between the caller and the railroad. In the final 
rule, ``directly'' does mean that only one entity--a third-party 
telephone service--may be placed between the caller reporting the 
unsafe condition(s) at the grade crossing and the dispatching railroad. 
The rationale for the use of a third-party telephone service is 
addressed further in the discussion of Sec.  234.307. Regardless if an 
additional entity is used, the dispatching 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 such notification. This 
responsibility is placed on the dispatching railroad because it is in 
the best position to immediately contact and warn the affected train 
crew(s) of the reported unsafe condition(s) prior to each train's 
arrival at the crossing to which the report pertains.
    One comment noted that placing signs at private highway-rail grade 
crossings (i.e., a highway-rail grade crossing on a private roadway) 
and pathway grade crossings would not result in a benefit to the 
public. FRA believes that providing a mechanism to report an unsafe 
condition is vital, regardless of the type of crossing. Incidents such 
as a downed tree, or a recreational vehicle hung up on the crossing can 
and do happen at all types of highway-rail and pathway grade crossings, 
both public and private. Furthermore, as FRA stated in the NPRM, the 
frequency with which a highway-rail or pathway grade crossing is used 
does not determine whether it is included in the system established 
pursuant to Sec.  234.303(a). FRA believes that it is important to 
provide an immediate means to communicate a notice of an unsafe 
condition even at such grade crossings traversed infrequently. Imagine, 
for example, the driver of a logging truck stuck at a seldom-used 
private highway-rail grade crossing in the Rocky Mountains with no 
knowledge of what actions to take or whom to contact. FRA agrees that 
some private highway-rail grade crossings, such as farm grade 
crossings, have characteristics that lend themselves to a modification 
of the requirement to have a sign on each approach to the crossing. 
Farm grade crossings are discussed in more detail in the analysis of 
Sec.  234.311.
    In the final rule, FRA is creating a new paragraph (b) in Sec.  
234.303 to provide exceptions to Sec.  234.303(a) that allow certain 
railroads under certain conditions to use an answering machine, as 
defined in Sec.  234.301, to receive reports of unsafe conditions at 
highway-rail and pathway grade crossings through which they dispatch 
trains. The exceptions in Sec.  234.303(b) reduce the economic burden 
placed on smaller railroads, allowing many of these railroads to use an 
existing phone line to receive ENS reports and, thereby avoiding any 
additional expense for a toll-free service.
    Paragraph (b)(1) permits a railroad that dispatches trains each of 
which is authorized to travel through a highway-rail or pathway grade 
crossing at speeds not greater than 20 miles per hour (mph) to use an 
answering machine to receive calls regarding unsafe conditions at the 
crossing. If the railroad uses an answering machine under these 
circumstances, the railroad must retrieve its messages immediately 
prior to the start of its operations for the day to ensure that a 
report of an unsafe condition does not come in after the answering 
machine has been checked, but before the first train of the day 
departs. FRA's rationale for this exception is that at speeds of 20 mph 
or less the train engineer would have a greater ability to stop the 
train in advance of a crossing that has an unsafe condition, and 
thereby have a greater opportunity to avert an accident at the 
crossing, than would a train traveling at higher speeds.
    Paragraph (b)(2) permits a railroad that dispatches one or more 
trains through a highway-rail or pathway grade crossing on a seasonal 
or intermittent basis (e.g., a tourist, biweekly, or non-24-hour 
service), and any of the trains is authorized to travel through the 
crossing at speeds greater than 20mph to use an answering machine, but 
only during hours of non-operation. During periods of non-operation, 
the railroad is required to retrieve its messages once daily. However, 
the railroad must retrieve its messages immediately prior to the start 
of its operations for the day, to ensure that a report of an unsafe 
condition does not come in after the answering machine has been 
checked, but before the first train of the day departs. During hours of 
operation, the railroad must comply with Sec.  234.303(a) by either 
having a live person answer calls directly and promptly, using an 
automated answering system, or employing a third-party telephone 
service to receive reports of unsafe conditions at crossings through 
which it dispatches such trains.
    The four types of unsafe conditions at highway-rail grade crossings 
that are to be reportable through the ENS are set forth in Sec.  
234.303(c). In the final rule, FRA is adopting this paragraph as 
proposed in the NPRM, with the exception of typographical and stylistic

[[Page 35173]]

changes. The first type of reportable unsafe condition at a highway-
rail grade crossing is a warning system malfunction at the crossing.
    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 the train 
crew(s) prior to each train's arrival at the crossing, thus potentially 
averting a collision and any resulting casualties. Other obstructions, 
aside from a disabled vehicle, also 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 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 
the RSIA, the second category of unsafe conditions is a disabled 
vehicle blocking the tracks at a grade crossing. To the extent that 
FRA's final rule requires more than Sec. 205 of the 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)). Section 
234.303(c)(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. In the 
NPRM, FRA solicited comments 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. Amtrak in 
its comments noted that the regulation does not define ``reasonable 
distance,'' which depends on the particular facts of the situation and 
makes it a very subjective standard. AAR remarked that there can be 
legitimate disagreements over whether an obstruction even poses an 
unsafe condition. The AAJ commented that no one sight distance should 
apply to all crossings, and thus, all reports of sight distance 
obstruction should be investigated. Several of the comments, including 
AAJ suggested using the Federal Highway Administration's Railroad-
Highway Grade Crossing Handbook to determine appropriate minimum sight 
distances. After careful consideration, FRA is not qualifying the 
meaning of ``reasonable'' in this final rule. Since a crossing user is 
unlikely to have knowledge of this specific FRA regulation, the 
individual will report an unsafe condition based on their personal 
judgment and perspective of the situation, and the particular 
conditions at the crossing at the time. What actions, if any, the 
railroad must take in response to such reports is discussed in Sec.  
234.305.
    The final type of reportable unsafe condition at a highway-rail 
grade crossing is described in Sec.  234.303(c)(4) as any condition at 
the crossing that may be considered unsafe and is not covered by Sec.  
234.303(c)(1)-(3). This catch-all provision is intended to provide the 
public with the opportunity to report other types of unsafe conditions 
that are not covered by Sec.  234.303(c)(1)-(3). In the NPRM, FRA 
explained that 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. The CPUC in its comments 
provided a few other examples of unsafe conditions that do not fall 
into one of the three other categories, such as ``rough pavement or 
broken track paneling.'' These are merely some examples of the various 
conditions that may be considered unsafe under this catch-all 
provision.
    The four types of reportable unsafe conditions at pathway grade 
crossings as opposed to highway-rail grade crossings are set forth in 
Sec.  234.303(d). In the final rule, FRA is adopting this paragraph as 
proposed in the NPRM, with the exception of typographical and stylistic 
changes. The 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 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. Section 234.303(c)(1) does not use the 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. In the final rule, FRA does not establish 
specific standards regarding the maintenance and repair of active 
warning systems at pathway grade crossings. However, the final rule 
does require a railroad to provide the public with a means to report 
when the active warning system at a pathway grade crossing through 
which it dispatches a train 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 Sec.  
234.303(d)(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. The term includes, but is not 
limited to, such problems as the failure of the device to activate as a 
train approaches the pathway crossing, a false activation of the device 
when no train is approaching the pathway crossing, or a burnt out light 
on the device. Although FRA solicited comments 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, there were no public comments received on this issue. 
Additionally, FRA sought comments regarding how the maintenance and 
repair of an active warning system at a pathway grade

[[Page 35174]]

crossing differ from the required maintenance and repair of an active 
warning system at a highway-rail grade crossing. The ILCC replied that 
there should be no difference in the testing, maintenance, and repair 
of an active warning system whether it be at a highway-rail grade 
crossing or a pathway grade crossing. In fact, FRA notes that pathway 
grade crossing warning systems typically have different designs than 
those of traditional grade crossing warning systems.
    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 Sec.  234.303(d)(2), though it is used in Sec.  234.303(c)(2), 
because, as defined in 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(d)(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 above of Sec.  234.303(c)(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(d)(1)-(3). See discussion above of 
Sec.  234.303(c)(4).
    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. Yet, 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 adopts Sec.  234.303(e) in this final rule (as 
proposed in the NPRM), which states that if a railroad classified by 
the Surface Transportation Board (STB) as a Class II or Class III rail 
carrier dispatches trains within an area in which the use of a non-
toll-free number would incur no additional fees for the caller than if 
a toll-free number were 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.
    FRA adopts as paragraph (f) in this section, the text proposed as 
paragraph (e) of Sec.  234.303 in the NPRM. Paragraph (f) provides 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 Sec.  
234.303(a), then subpart E does not apply to the report. Subpart E only 
sets forth the requirements for the establishment and use of an ENS 
within the meaning of subpart E, and the response to a report of an 
unsafe condition received through a required ENS. A report that is not 
received through a required ENS falls outside the scope of the 
requirements of subpart E and, therefore, does not trigger the duty to 
comply with the requirements of subpart E.

Section 234.305 Remedial Actions in Response to Reports of Unsafe 
Conditions at Highway-Rail and Pathway Grade Crossings

    Section 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. In the final rule, FRA adopts 
the majority of this section as proposed in the NPRM. Specific changes 
that were made in the final rule are explained in detail below.
    In response to the NPRM, the AAR commented that the words 
``promptly'' and ``immediately'' are used in an inconsistent manner 
throughout the proposed section with respect to the railroad's response 
to reports of unsafe conditions at highway-rail and pathway grade 
crossings. The term ``promptly'' is already used in subpart C, so in 
the final rule, where it was appropriate, FRA replaced ``immediately'' 
with ``promptly'' to correspond with subpart C.
    Additionally, AAR recommended that FRA amend the language proposed 
in the NPRM, requiring a railroad to ``immediately contact all trains 
that are authorized to operate through the highway-rail grade crossing 
[or pathway grade crossing] and warn the trains of the reported 
malfunction [or failure].'' AAR suggested incorporating the phrase 
``prior to the trains' arrival at the crossing,'' which is similar to 
language already used in subpart C, Sec.  234.105 and Sec.  234.107. To 
remain consistent with current regulations and to enhance clarity in 
this final rule, FRA is changing the text from that proposed in the 
NPRM to require in the final rule that a railroad promptly contact all 
trains that are authorized to operate through the highway-rail or 
pathway grade crossing, in an effort to notify the train crews of the 
reported malfunction or failure prior to each train's arrival at the 
crossing.
    Paragraph (a) of this section is the general rule on response to 
ENS-generated credible reports of warning system malfunctions at 
highway-rail grade crossings. 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 action required by subpart C. As defined in Sec.  234.5, a 
``credible report of warning system malfunction'' is ``a report that 
contains specific information regarding a malfunction of a highway-rail 
grade crossing warning system 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 warning system malfunction 
within the meaning of either subpart C or subpart E, and subpart C does 
not require any remedial action in response to those reports. It should 
be noted that the term ``credible report of warning system 
malfunction'' only applies to highway-rail grade crossings and does not 
include pathway grade crossings. Thus, for these technical reasons, 
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 either subpart C or 
subpart E.
    Several of the comments that FRA received in response to the NPRM 
indicated that FRA's use of the term ``credible report of a warning 
system malfunction'' may need some clarification. The term, as used in 
part 234, is simply a technical term. ``Credible report of warning 
system malfunction'' refers to reports of signal malfunctions by a 
specific class of public officials and railroad personnel acting in an 
official capacity. These regulations have been in existence for many 
years. The use of the word ``credible'' in that term does not go to the 
accuracy or truthfulness of the report; rather, the term simply denotes 
the type of report the receipt of which is the precondition that 
triggers the duty

[[Page 35175]]

for a railroad to perform certain actions, pursuant to subpart C. In 
other words, when a credible report of warning system malfunction at a 
highway-rail grade crossing is received from one of the four specific 
types of people listed, as opposed to reports received from a member of 
the general public, the railroad having maintenance responsibility for 
the warning system must promptly take the actions prescribed by subpart 
C. Just because a report originates from a member of the general public 
and, therefore, is not classified as a ``credible report of warning 
system malfunction'' as defined by Sec.  234.5, does not mean that the 
report is any less accurate or truthful.
    In consideration of the many comments received on this issue, FRA 
decided in the final rule to refrain from the use of the phrase ``not a 
credible report,'' so as not, however inadvertently, to disparage or 
undermine the legitimacy of reports that originate from the general 
public. Instead, FRA created the new, defined term, ``public report of 
warning system malfunction at a highway-rail grade crossing,'' which 
means a report that contains specific information regarding a warning 
system malfunction at a highway-rail grade crossing that is supplied to 
a railroad via the ENS by a member of the public who does not belong to 
one of the categories of individuals listed in the definition of 
``Credible report of warning system malfunction'' in Sec.  234.5. In 
other words, public report of warning system malfunction means a report 
that contains specific information regarding a warning system 
malfunction at a highway-rail grade crossing that is supplied to a 
railroad via the ENS 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. The term ``public report 
of warning system malfunction at a highway-rail grade crossing'' only 
applies to warning system malfunctions that occur at highway-rail grade 
crossings. If a report is neither a ``credible report of warning system 
malfunction at a highway-rail grade crossing'' nor a ``public report of 
warning system malfunction at a highway-rail grade crossing,'' then it 
is just referred to in the final rule as a ``report'' of another type 
of unsafe condition, e.g., ``report of warning system failure at a 
pathway grade crossing.''
    Paragraph (a) of Sec.  234.305 explains that 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 some 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, Sec.  234.305(a)(2) requires the railroad with 
maintenance responsibility to take the appropriate remedial action 
under subpart C, except for promptly contacting the trains operating 
through the crossing and the law enforcement agency with jurisdiction 
for the crossing; these responsibilities remain with the dispatching 
railroad.
    Paragraph (b) of Sec.  234.305 is the general rule on response to 
an ENS-generated public report of a warning system malfunction at a 
highway-rail grade crossing, and requires that railroads take certain 
specified remedial action in response to such a report. In other words, 
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 such a public report of a warning system malfunction 
and that railroad has maintenance responsibility for the warning system 
at the crossing, the railroad must promptly contact all trains that are 
authorized to operate through the grade crossing about which the report 
pertains, in an effort to notify the train crews of the reported 
malfunction prior to each train's arrival at the crossing. 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 public report of a warning system 
malfunction and that railroad does not have maintenance responsibility 
for the warning system at the highway-rail grade crossing, the railroad 
must promptly contact the train crews of all trains that are authorized 
to operate through the grade crossing to which the report pertains, in 
an effort to notify the train crews of the reported malfunction prior 
to each train's arrival at the crossing. The railroad must then 
promptly contact the law enforcement agency that has jurisdiction over 
the 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 49 CFR 234.207(a) if 
necessary.
    Paragraph (c) of Sec.  234.305 is the general rule on response to a 
report of a warning system failure at a pathway grade crossing. If the 
dispatching railroad for the pathway crossing 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 promptly contact all trains that are 
authorized to operate through the pathway grade crossings to which the 
report pertains, in an effort to notify the train crews of the reported 
failure prior to each train's arrival at the crossing. 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 then promptly investigate

[[Page 35176]]

the report, determine the nature of the reported failure, and without 
undue delay repair the active 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 promptly contact 
all trains that are authorized to operate through the pathway grade 
crossing to which the report pertains, in an effort to notify the train 
crews of the reported failure prior to each train's arrival at the 
crossing. 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, determine 
the nature of the reported failure, and without undue delay repair the 
warning system if necessary.
    Paragraph (d) of Sec.  234.305 is the general rule on response to a 
report of a disabled vehicle or other obstruction blocking a railroad 
track at a highway-rail or pathway grade crossing, pursuant to Sec.  
234.303(c)(3) or (d)(2), respectively. If the dispatching railroad 
receives a report of a disabled vehicle or obstruction blocking a 
railroad track at a grade crossing, and that railroad also has 
maintenance responsibility for the crossing, the railroad must promptly 
contact all trains that are authorized to operate through the grade 
crossing to which the report pertains, in an effort to notify the train 
crews of the reported disabled vehicle or obstruction prior to each 
train's arrival at the crossing. 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 to carry out 
other activities to maintain safety at the crossing. In the NPRM, FRA 
solicited comments on whether to require the railroad that receives the 
report (i.e., dispatching railroad) to contact the maintaining railroad 
if the obstruction is anything other than a disabled vehicle, stating 
that ``[t]he 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.'' AAR 
commented that the obstruction could be something beyond the power of 
the maintaining railroad to address and that requiring the maintaining 
railroad to be notified in such circumstances serves no purpose. FRA 
disagrees. In the final rule, paragraph (d)(2) of this section requires 
that, if the dispatching and maintaining railroad are not the same 
entity, after the dispatching railroad promptly contacts the 
appropriate trains and law enforcement agency, it must then promptly 
contact the maintaining railroad to inform it of the obstruction 
blocking the track. FRA has determined that the quickest way to contact 
the law enforcement agency is to have the dispatching railroad make the 
contact. Because the obstruction is blocking the railroad track it has 
to be removed in order for train operations to be resumed, and this 
action is the responsibility of the maintaining railroad. Once informed 
of the obstruction, the maintaining railroad shall then promptly 
investigate the report, determine the nature of the obstruction, and 
without undue delay take the necessary action to have the obstruction 
removed.
    Paragraph (e) of Sec.  234.305 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. 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 a speed 
greater than 25 miles per hour. See 63 FR 47188 (Sept. 4, 1998); Sec.  
220.9(b)(1)-(4). However, in subpart E, upon receipt of a credible 
report of warning system malfunction at a highway-rail grade crossing, 
a public report of warning system malfunction at a highway-rail grade 
crossing, a report of warning system failure at a pathway grade 
crossing, or a report of disabled vehicle or other obstruction blocking 
a track, a railroad will be required to promptly contact all trains 
authorized to operate through the highway-rail or pathway grade 
crossing to which the report pertains, to notify the train crews of the 
reported unsafe condition prior to each train's arrival at the 
crossing. 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) to immediately report certain emergencies by the 
quickest means available. To maintain consistency among FRA 
regulations, Sec.  234.305(e) requires that the quickest means used to 
contact a train upon receipt of a report of a warning system 
malfunction, warning system failure, 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).
    Paragraph (f) of Sec.  234.305 is the general rule on response to a 
report 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 (i.e., visual 
obstruction). 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 remove the visual obstruction if it 
is lawful and feasible 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 remove the 
visual obstruction, if it is lawful and feasible to do so. FRA 
recognizes that in certain instances it may not be possible to remove a 
visual obstruction, 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, Sec.  234.305(f) imposes a duty on the maintaining 
railroad to remove the visual obstruction only if it is lawful and 
feasible to do so.
    In the NPRM, FRA solicited comments on what types of visual 
obstructions are not feasible to remove. AAR responded that ``not all 
obstructions are within the control of the railroads and can be 
cleared.'' Other commenters expressed similar concerns, to include the 
ILCC, which cited topographical features, appurtenances, and structures 
required by local conditions, such as retaining walls, and drainage 
structures, as types of obstructions that may not be feasible for the 
railroad to correct or remove. FRA recognizes that not all obstructions 
to view are feasible to correct, or within the legal right of the 
railroad to do so.

[[Page 35177]]

Additionally, some commenters noted that the use of the words 
``obstruction'' and ``feasible'' are vague concepts. FRA intentionally 
chose to use such ambiguous terms. Individuals who use a crossing may 
have varying degrees of perspective on what constitutes an unsafe 
obstruction. Furthermore, it is the responsibility of the railroad, 
once a report of this type is received, to investigate and make its own 
determination as to whether it is lawful and feasible to correct the 
situation. Additionally, the ILCC urged FRA to refrain from 
categorically excluding certain types of reports of visual obstructions 
from the reports that a railroad would be required to investigate. FRA 
agreed with the ILCC's suggestion, and the final rule does not limit 
the types of obstructions to view that a railroad would be required to 
investigate and correct, if lawful and feasible to do so.
    Paragraph (g) of Sec.  234.305 is the general rule on response to a 
report of other unsafe conditions at a highway-rail or pathway grade 
crossing. In the final rule, FRA combined proposed (g)(1) and (g)(2) 
into one paragraph. If the dispatching railroad receives a report 
related to a safety device at a highway-rail or pathway grade crossing, 
such as a downed crossbuck or other similar grade crossing device, or a 
report of any other unsafe condition, such as a pothole in the 
crossing, that is not covered by paragraphs (a), (b), or (c) of this 
section, and the railroad has maintenance responsibility for the 
crossing, the railroad must timely investigate the report, and if the 
railroad finds that the unsafe condition exists, the railroad must 
timely correct it if it is lawful and feasible to do so. However, if 
the dispatching railroad that receives the report does not also have 
maintenance responsibility for the crossing, upon receipt of the 
report, the railroad must timely inform the maintaining railroad of the 
reported unsafe condition. The maintaining railroad 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. In the NPRM, FRA solicited comments on what types of other unsafe 
conditions are not feasible to correct. AAR noted that the failure of 
nearby highway signals to properly coordinate timing with crossing 
signals may not be feasible to correct. FRA agrees that improperly 
programmed highway signals are beyond the ability of the railroad to 
correct. However, when such hazards are reported to the railroad, the 
railroad is encouraged to report the condition to the appropriate 
highway authority.
    In the final rule, FRA clarifies the purpose of paragraph (h), by 
renaming it the general rule on a maintaining railroad's 
responsibilities for receiving reports of unsafe conditions at highway-
rail and pathway grade crossings. 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 timely contact the maintaining 
railroad upon receipt of a report, as required. Furthermore, to receive 
calls from the dispatching railroad of reports of unsafe conditions, 
the maintaining railroad must have either a live person answer calls 
directly and promptly, or use an automated answering system, unless it 
is permitted by the exceptions in Sec.  234.305(h)(2) to use an 
answering machine or a third-party telephone service. If a maintaining 
railroad uses a third-party telephone service it must do so in 
accordance with Sec.  234.307. The exceptions in paragraph (h)(2) of 
this section provide, in particular, smaller maintaining railroads a 
less costly option for receiving telephonic reports of unsafe 
conditions from dispatching railroads. These exceptions are similar to 
those extended to dispatching railroads in Sec.  234.303(b).

Section 234.306 Multiple Dispatching or Maintaining Railroads With 
Respect to the Same Highway-Rail or Pathway Grade Crossing; Appointment 
of Responsible Railroad

    In the NPRM, under the section-by-section analysis for Sec. Sec.  
234.303 and 234.311, FRA solicited comments on how to handle a highway-
rail or pathway grade crossing where there are multiple railroads 
dispatching trains on one or more tracks through the crossing, and 
possibly, multiple maintaining railroads each responsible for various 
maintenance responsibilities at the same crossing.
    FRA recognizes that there are some situations where there are 
multiple tracks at a grade crossing where each railroad dispatches 
trains over its own track. Under these circumstances, FRA believes it 
would create confusion if each railroad posts a sign with its own 
emergency telephone number. Having more than one emergency number 
posted at such crossings would not only be more confusing for the users 
of the crossing and an unnecessary cost for the multiple railroads, but 
also a less effective method of responding to reports of unsafe 
conditions.
    AAR and CPUC suggested that under circumstances where there are 
multiple railroads that dispatch trains through the same crossing, the 
railroads should coordinate among themselves to delineate their 
individual responsibilities. AAR also stated that in such situations 
the railroads should ``make arrangements as to whose telephone number 
will be displayed on the sign.'' FRA agrees that one point of contact 
for the crossing is the most efficient and safest means to address a 
situation where multiple railroads dispatch trains through the same 
crossing.
    Separately, AAR also suggested that FRA include in its Crossing 
Inventory database an indicator of where multiple railroads dispatch 
through the same crossing. FRA will not be doing this since it is 
outside of the scope of this rule. The recommendation by AAR does not 
enhance the effectiveness of the rule.
    In this final rule, FRA is creating Sec.  234.306 to address the 
situation of multiple railroads that dispatch trains through the same 
crossing, and the possibility that multiple railroads have maintenance 
responsibilities for the same crossing. FRA notes that with respect to 
the requirements of this section, the railroads are free to work out a 
cost-sharing agreement among themselves.
    Paragraph (a) of Sec.  234.306 requires that where multiple 
railroads dispatch trains through the same crossing, the railroads must 
appoint one of their number to be the primary dispatching railroad for 
the crossing and, as such, to receive reports of unsafe conditions 
pursuant to Sec.  234.303. The emergency phone number of the primary 
dispatching railroad for the crossing shall be displayed on the ENS 
sign(s) at the crossing. Furthermore, when the primary dispatching 
railroad receives a report of an unsafe condition at the crossing, it 
is responsible for promptly contacting all the other railroads that 
dispatch trains through the crossing to notify them of the report. Each 
of these other dispatching railroads to which the report pertains must 
carry out the appropriate remedial action as required by Sec.  234.305 
and recordkeeping as required by Sec.  234.313.
    The primary dispatching railroad for the crossing is also 
responsible for notifying each railroad that has maintenance 
responsibility for the crossing of a reported unsafe condition, if the 
maintaining railroad is a different entity from the dispatching 
railroad already contacted. Finally, in response to reports of unsafe 
conditions, the primary dispatching railroad, as a railroad that also 
dispatches trains through the crossing, must otherwise

[[Page 35178]]

carry out its own duties as a dispatching railroad under this subpart.
    Paragraph (b) of this section, similarly requires that if there is 
more than one maintaining railroad for the same crossing, the 
maintaining railroads must appoint one of their number to be 
responsible for placing and maintaining the ENS sign(s) at the crossing 
as required by Sec. Sec.  234.309 and 234.311. The railroad appointed 
under this paragraph must post the emergency telephone number of the 
dispatching railroad, or if applicable, that of the primary dispatching 
railroad, for the crossing on the ENS sign(s) at the crossing. 
Additionally, after receiving a report of an unsafe condition at the 
crossing from the dispatching railroad, each of the maintaining 
railroads to which the report pertains must carry out the appropriate 
remedial action as required by Sec.  234.305 and recordkeeping as 
required by Sec.  234.313.
    Where there are multiple maintaining railroads for a crossing, 
paragraph (c) of this section imposes a duty on a dispatching railroad, 
or if applicable, the primary dispatching railroad, to promptly contact 
and inform the appropriate maintaining railroad(s) of a reported 
problem at that crossing. After being informed of a report of an unsafe 
condition that pertains to the maintaining railroad's maintenance 
responsibilities for the crossing, the railroad must carry out the 
appropriate remedial action as required by Sec.  234.305 and 
recordkeeping as required by Sec.  234.313.

Section 234.307 Use of Third-Party Telephone Service by Dispatching and 
Maintaining Railroads

    Section 234.307 addresses the option for a dispatching railroad to 
use a third-party telephone service to receive reports concerning an 
unsafe condition at a highway-rail or pathway grade crossing pursuant 
to Sec.  234.303. This section also describes the duties of maintaining 
railroads with respect to their use of a third-party telephone service 
as permitted by Sec.  234.305(h)(2).
    In response to the NPRM, the Angels on Track Foundation objected to 
the use of a third-party telephone service, asserting that it would 
compromise safety because railroads would not be receiving calls 
``directly.'' FRA does not believe that this method of receiving 
reports of unsafe conditions at highway-rail and pathway grade 
crossings would compromise safety. All of the Class I railroads 
currently have telephone systems in place by which they receive reports 
of unsafe conditions at highway-rail and pathway grade crossings. As a 
result, Class I railroads are unlikely to employ a third-party 
telephone service. Permitting the use of a third-party telephone 
service provides smaller railroads with a more economical and less 
burdensome option, without compromising safety. As previously stated in 
the NPRM, 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 receive and respond to reports of unsafe conditions at 
highway-rail and pathway grade crossings. Indeed, requiring such a 
system could divert limited resources from more vital safety projects. 
The results of the pilot project that FRA conducted with eight short 
line railroads in Pennsylvania from October 15, 2001 through May 31, 
2003, proved to be extremely successful and demonstrated that a third-
party telephone service is a reasonable approach when considered from 
both a safety and economic perspective.
    In the NPRM, FRA stated that for a railroad to ``directly'' receive 
calls reporting unsafe conditions at a crossing as required by Sec.  
234.303, one entity should be 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. On review of Sec.  234.307, 
the BRS suggested in its comments that FRA revise Sec.  234.307 to 
ensure that the third-party telephone service is the only entity 
allowed between a caller reporting an unsafe condition at a grade 
crossing and the railroad. In the final rule, FRA created a defined 
term for ``third-party telephone service'' in Sec.  234.301, which 
stipulates that the third-party telephone service is the only entity 
between a caller who is reporting an unsafe condition at a highway-rail 
or pathway grade crossing and the transmission of the report to the 
dispatching railroad. The definition also stipulates that a third-party 
telephone service that receives reports from a dispatching railroad, on 
behalf of a maintaining railroad, is the only entity between the 
receipt of the report and the transmission of the report to the 
maintaining railroad. FRA also revised the language in Sec.  234.307 to 
permit the third-party telephone service to utilize an automated 
answering system, as defined in Sec.  234.301, to receive reports of 
unsafe conditions at highway-rail or pathway grade crossings.
    Paragraphs (a) and (b) of Sec.  234.307 permit a dispatching 
railroad and a maintaining railroad to use a third-party telephone 
service to receive reports pursuant to Sec. Sec.  234.303 and 
234.305(h)(2), respectively. FRA believes that it may be 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 or from 
dispatching railroads because that is the third party telephone 
service's specialty. However, even if the railroad uses a third-party 
telephone service, the railroad ultimately remains responsible for 
receiving the report initially received by the third party telephone 
service, and the railroad is responsible for taking the appropriate 
remedial action as required by Sec.  234.305 and complying with the 
proper recordkeeping requirements in Sec.  234.313. The third-party 
telephone service is merely an extension of the railroad.
    In response to the NPRM, several commenters suggested that the 
third-party telephone service should perform the function of notifying 
the train crews and public safety officials when it receives reports of 
unsafe conditions at highway-rail and pathway grade crossings, 
asserting that this would result in faster transmission of the 
information to the appropriate parties. FRA disagrees. The dispatching 
railroad is the only entity that has the authority to control train 
movements through a crossing, and the dispatching railroad is the only 
entity with the practical ability to notify train crews in the event of 
an emergency or any other unsafe condition. Police do not dispatch or 
otherwise authorize movement of trains. One of the only means available 
to the police to warn a train of an emergency would be to flag the 
train down with the use of fusees, which in most cases is neither 
efficient nor practical when compared to the railroad's ability to 
notify its train crews. Furthermore, to allow the third-party telephone 
service to directly communicate with train crews, as some commenters 
suggested, would in effect alter train movements and create a conflict 
with other train movements being controlled by the dispatching 
railroad. Third-party telephone services do not have the knowledge, 
training, or authority to control train movements.
    With respect to dispatching railroads, the role of the third-party 
telephone service is intended to be limited to receiving calls from the 
public of an unsafe condition, recording the information, and relaying 
that information to the dispatching railroad that has contracted for 
the third-party

[[Page 35179]]

telephone service. As previously stated, the railroad then is required 
to take the appropriate action as prescribed in the rule, to include, 
if applicable, contacting the train crews, the local public safety 
officials, and the maintaining railroad (if the maintaining railroad is 
a separate entity from the dispatching railroad) depending on the 
nature of the report. Similarly, with respect to maintaining railroads, 
the role of the third-party telephone service is intended to be limited 
to receiving calls from the dispatching railroad of an unsafe 
condition, recording the information, and relaying that information to 
the maintaining railroad that has contracted for the third-party 
telephone service.
    Paragraph (a) also requires that the third-party telephone service 
is reached directly and promptly by the telephone number displayed on 
the sign pursuant to Sec.  234.309. In the final rule, FRA decided to 
permit the third-party telephone service to receive calls using an 
automated answering system, as defined in Sec.  234.301, which has a 
single menu of options for a caller to select to report an unsafe 
condition at a crossing immediately prior to the caller being 
transferred to a live person.
    Paragraph (c) sets forth the duties of the third-party telephone 
service. The third-party telephone service is required to contact the 
railroad immediately when it receives a report pursuant to Sec. Sec.  
234.303 or 234.305. The third-party telephone service must then provide 
the railroad with a minimum amount of information. First, the third-
party telephone service must provide the nature of the reported unsafe 
condition. The nature of the reported unsafe condition must fall into 
one of the categories listed in Sec.  234.303(c)(1)-(4) or (d)(1)-(4) 
so that the dispatching railroad can take the appropriate remedial 
action as required by Sec.  234.305. Second, the third-party telephone 
service must provide information on the location of the unsafe 
condition, which includes providing the Crossing Inventory number for 
the crossing. Third, the third-party telephone service must inform the 
railroad whether or not 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 telephone service is required to provide this 
information so that the dispatching railroad can determine whether the 
report is a credible report of warning system malfunction and, if it 
is, the railroad must take the appropriate remedial action required by 
Sec.  234.305 and existing subpart C. Additionally, the third-party 
telephone service must provide the railroad with the date and time that 
the report was received by the third-party telephone service--this 
requirement was added to the final rule and is consistent with the 
recordkeeping duties in Sec.  234.313. Finally, the third-party 
telephone service must provide the railroad with any additional 
information provided by the caller that may be useful to restore the 
crossing to a safe condition.
    Paragraph (d) requires a railroad that uses a third-party telephone 
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. 
In the final rule, FRA requires the railroad to have a live person 
answer calls directly from the third-party telephone service, unless 
the railroad is permitted pursuant to either Sec.  234.303(b) or Sec.  
234.305(h)(2) to use an answering machine. 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 
telephone service must be sufficient to the extent that when the third-
party telephone service contacts the railroad, a railroad employee 
answers the call and takes the appropriate action necessary under Sec.  
234.305. The responsibility of the third-party telephone 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.
    Paragraph (d) also requires a railroad to inform FRA in writing of 
its intent to use a third-party telephone service to receive reports 
before the implementation of such a service. The railroad must also 
provide FRA with the contact information of the third-party telephone 
service that the railroad intends to use. Further, the railroad must 
provide FRA with a list identifying the grade crossings about which the 
third-party service will be receiving reports. In the final rule, FRA 
is adding a requirement that the railroad must inform FRA in writing 
within 30 days following any changes in the use or discontinuance of a 
third-party telephone service. All of this information that the 
railroad provides to FRA will allow FRA to evaluate the impact that the 
use of a third-party telephone service has on a railroad's ability to 
comply with the provisions of this subpart. Finally, paragraph (d) 
reaffirms the requirement that once a railroad receives a report of an 
unsafe condition at a grade crossing, the railroad must take the 
remedial action required by Sec.  234.305.
    In response to the NPRM, the organization Crossing Call commented 
that proposed Sec.  234.307(d) put an undue burden on the third-party 
telephone service by requiring it to comply with all of subpart E 
because proposed paragraph (d) stated that ``A third-party service is 
responsible for complying with this subpart.'' FRA did not intend to 
hold a third-party telephone service responsible for compliance with 
all of subpart E. Accordingly, in the final rule, FRA in paragraph (e) 
of this section, clarifies that the third-party telephone service is 
responsible only for carrying out the duties of Sec.  234.307, in 
addition to the recordkeeping duties under Sec.  234.313, and, if 
applicable, Sec.  234.315. Furthermore, the railroad is responsible for 
any acts or omissions of the third-party telephone service under the 
contract that violate these specified sections of 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 the opportunity to 
review any such technologies that meet the requirements of the 
regulation.

Section 234.309 ENS Signs in General

    Section 234.309 specifies the color, minimum content and size 
requirements, 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 
displayed on the sign so that the unsafe condition may be properly 
reported and remedied. Paragraph (a) of this section requires that if 
the dispatching railroad and the maintaining railroad(s) are not the 
same entity, the dispatching railroad for the crossing must provide to 
the maintaining railroad the telephone number that is to be displayed 
on the ENS sign at the crossing, not later than 180 calendar days 
before the implementation of an ENS is required. In this final rule, 
FRA is increasing the amount of time from 30 days as proposed to 180 
days to provide the maintaining railroad with sufficient time to notify 
the sign manufacturer of the phone number to be displayed on the signs, 
to allow for the production of the signs, and then for the installation

[[Page 35180]]

of the signs at the crossings by the maintaining railroad.
    Paragraph (b) describes the minimum information that is to be 
displayed on an ENS sign, which includes the following: 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(e)); an 
explanation of the purpose of the sign (e.g., ``Report emergency or 
problem to ------------''); and the U.S. DOT National Crossing 
Inventory 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 
them, paragraph (c) requires the signs to meet the following 
requirements: measure at least 12 inches wide by 9 inches high; be 
retroreflective; have legible text, i.e., lettering and numerals, with 
a minimum character height of 1 inch for the information required in 
paragraph (b) of this section; and the sign must have white text set on 
a blue background with a white border, except that the Crossing 
Inventory number may be black text set on a white rectangular 
background.
    In the NPRM, FRA solicited comments regarding which standards and 
guidance provided in the FHWA's MUTCD or Standard Highway Signs and 
Markings book (SHSM) should be adopted in the final rule as the 
requirements for the signs placed at crossings pursuant to Sec. Sec.  
234.309 and 234.311. The majority of commenters supported using the 
MUTCD as the standard sign design.
    The MUTCD defines the standards used by road managers nationwide to 
install and maintain traffic control devices on all public streets, 
highways, and bikeways, and on private roads open to public traffic. 
The MUTCD is approved by the FHWA and recognized as the national 
standard for traffic control on all public roads. It is incorporated by 
reference into the Code of Federal Regulations at 23 CFR part 655.
    MUTCD specifications include the shapes, colors, and fonts used in 
road markings and signs. In the United States, all traffic control 
devices must generally conform to these standards. The manual is used 
by State and local agencies as well as private construction firms to 
ensure that the traffic control devices they use conform to the 
national standard. While some State agencies have developed their own 
sets of standards, including their own MUTCDs, these must substantially 
conform to the Federal MUTCD.
    Section 8B.18 of the MUTCD \3\ provides both guidance and a 
technical standard for emergency notification signs. Specifically, the 
guidance states that--
---------------------------------------------------------------------------

    \3\ Manual on Uniform Traffic Control Devices for Streets and 
Highways, 762-63 (Washington DC: Federal Highway Administration, 
December 2009).

    Emergency Notification signs [see Figure 1] should be installed 
at all highway-rail grade crossings * * * to provide information to 
road users so that they can notify the railroad company * * * about 
---------------------------------------------------------------------------
emergencies or malfunctioning traffic control devices.

Specifically, the standard includes the following--

     When Emergency Notification signs are used at a 
highway-rail grade crossing, they shall, at a minimum, include the 
U.S. DOT grade crossing inventory number and the emergency contact 
telephone number.
     Emergency Notification [s]igns shall have a white 
legend and border on a blue background.
     The Emergency Notification signs shall be positioned so 
as to not obstruct any traffic control devices or limit the view of 
rail traffic approaching the grade crossing.

    Section 8B.18 of the MUTCD provides the following additional 
guidance for emergency notification signs, which specifically states--

     Emergency Notification signs should be retroreflective.
     Emergency Notification signs should be oriented so as 
to face highway vehicles stopped on or at the grade crossing or on 
the traveled way near the grade crossing.
     At station crossings, Emergency Notification signs or 
information should be posted in a conspicuous location.
     Emergency Notification signs mounted on Crossbuck 
Assemblies or signal masts should only be large enough to provide 
the necessary contact information. Use of larger signs that might 
obstruct the view of rail traffic or other highway vehicles should 
be avoided.

    After consideration of the public comments in support of the MUTCD, 
the final rule establishes broad requirements relating to the physical 
sign characteristics in Sec.  234.309 and the placement of the sign in 
Sec.  234.311 that are similar to the standards and guidance contained 
in the MUTCD for emergency notification signs. However, FRA chose not 
to include a specific requirement that ENS signs conform to the MUTCD. 
Rather, FRA believes that the broad requirements contained in this 
section and in Sec.  234.311 are sufficient. Because the requirements 
in Sec. Sec.  234.309 and 234.311 are quite similar to the standards 
and guidance on emergency notification signs in the MUTCD, FRA will 
refer to the MUTCD as a guide to inform its enforcement of the 
provisions in Sec. Sec.  234.309 and 234.311. Moreover, if a railroad 
follows the standards and guidance in the MUTCD, FRA will find the 
railroad in compliance with Sec. Sec.  234.309 and 311. Figure 1 below 
is an example of an emergency notification sign provided in the MUTCD. 
Figure 2 is an example of an alternate design that, like Figure 1, also 
would meet the requirements of Sec.  234.309.
    The ILCC commented that the sign dimensions and letter size 
proposed in the NPRM, and adopted in the final rule, may be too small 
for a motorist to read. FRA believes that the minimum required size of 
the sign and its lettering reflects the attributes of many highway 
signs that are currently in use, and that the size of both is 
sufficiently large enough for a user of a highway rail or pathway grade 
crossing to read. The ILCC also suggested that the Crossing Inventory 
number assigned to that crossing be highlighted on the sign. Paragraph 
(c) of this section provides the option to highlight the Crossing 
Inventory number by displaying the number using black-colored text set 
on a white rectangular background. Separately, FRA acknowledges that 
each crossing may have different geometric characteristics that can 
pose challenges when positioning a sign. As a result, Sec.  234.309 
sets minimum design requirements to allow railroads the flexibility to 
install signs appropriate to the individual environment of the 
crossing. The final rule does not prohibit a railroad from using larger 
dimensions, for example, or adding certain stylistic features, so long 
as they do not conflict with Sec.  234.309.
    One commenter expressed concern about the use of the term 
``emergency'' on the sign, believing that most people are accustomed to 
dialing 911 and may call the railroad regarding emergencies not related 
to the highway-rail or pathway grade crossing. The final rule does not 
require the use of the term ``emergency'' on the sign, only that the 
sign convey the purpose of the sign pursuant to paragraph (b)(2) of 
this section. FRA recognizes that the use of the term ``emergency'' is 
one acceptable method of explaining the purpose of the sign. In the 
many ENS-style systems that are in place today, from Class I railroads 
to the pilot programs in Pennsylvania and Kentucky, FRA is not aware 
that calls of this nature have been an issue, and believes the term 
``emergency'' appropriately conveys the intent of the sign.
    Comments submitted by the Everett Railroad Company expressed 
concern that posting of an emergency number could lead to nuisance 
calls and false reports of emergencies, placing an

[[Page 35181]]

excessive burden on small railroads. History has proven this concern to 
be unwarranted for the most part. As railroads began to adopt various 
forms of emergency notification systems, the expectation of nuisance 
calls was a concern, but did not materialize. This fact was supported 
by the pilot projects, discussed previously, that FRA conducted in the 
State of Kentucky, the State of Texas, and with several short line 
railroads in the Commonwealth of Pennsylvania. See Pilot Programs for 
Emergency Notification Systems at Highway-Rail Grade Crossings 
(Washington, DC: Federal Railroad Administration, May 2006), http://www.fra.dot.gov/downloads/safety/1_800_report.pdf. The pilot programs 
did not find that false reports, or nuisance calls were an issue. In 
fact, the report concluded that railroads and the public overwhelmingly 
benefit from emergency call-in systems, noting,

[t]he preponderance of calls have reported broken or malfunctioning 
warning devices, but other calls have reported trains blocking 
crossings, rough roadway surfaces, obstructions on tracks (often 
vehicles that are stuck), fires, vandalism, trespassers, etc. Trains 
have been slowed or stopped to avoid obstructions. Warning devices 
have been repaired more quickly because railroads have been provided 
more timely notifications that problems existed.

    In order for the public to have an effective means to report 
warning system malfunctions and other unsafe conditions, a sign(s) must 
be located at the crossing with the pertinent information in order to 
contact the appropriate railroad and provide the railroad with 
sufficient information to correct the unsafe condition. The 
organization Crossing Call commented that while collisions on smaller 
railroads with reduced speeds may pose less of a hazard, there are 
additional benefits to an ENS other than reporting a stalled vehicle at 
the crossing. Crossing Call noted that--

[a] properly functioning warning systems [sic] promotes a public 
perception that the warning ought to be heeded * * *. An Emergency 
Notification System facilitates prompt attention to malfunctioning 
equipment and fosters the perception that railroads are concerned 
that equipment operates as intended.

FRA agrees. Although railroads have previously been obligated to take 
certain actions as required by subpart C if a report of a crossing 
system malfunction was reported by a person belonging to one of the 
categories defined in ``credible report of warning system malfunction'' 
in Sec.  234.5, this rule expands the duty of the railroad to take 
certain actions when reports are received from the general public.
[GRAPHIC] [TIFF OMITTED] TR12JN12.007

[GRAPHIC] [TIFF OMITTED] TR12JN12.008

Section 234.311 ENS Sign Placement and Maintenance

    Section 234.311 requires signs of the type specified by Sec.  
234.309 to be placed and maintained at highway-rail and pathway grade 
crossings. The maintaining railroad for the crossing would be 
responsible for the proper placement and maintenance of the sign. The 
dispatching railroad for the crossing would be responsible for 
providing the telephone number posted on the sign to the maintaining 
railroad, if the two are not the same railroad.
    FRA received comments from a handful of railroads and industry 
associations, two State agencies, and some individuals with respect to 
the placement and maintenance of ENS signs. Paragraph (a) of this 
section requires ENS signs to be placed and maintained on each approach 
at all public and private highway-rail and pathway grade crossings. An 
exception is provided in paragraph (a)(2)(i), which was not proposed in 
the NPRM, that allows for only one sign to be placed and maintained at 
farm grade crossings, as defined in Sec.  234.301. FRA believes that 
this exception is warranted because farm grade crossings generally have 
less vehicular traffic and people who traverse these crossings 
typically are more familiar with the crossings and likely will have 
prior knowledge of the presence and location of the ENS sign, if they 
need to report an unsafe condition.
    Another exception is provided in paragraph (a)(2)(ii), which was 
not proposed in the NPRM and which allows for one sign to be placed and 
maintained at each vehicular entrance to a railroad yard, port or dock 
facility,

[[Page 35182]]

or a private industrial facility that does not meet the definition of a 
``plant railroad'' in Sec.  234.5, rather than signs at each crossing 
within the yard, port or dock facility or private industrial facility.
    As mentioned previously in the NPRM, FRA considered whether to 
expand 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. The ILCC recommended expanding subpart E to cover all public 
highway-rail grade crossings located within a port or dock facility. 
The CPUC made a similar recommendation. However, these facilities are 
typically not open to the general public. FRA believes that a sign 
located at each vehicular entrance sufficiently provides an invitee 
with the telephone number of the dispatching railroad if necessary to 
report an unsafe condition. Furthermore, these facilities often have a 
significant number of crossings located within a small area, and FRA 
believes that it is impracticable to consider each crossing within 
these areas as a separate grade crossing, and posting a sign at every 
crossing may not be possible. Additionally, railroads typically operate 
in these facilities at very low speed and thus the hazards of a 
collision are reduced. Furthermore, treating all the public highway-
rail grade crossings within these facilities/yards as one public 
highway-rail grade crossing is consistent with the Crossing Inventory, 
Policy, Procedures and Instructions for States and Railroads 
(Washington, DC: Federal Railroad Administration, August 2007), http://www.fra.dot.gov/downloads/safety/RXIPolicyInstructions0807.pdf.
    A couple of commenters suggested that there be no requirement to 
have ENS signs placed and maintained at private highway-rail and 
pathway grade crossings because these private crossings typically are 
not accessible from public roads and many of them do not have 
crossbucks. FRA disagrees with this suggestion because probable 
invitees that use private crossings will not be familiar with the 
crossings nor have prior knowledge of the presence and/or location of 
the ENS signs. The presence of two signs--one on each approach--will 
enhance an invitee's awareness and ability to utilize ENS. A collision 
that is caused by a vehicle that is stalled on a private grade crossing 
and is struck by a train has the same consequences as a similar 
collision that occurs on a public grade crossing. The users of a 
private grade crossing should have the same opportunity to utilize ENS, 
and thus FRA has determined that two signs are appropriate at private 
grade crossings.
    Furthermore, one commenter recommended that the private party that 
operates over the private crossing should be responsible for the 
installation and maintenance of the ENS sign at the crossing, as 
opposed to the railroad. FRA believes that it is a maintaining 
railroad's responsibility to install and maintain the ENS sign; 
however, this final rule puts no restrictions on a railroad's authority 
to make a private crossing agreement to that effect, if so desired.
    In the NPRM, FRA proposed general requirements regarding the 
placement of the sign so that the sign may be easily seen and does not 
obstruct any other sign or traffic control devices at the crossing. FRA 
sought public comment on ``sign placement so the appropriate placement 
for optimal visual effectiveness of the sign may be determined.'' AAR 
was the only commenter opposed to what is now paragraph (b) of Sec.  
234.311. FRA made several changes to proposed paragraph (b) in this 
final rule. The paragraph now identifies four requisite characteristics 
related to the placement of an ENS sign--that it is conspicuous; does 
not obstruct other signs or traffic control devices at the crossing; 
does not limit the view of a train; and, if mounted on a post, it has 
supports that are crashworthy.
    AAR contended that paragraph (b) as it was proposed in the NPRM 
should be deleted from this section because the MUTCD already addresses 
the placement of ENS signs. Additionally, AAR asserted that some of the 
requirements proposed in the NPRM were ambiguous, and therefore would 
result in compliance and enforcement problems. FRA believes that the 
revised requirements contained in paragraph (b) of this final rule are 
more understandable than those proposed in the NPRM. As stated 
previously, in the discussion of Sec.  234.309, FRA prefers to set its 
own standards for sign placement and maintenance rather than 
incorporate the MUTCD by reference.
    Several other commenters made suggestions regarding the location 
and orientation of the signs. The BRS suggested that signs be placed in 
a location where a stopped motorist is not required to exit the vehicle 
to read the sign. FRA believes that the requirement in paragraph (b)(i) 
for an ENS sign to be conspicuous to roadway and pathway users by day 
and night, combined with the size and letter requirements in Sec.  
234.309(c), will limit the times that motorists need to exit their 
vehicles to read a sign and obtain the telephone number to report 
unsafe conditions at a crossing. With regard to ENS signs placed on 
signal bungalows, FRA stated in the NPRM that ``[i]t is difficult to 
envision a scenario in which placing the sign on the signal bungalow 
would satisfy all of the [proposed] requirements [particularly those 
that require] a sign to be placed at a grade crossing so that it is 
conspicuous to the users of the roadway or pathway.'' The CPUC and ILCC 
advocated that signs be placed directly at the crossing for each 
direction of traffic, and acknowledged that ENS signs placed solely on 
signal bungalows would be too distant from a crossing to be conspicuous 
to roadway and pathway users. Yet, Amtrak and New Jersey Transit Rail 
Operations (NJTR) each asserted that their signs currently placed on 
signal bungalows are sufficiently conspicuous since they are 
approximately four times larger than the minimum size required in the 
final rule, and the height of the lettering is two to three times 
greater than that required in the final rule. Although Amtrak's and 
NJTR's signs are much larger than the specifications required in the 
final rule, FRA believes that because they are not located at the 
crossing itself, but rather on the signal bungalow, the signs are less 
conspicuous to the roadway or pathway user who is at the crossing and 
needs to report an emergency or other unsafe condition. Signal 
bungalows vary widely in their distance from a crossing, so even though 
the dimensions and lettering of the signs may be considerably larger 
than required by Sec.  234.309, it still may be difficult for a user of 
a highway-rail grade crossing to read the sign. Accordingly, the final 
rule does not prohibit the placement of a sign on the signal bungalow, 
but a sign placed on the signal bungalow, but nowhere else at the 
crossing, does not comply with Sec.  234.311. Railroads, like NJTR, 
that currently have ENS signs that are only located on the signal 
bungalow will have until September 1, 2017, for their signs to conform 
to the placement requirements in Sec.  234.311, pursuant to Sec.  
234.317.
    In the NPRM, FRA solicited comments on other locations at grade 
crossings, besides signal bungalows, where the placement of the ENS 
sign would not satisfy proposed Sec.  234.311. CPUC suggested that, in 
addition to the signal bungalow, it would not be appropriate to place 
an ENS sign facing the track, unless there is also a sign for each 
direction of traffic; outside of the crossing area; within a heavily 
fenced enclosure that would obscure the sign;

[[Page 35183]]

immediately behind another sign; or more than 10 feet outside the 
public right of way unless supplemented by additional signs at the 
crossing. For the final rule, FRA determined that the requirement in 
Sec.  234.311(b)(i) that the ENS sign be conspicuous to users of the 
roadway or pathway by day and night, adequately ensures that ENS signs 
placed in such locations would not comply.
    In the final rule, a sign at a grade crossing is not required to be 
mounted on a post, but rather may be mounted anywhere at the crossing 
that is consistent with its being conspicuous to users of the roadway 
or pathway by day and night, as well as consistent with the other 
placement requirements in Sec.  234.311. FRA did not require a specific 
location at a crossing where a sign must be placed because such a 
specific location may not exist at every crossing. A few of the places 
suggested by commenters that would comply with Sec.  234.311 include 
mounting the sign below the crossbuck, on the signal mast, below the 
gate mechanism, or on a post to the side of the crossbuck. NJTR is the 
only railroad that commented that there is not sufficient space on the 
crossing gate masts at their crossings to install ENS signs that meet 
the minimum sign size specified in Sec.  234.309(c) of at least 12 
inches wide by 9 inches high. FRA notes that signs of this size have 
been installed on crossing gate masts by other railroads so that they 
do not interfere with the operation of the automatic warning systems. 
Furthermore, the railroad may display the ENS sign on a separate post, 
if necessary.

Section 234.313 Recordkeeping

    Section 234.313 sets forth the recordkeeping requirements for this 
subpart that apply to each railroad subject to this subpart. Paragraph 
(a) of this section requires each railroad to keep certain records 
pertaining to its compliance with this subpart. Records may be kept on 
paper forms generated by the railroad or kept electronically in a 
manner that conforms with Sec.  234.315. In this final rule, FRA mainly 
adopts paragraph (a) as it was proposed in the NPRM, with the exception 
of stylistic changes and one addition. In addition to the recordkeeping 
requirements already enumerated in the NPRM, paragraph (a) now also 
requires that a railroad retain information regarding the reason why no 
remedial action was taken by it. In the NPRM, FRA solicited comments on 
what other information the railroad should be required to record. The 
CPUC recommended requiring information about why a railroad found a 
reported problem infeasible or unlawful to remedy. FRA believes that 
the new requirement in paragraph (a) addresses the issue raised by 
CPUC. The ILCC also suggested that weather conditions at the crossing 
location be recorded when a caller makes a report of an unsafe 
condition. While this may be helpful information for some remedial 
actions undertaken by the railroad, FRA is not requiring that weather 
conditions be recorded. The recordkeeping requirements mandated by this 
section are minimum requirements; railroads are permitted to record 
additional information if they choose to do so.
    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, paragraph (b) of Sec.  
234.313 states there is no separate recordkeeping requirement in 
subpart E for credible reports of warning system malfunction.
    In the final rule, FRA adds paragraphs (c) to this section to 
address the recordkeeping requirements associated with new Sec.  
234.306. In Sec.  234.306, where multiple railroads dispatch trains 
through the same highway-rail or pathway grade crossing, the railroads 
are required to appoint one of their number to receive telephonic 
reports. Similarly, in Sec.  234.306, where multiple railroads have 
maintenance responsibilities for the same crossing, the railroads are 
required to appoint one of their number to install and maintain the ENS 
sign(s) at the crossing. Paragraph (c) of Sec.  234.313 requires that 
these appointments be recorded in writing and a copy of the document 
retained by each railroad for the duration of the appointment.
    Paragraph (e) of this section 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 subpart) 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). 
Some public comments received by FRA indicated that one year is not a 
sufficient period of time for the railroads to retain the records 
required by this section. However, a one-year period for retention of 
records is consistent with other FRA regulations in part 234.
    In the NPRM, FRA solicited comments on whether to require the 
railroad to record the caller's name and contact information so that 
the railroad could follow up with the caller if necessary. A few 
commenters, including the ILCC and the organization Crossing Call, 
supported obtaining the caller's name and contact information. However, 
the AAR recommended against this proposal, stating that the caller's 
identifying information is not necessary for enforcement purposes and 
that not all callers would be willing to provide such information. In 
light of these comments, FRA has decided not to require a dispatching 
railroad to record a caller's name or contact information in this final 
rule. Dispatching and maintaining railroads are required to take 
remedial actions pursuant to Sec.  234.305, regardless of whether or 
not they know the identity of the caller. A railroad's knowledge of a 
caller's name and contact information would add little or no benefit to 
a railroad's remedial efforts. Moreover, some callers reporting an 
unsafe condition may be deterred from making a report if required to 
provide their name and contact information.
    The Angels on Track Foundation recommended that railroads be 
required to provide State agencies that are responsible for selecting 
crossings for upgrades and enforcing regulations at crossings with 
documentation of the reports of unsafe conditions received through ENS. 
FRA believes this recommendation is outside the scope of this rule; 
however, railroads are at liberty to provide such information to State 
agencies.
    Finally, Amtrak requested that FRA protect any documentation and 
data prepared, compiled, or collected under subpart E from discovery or 
admission into evidence or otherwise used for any other purpose in a 
Federal or State court proceeding for damages involving personal injury 
or wrongful death against a railroad. Specifically, Amtrak references 
23 U.S.C. 409, which Congress enacted pursuant to an FHWA proposal to 
shield information provided to FHWA by State and local governments to 
further highway transportation safety. Congress in Sec. 205 of the RSIA 
did not provide a similar protection against the discovery or admission 
into evidence of certain information in a Federal or State court 
proceeding in any action for damages arising from information or data 
obtained as a result of this final rule. Without an express 
Congressional mandate, it is outside FRA's authority to provide the 
protections sought by Amtrak.

Section 234.315 Electronic Recordkeeping

    Section 234.315 addresses the keeping of records required by 
subpart E electronically. This section applies to railroads that choose 
to conduct electronic recordkeeping under subpart E. These electronic 
recordkeeping

[[Page 35184]]

requirements are modeled after the requirements set forth in FRA's 
Railroad Operating Rules at 49 CFR 217.9(g) (Sec.  217.9(g)). The final 
rule adopts Sec.  234.315 as proposed in the NPRM, with the exception 
of typographical and stylistic changes and clarification that the 
section applies only to records required by subpart E and not to 
records required by part 234 in general. FRA received no public 
comments in response to this proposed section.
    If a railroad chooses to conduct electronic recordkeeping of 
records required by 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 by 
FRA representatives. Section 217.9(g) requires the computer to be a 
desktop 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 is allowing 
railroads the flexibility to maintain their records on other types of 
computers, such as laptops. It should be noted that, regardless of the 
type of 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 by 
FRA representatives. 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 subpart 
E, at any reasonable time if situations warrant it. Each railroad must 
also designate who is 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 with data, enabling FRA to 
fully execute its enforcement responsibilities. Furthermore, if an 
electronic record kept by the railroad pursuant to this subpart does 
not comply with paragraph (a) of Sec.  234.315, then the record must be 
kept on paper.

Section 234.317 Compliance Dates

    Section 234.317 provides the date by which each of various groups 
of railroads must comply with this subpart. In response to the 
compliance dates proposed in the NPRM, FRA received several comments 
from railroads and other groups and individuals in the railroad 
industry. With respect to railroads that currently do not have an ENS 
of any kind in place, the ILCC recommended that these railroads have 12 
months to implement a system that conforms to the subpart. The 
organization Crossing Call stated that the proposal in the NPRM to 
allow railroads without an ENS to implement one within 18 months (after 
the effective date of subpart E), as proposed in the NPRM, was an 
overly generous amount of time, and recommended allowing only 9 months 
to conform to the subpart. One individual commented that the compliance 
dates proposed in the NPRM failed to instill a sense of urgency and all 
railroads should be allowed somewhere between six and twelve months to 
conform to the subpart. After careful consideration of these comments, 
as well as comments from smaller railroads regarding the financial 
burden that the rule will place on their business operations (see 
Regulatory Evaluation for this final rule), FRA decided in the final 
rule to extend the implementation period for railroads that currently 
do not have any sort of ENS in place from 18 months, as proposed in the 
NPRM, to approximately three years after the effective date of the 
final rule, i.e., September 1, 2015. This additional time provides 
smaller railroads the opportunity to phase-in implementation of an ENS 
in stages, thus spreading out the costs of implementation.
    Paragraph (a) of this section applies to railroads that do not have 
anything in 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 noncompliant.
    In paragraph (b) of Sec.  234.317, if a railroad already has its 
own ENS telephone service or is using a third-party telephone service, 
but that telephone service does not comply with the requirements in 
Sec.  234.303 or Sec.  243.307, respectively, the railroad must bring 
the ENS telephone service into compliance by March 1, 2014--as opposed 
to the six months proposed in the NPRM.
    In paragraph (c)(1) of Sec.  234.317, if a railroad already has ENS 
signs in place, but those signs do not comply with the requirements set 
forth in Sec.  234.309, the railroad's ENS signs must conform to Sec.  
234.309 within certain time periods as required in paragraph (c)(1)(i)-
(iii) of Sec.  234.317.
    In response to the NPRM, both the AAR and KCS recommended that all 
existing ENS signs be permitted to remain in place for their normal 
useful life. In consideration of these comments, in the final rule, FRA 
is allowing certain signs to remain in place for the lifecycle of the 
sign. Specifically, paragraph (c)(1)(i) permits a railroad to keep an 
ENS sign that is in place for its useful life if the sign size is 
greater than or equal to 60 square inches, and the height of the 
lettering on the sign is greater than or equal to \3/4\ inch for the 
information required in Sec.  234.309(b). FRA assesses that the useful 
life of a sign is approximately 15 years. This modification in the 
final rule decreased the estimated costs initially assessed in the NPRM 
by $3.0 million over a 15-year period. At present, the majority of 
Class 1 railroad signs located at crossings meet the size and lettering 
requirements in paragraph (c)(1)(i).
    However, AAR also advocated for railroads being allowed to use 
their existing inventory of signs if they contain the telephone number 
and Crossing Inventory number. FRA disagrees. Once a railroad replaces 
a sign, the new sign must conform to Sec.  234.309, so that within a 
reasonable amount of time there is uniformity to the signs at crossings 
throughout the United States.
    Paragraph (c)(1)(ii) requires that if a railroad has an ENS sign in 
place that is greater than or equal to 60 square inches, but the height 
of the lettering on the sign is less than \3/4\ inch for the 
information required in Sec.  234.309(b), the railroad must replace the 
sign with a compliant sign by September 1, 2017.
    Paragraph (c)(1)(iii) requires that if a railroad has an ENS sign 
in place that is less than 60 square inches, regardless of the height 
of the lettering for the information required in Sec.  234.309(b), the 
railroad must replace the sign with a compliant sign by September 1, 
2015.
    Paragraph (c)(2) of this section stipulates that if the railroad 
replaces a non-conforming sign before the expiration of the time 
periods in paragraph(c)(1)(i)-(iii), the railroad must replace the sign 
with one that conforms to Sec.  234.309.
    Under paragraph (d) of Sec.  234.317, if a railroad already has ENS 
signs in place,

[[Page 35185]]

but the placement of those signs does not comply with the requirements 
set forth in Sec.  234.311, the placement of the signs must conform to 
Sec.  234.311 by September 1, 2017. 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 Sec.  234.311. Furthermore, 
if a railroad replaces a sign before September 1, 2017 so that the sign 
conforms to Sec.  234.309 and the placement of the sign does not 
conform to Sec.  234.311, the railroad must also change the placement 
of the sign so that it conforms to Sec.  234.311.
    In the NPRM, FRA solicited comments on 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. FRA received several comments on this issue. The BRS, 
the CPUC, and the ILCC all supported reducing the implementation period 
from 5 years to 18 months or less for signs placed on signal bungalows. 
However, to provide economic relief to railroads, FRA decided in the 
final rule to grant railroads until September 1, 2017, allotting the 
same amount of time as proposed in the NPRM.
    Finally, paragraph (e) requires that if a railroad already conducts 
recordkeeping as part of its ENS, but the recordkeeping does not 
conform to Sec.  234.313 or Sec.  234.315, the railroad's recordkeeping 
must conform to Sec.  234.313 or, as applicable, Sec.  234.315, by 
September 1, 2013.

V. Regulatory Impact

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

    This final 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 final 
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 final rule. For the 15-year period analyzed, the 
estimated quantified cost that will be imposed on industry totals $15.6 
million with a present value (PV, 7 percent) of $10.1 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 
this final rule.

                15-Year Estimated Costs of the Final Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Section 234.303--Toll-Free Service......................        $989,870
Section 234.306--Multiple Dispatching or Maintaining               9,800
 Railroads..............................................
Section 234.307--Third-Party Service....................           2,881
Section 234.309--Signs (Materials)......................       2,863,448
Section 234.309--Signs (Installation)...................       2,007,754
Section 234.311--Post (Materials).......................         238,621
Section 234.311--Post (Installation)....................         200,775
Section 234.313--Initial Recordkeeping..................         299,790
Section 234.313--Remedial Recordkeeping.................       3,490,728
                                                         ---------------
    Total...............................................     $10,103,668
------------------------------------------------------------------------
Dollars are discounted at a present value rate of 7 percent. Note that
  numbers may not add due to rounding.

    As part of the regulatory evaluation, FRA has explained what the 
likely benefits for this final rule will be, and provided numerical 
assessments of the potential value of such benefits. This final rule 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 final rule should decrease grade crossing accidents and incidents 
and associated casualties and damages. Other than the reduction of 
accidents, fatalities, injuries, and associated damages, FRA is aware 
of several other benefits that will occur when accidents are prevented. 
Savings have been estimated for avoiding train delay, highway delay, 
emergency personnel responding, vehicle towing, and accident clean-up 
associated with grade crossing accidents.
    Based on its analysis, FRA has found that the expected accident 
reduction benefits will exceed the total cost of this final rule. Over 
a 15-year period, this analysis finds that $57.8 million in cost 
savings will accrue through casualty prevention, damage avoidance, and 
other benefits. The discounted value of this is $31.7 million (PV, 7 
percent). The table below presents the estimated benefits associated 
with this final rule.

              15-Year Estimated Benefits of the Final Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Fatalities (Prevented)..................................     $21,519,783
Injuries (Prevented)....................................       8,587,839
Highway Vehicle Damage (Avoided)........................         651,130
Railroad Equipment Damage (Avoided).....................         327,922
Track/Structure Damage (Avoided)........................         203,988
Other Benefits..........................................         416,974
                                                         ---------------
Total...................................................     $31,707,636
------------------------------------------------------------------------
Dollars are discounted at a present value rate of 7 percent. Note that
  numbers may not add due to rounding.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly 
considered, FRA has developed this final rule in accordance with 
Executive Order 13272 (``Proper Consideration of Small Entities in 
Agency Rulemaking'') and DOT's procedures and policies to promote 
compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    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 economic 
impact on a substantial number of small entities.
    As discussed earlier, FRA has initiated this rulemaking as a 
requirement of the RSIA. This final rule requires each railroad to 
establish and maintain a toll-free telephone service to directly 
receive calls from the public reporting an emergency or other unsafe 
condition at its grade crossings, and to remedy those unsafe 
conditions, as appropriate. As part of these duties, a railroad is 
required to install and maintain signs at its grade crossings that 
display its emergency telephone number.
    (1) Description of Regulated Entities and Impacts. The ``universe'' 
of the entities under consideration includes only those small entities 
that can reasonably be expected to be directly affected by the 
provisions of this rule. For the rule there is only one type of small 
entity that is affected: small railroads.

[[Page 35186]]

    ``Small entity'' is defined in 5 U.S.C. 601 (Section 601). Section 
601(3) defines the term ``small entity'' as having the same meaning as 
``small business concern'' under Section 3 of the Small Business Act. 
This includes any small business concern that is independently owned 
and operated, and is not dominant in its field of operation. Section 
601(4) likewise includes within the definition of ``small entity'' a 
not-for-profit enterprise that is independently owned and operated, and 
not dominant in its field of operations.
    The U.S. Small Business Administration (SBA) stipulates in its 
``Size Standards'' that the largest a railroad business firm that is 
``for-profit'' may be, and still be classified as a ``small entity,'' 
is 1,500 employees for ``Line Haul Operating Railroads'' and 500 
employees for ``Switching and Terminal Establishments.'' See ``Size 
Eligibility Provisions and Standards,'' 13 CFR part 121 subpart A.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA, and in conjunction with public 
comment. Pursuant to the authority provided to it by SBA, FRA has 
published a final policy, which formally establishes small entities as 
railroads that meet the line haulage revenue requirements of a Class 
III railroad. See 68 FR 24891 (May 9, 2003), codified at Appendix C to 
49 CFR part 209. Currently, the revenue requirements are $20 million or 
less in annual operating revenue, adjusted annually for inflation. The 
$20 million limit (adjusted annually for inflation) is based on the 
STB's threshold for a Class III railroad, which is adjusted by applying 
the railroad revenue deflator adjustment. For further information on 
the calculation of the specific dollar limit, see 49 CFR part 1201. FRA 
is using the STB's threshold in its definition of ``small entities'' 
for this rule.
    Included in the entities impacted by this final rule are 
governmental jurisdictions or transit authorities--none of which are 
small for purposes of the SBA (i.e., no entity serves a locality with a 
population less than 50,000). Commuter railroads are part of larger 
transit organizations that receive Federal funds. Therefore, they are 
not included in this analysis. Additionally, this final rule is 
expected to indirectly impact sign and post manufacturers, but only to 
the extent that the demand increases for products and services they 
supply. Such impact, however, will likely be both small and favorable 
to those small businesses.
    Railroads. FRA estimates that there are 710 Class III freight and 
passenger (excluding commuter and intercity) railroads in the United 
States. Certain provisions of this final rule will apply to all 
railroads that dispatch trains through highway-rail or pathway grade 
crossings. Out of the 710 Class III railroads, FRA estimates that there 
are 153 small freight and passenger (excluding commuter and intercity) 
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 final rule. Thus, FRA has concluded that 557 small 
railroads will be affected by those provisions of this final rule. 
Hence, FRA has concluded that a substantial number of small entities 
will be impacted. However, as explained below, the impact on these 
small railroads will not be significant.
    The small railroads affected by this final rule are defined as 
Class III railroads with grade crossings. FRA estimates that Class III 
railroads dispatch trains over 59,845 grade crossings. To evaluate the 
impact on these railroads, it is helpful to separate them into three 
groups by number of employees. Thus, FRA subdivided these railroads 
into small railroads, very small railroads, and extremely small 
railroads. Small railroads are Class III railroads with 15 or more 
employees. Very small railroads are those with fewer than 15 employees, 
but more than 2 employees. Extremely small railroads are those with 2 
or fewer employees. The table below shows the average annualized cost 
per small railroad, by category:

----------------------------------------------------------------------------------------------------------------
                                                                                                      Average
                                                                                  Average number    annualized
                   Class III affected entities                       Number of     of crossings      cost per
                                                                     railroads     per railroad    railroad per
                                                                                                       year
----------------------------------------------------------------------------------------------------------------
Small...........................................................             203             199          $2,461
Very Small......................................................             217              69             944
Extremely Small.................................................             137              32             312
----------------------------------------------------------------------------------------------------------------
Source: Federal Railroad Administration 2009 data, compiled on September 1, 2010.

    The cost to comply with this final rule largely depends upon the 
number of crossings that a railroad maintains. Throughout the 
regulatory evaluation, FRA has split the small railroads into three 
categories and analyzed the costs and benefits separately for each of 
these categories. The burden placed on the very small and extremely 
small Class III railroads is generally proportionately less because 
they usually maintain fewer crossings.
    FRA estimates there are 203 small railroads with 15 or more 
employees. This group of railroads has 40,363 grade crossings; an 
average of approximately 199 crossings per railroad. FRA estimates the 
average total cost for small railroads to comply with this final rule 
is approximately $4,304 per railroad for each of the first 3 years, and 
$1,037 per railroad per year for each of the following 12 years.
    FRA estimates there are 217 very small railroads; those with less 
than 15 employees but more than 2 employees. This group of very small 
railroads has 15,074 grade crossings, an average of approximately 69 
crossings per railroad. The average total cost for very small railroads 
is approximately $1,567 per railroad for each of the first 3 years, and 
$428 per railroad per year for each of the following 12 years.
    Extremely small railroads are those with two or fewer employees. 
There are 137 railroads in this category, accounting for 4,408 grade 
crossings. Extremely small railroads have an average of approximately 
32 grade crossings. The average total cost for extremely small 
railroads is approximately $646 per railroad for each of the first 3 
years, and $104 per railroad per year for each of the following 12 
years. Using the average annualized cost of $312 per railroad per year, 
and an average of 32 crossings per railroad, FRA estimates the cost to 
these extremely small railroads to comply with this final rule is about 
$10 per crossing per year over the 15-year analysis. Railroads with 
just a few crossings will incur very minimal costs to comply with this 
final rule. Thus, this final rule will not have a significant economic 
impact on extremely small railroads.
    Many small railroads are subsidiaries of large short line holding 
companies

[[Page 35187]]

with the expertise and resources comparable to larger railroads. The 
requirement to install two new signs per crossing and provide a toll-
free telephone number in case of emergencies will not have a 
significant economic impact on these railroads. Short line railroads 
affected by this final rule might collaborate with other small 
railroads to implement its requirements, which would lower the burden 
on these small railroads.
    FRA received several comments related to the impact on small 
entities and tourist railroads, regarding the regulatory flexibility 
analysis, and compliance with Executive Order 13272. FRA considered 
these comments and, accordingly, in this final rule, FRA examined the 
impact on small businesses, made cost-reducing changes, and re-
evaluated the costs and benefits.
    Several comments on the NPRM requested that FRA adjust the 
monitoring and signage requirements to give consideration to small 
entities. The changes to the final rule made since the NPRM will reduce 
the burden on small railroads. FRA revised the monitoring requirements 
for railroads that dispatch trains authorized to operate at speeds less 
than or equal to 20 mph through crossings. Also, those railroads that 
operate at seasonally or intermittently and at speeds greater than 20 
mph through crossings are not required to have live monitoring during 
hours of non-operation. Farm grade crossings are now only required to 
have one sign per crossing; this reduces the number of signs for Class 
III railroads by 13,510. These changes have moderately decreased the 
annual and total costs for small entities. Based on changes made in the 
regulatory requirements since the NPRM, FRA is even more confident that 
the impact on small entities will not be significant.
    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 more than the average annual cost that these railroads will incur 
because of this final rule. Very small and extremely small railroads 
likely do have smaller revenues than larger Class III railroads. 
However, FRA believes that this average provides a good representation 
of the small railroads, in general. If a railroad has annual average 
revenue greater than $134,122, the annual cost per railroad will be 
less than 1 percent of revenue.
    FRA concludes that the final rule will not have a noticeable 
economic impact on the competitive position of small entities, or on 
the small entity segment of the railroad industry as a whole.
    (2) Certification. Pursuant to the Regulatory Flexibility Act (5 
U.S.C. 605(b)), FRA certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities. 
Although a substantial number of small railroads will be affected by 
the final rule, none of these entities will be significantly impacted.

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 final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. The rule will not have 
a substantial effect on the States or their political subdivisions; it 
will not impose any compliance costs; and it will not affect the 
relationships between the Federal government and the States or their 
political subdivisions, or the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    This final rule amends part 234, which contains FRA's 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, part 234 still could have preemptive effect by operation of law 
under a provision of the former Federal Railroad Safety Act of 1970 
(former FRSA), which was repealed and recodified at 49 U.S.C. 20106 
(Section 20106). Section 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 Section 20106.
    FRA believes that Section 20106 sufficiently addresses the 
preemptive effect of FRA's regulations. Providing a separate Federal 
regulatory provision in this final rule, as suggested by some public 
comments on the proposed rule, concerning the regulation's preemptive 
effect is duplicative and unnecessary.
    In sum, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this final rule has no 
federalism implications, other than the possible preemption of State 
laws under Federal railroad safety statutes, specifically 49 U.S.C. 
20106. Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this final 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 final rule are 
being 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 of

[[Page 35188]]

the final rule that contain the new information collection requirements 
and the estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
       CFR Section/Subject         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
234.303(b)--Receipt by             594 railroads......  63,891 reports.....  1 minute...........     1,065
 Dispatching RR of Report of
 Unsafe Condition at Highway-Rail
 Grade Crossing.
234.303(d)--Receipt by             594 railroads......  1,860 reports/1,860  1 minute + 1 minute        62
 Dispatching RR of Report of                             records.
 Unsafe Condition at Pathway
 Grade Crossing.
234.305 (a)(2)--Immediate Contact  594 railroads......  465 contacts.......  1 minute...........         8
 by Dispatching RR Not Having
 Maintenance Responsibility of
 All Trains Authorized to Operate
 through That Crossing in
 Response to Credible Report of
 Warning System Malfunction at
 Highway-Rail Grade Crossing.
    --(a)(2) Contact of Crossing   594 railroads......  465 contacts + 465   1 minute + 1 minute        16
     Maintenance RR by                                   records.
     Dispatching RR Not Having
     Maintenance Responsibility
     in Response to Credible
     Report of Warning System
     Malfunction at Highway-Rail
     Grade Crossing.
    --(b)(1) In Response to        594 railroads......  925 contacts + 925   1 minute + 1 minute        30
     Public Report of Warning                            records.
     System Malfunction at
     Highway-Rail Grade Crossing
     Immediate Contact by
     Dispatching RR Having
     Maintenance Duty for
     Crossing of All Trains
     Authorized to Operate
     Through That Crossing.
--Dispatching RR Having            594 railroads......  925 contacts.......  1 minute...........        15
 Maintenance Duty for Crossing
 Contact of Appropriate Law
 Enforcement Authority with
 Necessary Information regarding
 Reported Malfunction.
    --234.305 (b)(2) In Response   594 railroads......  920 contacts.......  1 minute...........        15
     to Public Report of Warning
     System Malfunction at
     Highway-Rail Grade Crossing
     Immediate Contact by
     Dispatching RR Not Having
     Maintenance Duty for that
     Crossing of All Trains
     Authorized to Operate
     Through That Crossing.
    --Dispatching RR Contact of    594 railroads......  920 contacts.......  1 minute...........        15
     Law Enforcement Authority to
     Direct Traffic/Maintain
     Safety.
    --Dispatching RR Contact of    594 railroads......  920 contacts + 920   1 minute + 1 minute        30
     Maintaining RR re: Reported                         records.
     Malfunction and Maintaining
     RR Record of Unsafe
     Condition.
    234.305(c)(1)--In Response to  594 railroads......  2 contacts + 2       1 minute + 1 minute          .06666
     Report of Warning System                            records.
     Failure at Pathway Grade
     Crossing Dispatching RR
     Having Maintenance Duty
     Contact of All Trains
     Authorized to Operate Thru
     It & Record of Unsafe
     Condition.
    --In Response to Report of     594 railroads......  2 contacts.........  1 minute...........          .03333
     Warning System Failure at
     Pathway Grade Crossing
     Dispatching RR Having
     Maintenance Duty Contact of
     Law Enforcement Agencies to
     Direct Traffic & Maintain
     Safety.
    --234.305(d)(1) Upon           594 railroads......  7,440 contact +      1 minute + 1 minute       248
     Receiving Report of Disabled                        7,440 reds..
     Vehicle or Other Obstruction
     Dispatching RR Having
     Maintenance Duty Contact of
     All Trains Authorized to
     Operate Through Highway-Rail
     or Pathway Grade Crossing &
     Record of Unsafe Condition.
    --Dispatching RR Having        594 railroads......  7,440 contacts.....  1 minute...........       124
     Maintenance Duty Contact of
     Law Enforcement Authority
     Upon Receiving Report of
     Disabled Vehicle or Other
     Obstruction.
    --(d)(2) Dispatching RR Not    594 railroads......  2,556 contacts.....  1 minute...........        43
     Having Maintenance Duty
     Contact of All Trains
     Authorized to Operate
     through Highway-Rail or
     Pathway Grade Crossing After
     Report of Disabled Vehicle
     or Other Unsafe Condition.

[[Page 35189]]

 
    --Dispatching RR Not Having    594 railroads......  2,556 contacts.....  1 minute...........        43
     Maintenance Responsibility
     Contact of Law Enforcement
     Authority regarding Disabled
     Vehicle/Unsafe Condition.
    --Dispatching RR Contact of    594 railroads......  2,556 contacts +     1 minute + 1 minute        86
     Maintaining RR regarding                            2,556 records.
     Unsafe Condition at Crossing
     & Record of Unsafe Condition.
    234.305(h)--Provision of       594 railroads......  10 info contacts...  1 minute...........          .1667
     Contact Information by
     Maintaining RR to
     Dispatching RR in Order to
     Be Contacted regarding
     Reports of Unsafe Conditions
     at Highway-Rail and Pathway
     Grade Crossings.
    234.306(a)--Appointment of     594 railroads......  50 appointments &    60 minutes.........        50
     One Dispatching RR as                               records.
     Primary Dispatching RR Where
     Multiple RRs Dispatch Trains
     through Same Highway-Rail or
     Pathway Grade Crossing to
     Provide Info. for ENS Sign.
    (b)--Appointment of One        594 railroads......  50 appointment &     60 minutes.........        50
     Maintaining RR As Primary                           records.
     Maintaining RR Where
     Multiple RRs Maintain Same
     Highway-Rail or Pathway
     Grade Crossing for Placement
     and Maintenance of ENS Sign.
    234.307(b)--3rd Party          594 railroads......  50 reports + 50      1 minute + 1 minute         2
     Telephone Service Report of                         records.
     Unsafe Conditions at Highway-
     Rail or Pathway Grade
     Crossings to Maintaining
     Railroad and Maintaining RR
     Record of Unsafe Condition.
    (c)--3rd Party Telephone       594 railroads......  50 reports.........  1 minute...........         1
     Service Report to
     Dispatching RR of Unsafe
     Condition.
    (d)(1)--Provision of Contact   594 railroads......  17 contact calls...  15 minutes.........         4
     Information to 3rd Party
     Telephone Service by
     Dispatching RR or
     Maintaining RR Using That
     Service to Receive Reports
     of Unsafe Conditions at
     Highway-Rail or Pathway
     Grade Crossings.
    (d)(2)--Written Notice to FRA  594 railroads......  17 letters.........  60 minutes.........        17
     by Railroad of Intent to Use
     3rd Party Svc.
    (d)(3)--Railroad Written       594 railroads......  5 letters..........  60 minutes.........         5
     Notification to FRA of Any
     Changes in Use or
     Discontinuance of 3rd Party
     Service.
    234.309(a)--ENS Signs--        594 railroads......  10 contacts........  30 minutes.........         5
     General--Provision of ENS
     Telephone Number to
     Maintaining RR by
     Dispatching RR If Two RRs
     Are Not the Same.
    --(b) ENS Signs Located at     594 railroads......  81,948 signs.......  30 minutes.........    40,974
     Highway-Rail or Pathway
     Grade Crossings as required
     by Sec.   234.311 with
     Necessary Information to
     Receive Reports Required
     under Sec.   234.303.
234.313--Recordkeeping--Records    594 railroads......  186,000 records....  4 minutes..........    12,400
 of Reported Unsafe Conditions
 Pursuant to Sec.   234.303.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-
493-6292 or Ms. Kimberly Toone at 202-493-6132 or via email at the 
following addresses: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, D. C. 20503, Attention: FRA Desk Officer. Comments may also 
be sent via email to OMB at the following address: oira_submissions@omb.eop.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final 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.
    FRA is not permitted 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 this final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

[[Page 35190]]

F. Environmental Assessment

    FRA has evaluated this final 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 final 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: 
``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: * * * 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 final 
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 million or more (adjusted 
annually for inflation) [$140,800,000 or more in 2010] in any one year, 
and before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This final rule will not result in 
the expenditure, in the aggregate, of more than $140,800,000 or more 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 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That 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 final rule in accordance with Executive Order 
13211. FRA has determined that this final rule 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, State and local governments.

The Final Rule

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

PART 234--GRADE CROSSING SAFETY, INCLUDING SIGNAL SYSTEMS, STATE 
ACTION PLANS, AND EMERGENCY NOTIFICATION SYSTEMS

0
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, Secs. 202, 205; 28 U.S.C. 2461, 
note; and 49 CFR 1.49.

0
2. The heading for part 234 is revised to read as set forth above.

0
3. Section 234.1 is revised to read as follows:


Sec.  234.1  Scope.

    (a) This part prescribes minimum--
    (1) Maintenance, inspection, and testing standards for highway-rail 
grade crossing warning systems;
    (2) Standards for the reporting of failures of highway-rail grade 
crossing warning systems and for the actions that railroads must take 
when such systems malfunction;
    (3) Requirements for particular identified States to develop State 
highway-rail grade crossing action plans; and
    (4) Requirements that certain railroads establish systems for 
receiving toll-free telephone calls reporting various unsafe conditions 
at highway-rail grade crossings 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.

0
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 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

[[Page 35191]]

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 part 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 
part, shall perform that task in accordance with this part.

0
5. Section 234.5 is amended as follows:
0
a. Remove the definition of ``Credible report of system malfunction'' 
and add a definition of ``Credible report of warning system malfunction 
or credible report of warning system malfunction at a highway-rail 
grade crossing'' in its place.
0
b. Add definitions of ``FRA'' and ``Plant railroad'' in alphabetical 
order.
0
c. Remove the definition of ``Warning system malfunction'' and add a 
definition of ``Warning system malfunction or warning system 
malfunction at a highway-rail grade crossing'' in its place.
    The additions read as follows:


Sec.  234.5  Definitions.

* * * * *
    Credible report of warning system malfunction or credible report of 
warning system malfunction at a highway-rail grade crossing means a 
report that contains specific information regarding a malfunction of a 
highway-rail grade crossing warning system 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.
* * * * *
    FRA means the Office of Railroad Safety, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
* * * * *
    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.
* * * * *
    Warning system malfunction or warning system malfunction at a 
highway-rail grade crossing means an activation failure, a partial 
activation, or a false activation of a highway-rail grade crossing 
warning system.

0
6. The heading for subpart C of part 234 is revised to read as follows:

Subpart C--Response to Credible Reports of Warning System 
Malfunction at Highway-Rail Grade Crossings

0
7. A new subpart E to part 234 is added to read as follows:
Subpart E--Emergency Notification Systems for Telephonic Reporting of 
Unsafe Conditions at Highway-Rail and Pathway Grade Crossings
Sec.
234.301 Definitions.
234.303 Emergency notification systems for telephonic reporting of 
unsafe conditions at highway-rail and pathway grade crossings.
234.305 Remedial actions in response to reports of unsafe conditions 
at highway-rail and pathway grade crossings.
234.306 Multiple dispatching or maintaining railroads with respect 
to the same highway-rail or pathway grade crossing; appointment of 
responsible railroad.
234.307 Use of third-party telephone service by dispatching and 
maintaining railroads.
234.309 ENS signs in general.
234.311 ENS sign placement and maintenance.
234.313 Recordkeeping.
234.315 Electronic recordkeeping.
234.317 Compliance dates.

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


Sec.  234.301  Definitions.

    As used in this subpart--
    Answering machine means either a device or a voicemail system that 
allows a telephone caller to leave a recorded message to report an 
unsafe condition at a highway-rail or pathway grade crossing, as 
described in Sec.  234.303(c) and (d), and the railroad is able to 
retrieve the recorded message either remotely or on-site.
    Automated answering system means a type of answering system that 
directs a telephone caller to a single menu of options, where the 
caller has the choice to select one of the available options to report 
an unsafe condition at a highway-rail or pathway grade crossing, as 
described in Sec.  234.303(c) and (d), and immediately after selecting 
one of the available menu options, the caller is transferred to a live 
telephone operator.
    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).
    Dispatches a train or dispatches trains means dispatches or 
otherwise provides the authority for the movement of the train or 
trains through a highway-rail or pathway grade crossing.
    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 responds to telephonic reports of an 
unsafe condition at a highway-rail or pathway grade crossing. An 
Emergency Notification System includes the following components:
    (1) The signs, placed and maintained at the grade crossings that 
display the information necessary for the public to report an unsafe 
condition at the grade crossing to the dispatching railroad by 
telephone;
    (2) The method that the railroad uses to receive and process a 
telephone call reporting the unsafe condition;
    (3) The remedial actions that a railroad takes to address the 
report of the unsafe condition; and
    (4) The recordkeeping conducted by a railroad in response to the 
report of the unsafe condition at the grade crossing.

[[Page 35192]]

    ENS means Emergency Notification System as defined in this section.
    Farm grade crossing means a type of highway-rail grade crossing 
where a private roadway used for the movement of farm motor vehicles, 
farm machinery, or livestock in connection with agricultural pursuits, 
forestry, or other land-productive purposes crosses one or more 
railroad tracks at grade.
    Highway-rail and pathway grade crossing means a highway-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 entity (e.g., track owner or lessee) 
that is responsible for maintenance of the highway-rail or pathway 
grade crossing warning device, or for maintenance of other aspects of 
the highway-rail or pathway grade crossing. If the maintenance 
responsibility is handled by a contractor, such as maintaining a grade 
crossing warning system or track structure at the highway-rail or 
pathway grade crossing, then the contractor is considered the 
``maintaining railroad'' for the purposes of this subpart.
    Pathway grade crossing means a pathway that crosses one or more 
railroad tracks at grade and that is--
    (1) Explicitly authorized by a public authority or a railroad;
    (2) Dedicated for the use of non-vehicular traffic, including 
pedestrians, bicyclists, and others; and
    (3) Not associated with a public highway, road, or street, or a 
private roadway.
    Public report of warning system malfunction or public report of 
warning system malfunction at a highway-rail grade crossing means a 
report that contains specific information regarding a warning system 
malfunction at a highway-rail grade crossing that is supplied to a 
railroad via the ENS by a member of the public who does not belong to 
one of the categories of individuals listed in the definition of 
Credible report of warning system malfunction or credible report of 
warning system malfunction at a highway-rail grade crossing in Sec.  
234.5.
    Third-party telephone service means a service that receives 
telephonic reports of unsafe conditions at highway-rail and pathway 
grade crossings on behalf of a railroad. A third-party telephone 
service that receives reports on behalf of a dispatching railroad is 
the only entity between the receipt of the report from the telephone 
caller and the transmission of the report to the dispatching railroad. 
A third-party telephone service that receives reports on behalf of a 
maintaining railroad is the only entity between the receipt of the 
report from a dispatching railroad and the transmission of the report 
to the maintaining railroad.
    Warning system failure at a pathway grade crossing means failure of 
an active pathway grade crossing warning system to perform as intended.


Sec.  234.303  Emergency notification systems for telephonic reporting 
of unsafe conditions at highway-rail and pathway grade crossings.

    (a) Duty of dispatching railroad in general. Each railroad shall 
establish and maintain a toll-free telephone service by which the 
railroad can directly and promptly receive telephone calls from the 
public reporting specific information about any of the conditions 
listed in paragraph (c) of this section with respect to a highway-rail 
grade crossing and paragraph (d) of this section with respect to a 
pathway grade crossing through which the railroad dispatches a train, 
except as provided in paragraphs (b) and (e) of this section, and in 
Sec.  234.306(a). The dispatching railroad shall either have a live 
person answer calls directly and promptly, or use an automated 
answering system or a third-party telephone service for the purpose of 
receiving reports pursuant to this section, except as provided in 
paragraph (b) of this section.
    (b) Exceptions for certain railroads. If a dispatching railroad 
operates in accordance with either of the conditions set forth in this 
paragraph, the railroad is not subject to the general duties stated in 
the last sentence of paragraph (a) of this section.
    (1) If a railroad dispatches one or more trains through a highway-
rail or pathway grade crossing, each of which is authorized to travel 
through the crossing at speeds not greater than 20 miles per hour 
(mph), the railroad may use an answering machine to receive calls 
regarding unsafe conditions at such a crossing. If using an answering 
machine pursuant to this paragraph, the railroad must retrieve its 
messages immediately prior to the start of its operations each day.
    (2) If a railroad dispatches one or more trains through a highway-
rail or pathway grade crossing on a seasonal or intermittent basis 
(e.g., tourist, biweekly service, or non-24-hour service), and any of 
the trains is authorized to travel through the crossing at speeds 
greater than 20 mph, the railroad may use an answering machine to 
receive calls regarding unsafe conditions at such a crossing, but only 
during hours of non-operation. If using an answering machine pursuant 
to this paragraph (b), during periods of non-operation, the railroad 
must retrieve its messages daily. However, the railroad must retrieve 
its messages immediately prior to the start of its operations for the 
day, and during hours of operation the dispatching railroad shall 
either have a live person answer calls directly and promptly, use an 
automated answering system, or employ a third-party telephone service, 
in accordance with paragraph (a) of this section, to receive reports 
regarding unsafe conditions at crossings through which it dispatches 
trains.
    (c) Reportable unsafe conditions at highway-rail grade crossings. 
Each railroad shall establish a service pursuant to paragraph (a) of 
this section, except as provided in paragraphs (b) and (e) of this 
section, and in Sec.  234.306(a), to receive telephone calls 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.
    (d) Reportable unsafe conditions at pathway grade crossings. Each 
railroad shall establish a service pursuant to paragraph (a) of this 
section, except as provided in paragraphs (b) and (e) of this section, 
and in Sec.  234.306(a), to receive telephone calls 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;
    (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.
    (e) Class II or Class III railroads. A Class II or Class III 
railroad that dispatches one or more trains 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 than if 
a toll-free number were used, may use

[[Page 35193]]

that non-toll-free number to receive calls pursuant to paragraph (a) of 
this section regarding each such crossing in that area.
    (f) Reports not made through the ENS. If a report of an unsafe 
condition at a highway-rail or pathway grade crossing is not made 
through the telephone service described in paragraph (a) of this 
section, this subpart E does not apply to that report.


Sec.  234.305  Remedial actions in response to reports of unsafe 
conditions at highway-rail and pathway grade crossings.

    (a) General rule on response to credible report of warning system 
malfunction at a highway-rail grade crossing. (1) If a railroad 
receives a credible report of a warning system malfunction at a 
highway-rail grade crossing pursuant to Sec.  234.303(c)(1) and the 
railroad has maintenance responsibility for the warning system to which 
the report pertains, then it shall take the appropriate action required 
by subpart C of this part.
    (2) If a railroad receives a credible report of a warning system 
malfunction at a highway-rail grade crossing pursuant to Sec.  
234.303(c)(1) and the railroad has dispatching responsibility for the 
crossing, but does not have maintenance responsibility for the warning 
system to which the report pertains, it shall promptly contact all 
trains that are authorized to operate through the highway-rail grade 
crossing in an effort to notify the train crews of the reported 
malfunction prior to each train's arrival at the crossing. After 
contacting the appropriate trains, the railroad shall then promptly 
contact the maintaining railroad and inform it of the reported 
malfunction. The maintaining railroad shall then take the appropriate 
action required by subpart C of this part.
    (b) General rule on response to public report of warning system 
malfunction at a highway-rail grade crossing. (1) If a railroad 
receives a public report of a warning system malfunction at a highway-
rail grade crossing pursuant to Sec.  234.303(c)(1) and the railroad 
has maintenance responsibility for the warning system to which the 
report pertains, the railroad shall promptly contact all trains that 
are authorized to operate through the highway-rail grade crossing in an 
effort to notify the train crews of the reported malfunction prior to 
each train's arrival at the crossing. After contacting the appropriate 
trains, the railroad shall then 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, determine the nature of the malfunction and 
take the appropriate action required by Sec.  234.207.
    (2) If a railroad receives a public report of a warning system 
malfunction at a highway-rail grade crossing warning system pursuant to 
Sec.  234.303(c)(1) and the railroad does not have maintenance 
responsibility for the warning system at the highway-rail grade 
crossing, it shall promptly contact all trains that are authorized to 
operate through the highway-rail grade crossing to which the report 
pertains in an effort to notify the train crews of the reported 
malfunction prior to each train's arrival at the crossing. After 
contacting the appropriate trains, the railroad shall then 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 maintaining railroad and 
inform it of the reported malfunction. The maintaining railroad shall 
then promptly investigate the report, determine the nature of the 
malfunction, and take the appropriate action required by Sec.  234.207.
    (c) General rule on response to report of warning system failure at 
a pathway grade crossing. (1) If a railroad receives a report of a 
warning system failure at a pathway grade crossing pursuant to Sec.  
234.303(d)(1) and the railroad has maintenance responsibility for the 
warning system to which the report pertains, the railroad shall 
promptly contact all trains that are authorized to operate through the 
pathway grade crossing in an effort to notify the train crews of the 
reported failure prior to each train's arrival at the crossing. After 
contacting the appropriate trains, the railroad shall then 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, determine the nature of the failure, 
and without undue delay 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(d)(1), but does not 
have maintenance responsibility for the warning system to which the 
report pertains, the railroad shall promptly contact all trains that 
are authorized to operate through the pathway grade crossing to which 
the report pertains in an effort to notify the train crews of the 
reported failure prior to each train's arrival at the crossing. After 
contacting the appropriate trains, the railroad shall then 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 maintaining railroad and inform it of the reported 
failure. The maintaining railroad shall then promptly investigate the 
report, determine the nature of the failure, and without undue delay 
repair the warning system if necessary.
    (d) General rule on response to report of a disabled vehicle or 
other obstruction blocking a railroad track at a highway-rail or 
pathway grade crossing. (1) If a railroad receives a report of a 
disabled vehicle or other obstruction blocking a railroad track at a 
highway-rail or pathway grade crossing, pursuant to Sec.  234.303(c)(2) 
or (d)(2), and the railroad has maintenance responsibility for the 
crossing to which the report pertains, the railroad shall promptly 
contact all trains that are authorized to operate through the crossing 
in an effort to notify the train crews of the reported obstruction 
prior to each train's arrival at the crossing. After contacting the 
appropriate trains, the railroad shall then promptly contact the law 
enforcement agency having jurisdiction over the crossing to provide it 
with the information necessary to assist in the removal of the reported 
track obstruction or to carry out other activities to maintain safety 
at the crossing. The railroad shall then promptly investigate the 
report, determine the nature of the obstruction, and without undue 
delay take the necessary action to have the obstruction removed.
    (2) If a railroad receives a report of a disabled vehicle or other 
obstruction blocking a railroad track at a highway-rail or pathway 
grade crossing, pursuant to Sec.  234.303(c)(2) or (d)(2), but does not 
have maintenance responsibility for the crossing to which the report 
pertains, the railroad shall promptly contact all trains that are 
authorized to operate through the crossing to which the report pertains 
in an effort to notify the train crews of the reported obstruction 
prior to each train's arrival at the crossing. After contacting the 
appropriate trains, the railroad shall then promptly contact

[[Page 35194]]

the law enforcement agency having jurisdiction over the crossing to 
provide it with the information necessary to assist in the removal of 
the reported track obstruction or to carry out other activities to 
maintain safety at the crossing. The railroad shall then promptly 
contact the maintaining railroad and inform it of the reported 
obstruction. The maintaining railroad shall then promptly investigate 
the report, determine the nature of the obstruction, and without undue 
delay take the necessary action to have the obstruction removed.
    (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 railroad receives a report pursuant to Sec.  234.303(c)(1), 
(c)(2), (d)(1), or (d)(2) about a highway-rail or pathway crossing that 
any of the trains is authorized to operate through, the railroad shall 
promptly contact the occupied controlling locomotive of the train as 
required by paragraph (a), (b), (c), or (d) of this Sec.  234.305 by 
the quickest means available consistent with Sec.  220.13(a) of this 
chapter.
    (f) General rule on response to report of an obstruction of view at 
a highway-rail or pathway grade crossing. (1) Upon receiving a report 
pursuant to Sec.  234.303(c)(3) or (d)(3), the railroad, if it is both 
the dispatching and the maintaining railroad, shall timely investigate 
the report and remove the obstruction if it is lawful and feasible to 
do so.
    (2) If the dispatching railroad is not also the maintaining 
railroad, it shall promptly contact the maintaining railroad, which 
shall timely investigate the report and remove the obstruction if it is 
lawful and feasible to do so.
    (g) General rule on response to report of other unsafe condition at 
a highway-rail or pathway grade crossing. Upon receiving a report 
pursuant to Sec.  234.303(c)(4) or (d)(4) related to the maintenance of 
a crossbuck sign or other similar grade crossing safety device or any 
other unsafe condition (such as a pot hole that could cause injury or 
damage) not covered by paragraph (a), (b), or (c) of this Sec.  
234.305, the railroad, if it is both the dispatching and the 
maintaining railroad, shall timely investigate the report; and, if the 
railroad finds that the unsafe condition exists, it shall timely 
correct it if it is lawful and feasible to do so. If the dispatching 
railroad is not also the maintaining railroad, it shall timely inform 
the maintaining railroad, which shall timely investigate the report; 
and, if the maintaining railroad finds that the unsafe condition 
exists, it shall timely correct it if it is lawful and feasible to do 
so.
    (h) General rule on a maintaining railroad's responsibilities for 
receiving reports of unsafe conditions at highway-rail and pathway 
grade crossings. (1) In general. If the dispatching railroad is 
required under this section to contact the maintaining railroad, the 
maintaining railroad shall--
    (i) Provide the dispatching railroad with sufficient contact 
information by which the dispatching railroad may timely contact the 
maintaining railroad upon receipt of a report; and
    (ii) Have either a live person answer calls directly and promptly, 
or use an automated answering system for the purpose of receiving a 
call from the dispatching railroad of a report of an unsafe condition, 
except as provided in paragraph (h)(2) of this section.
    (2) Exceptions for use of a third-party telephone service and 
answering machine by a maintaining railroad. (i) If a maintaining 
railroad is responsible for the maintenance of a highway-rail or 
pathway grade crossing through which a railroad dispatches one or more 
trains, each of which is authorized to travel through the crossing at 
speeds not greater than 20 mph, the maintaining railroad may use a 
third-party telephone service, in accordance with Sec.  234.307, or an 
answering machine to receive reports from a dispatching railroad of 
unsafe conditions at such a crossing. If using an answering machine 
pursuant to this paragraph, the railroad must retrieve its messages 
immediately prior to the start of its operations for the day.
    (ii) If a maintaining railroad is responsible for the maintenance 
of a highway-rail or pathway grade crossing only on a seasonal or 
intermittent basis (e.g., tourist, biweekly service, or non-24-hour 
service), the maintaining railroad may use a third-party telephone 
service, in accordance with Sec.  234.307, or an answering machine to 
receive reports from a dispatching railroad of unsafe conditions at 
such a crossing. If using an answering machine pursuant to this 
paragraph, during periods of non-operation, the maintaining railroad 
must retrieve its messages daily. However, the railroad must retrieve 
its messages immediately prior to the start of its operations for the 
day, and during hours of operation the railroad shall either have a 
live person answer calls directly or use an automated answering system 
to receive reports regarding unsafe conditions at such a crossing.


Sec.  234.306  Multiple dispatching or maintaining railroads with 
respect to the same highway-rail or pathway grade crossing; appointment 
of responsible railroad.

    (a) Duty of multiple dispatching railroads to appoint a primary 
dispatching railroad for the crossing. (1) Where more than one railroad 
dispatches a train through the same highway-rail or pathway grade 
crossing, the dispatching railroads for the crossing shall appoint one 
of the railroads to be the primary dispatching railroad for the 
crossing and, as such, the primary dispatching railroad for the 
crossing shall do the following:
    (i) Provide its emergency telephone number to the railroad 
responsible for the placement and maintenance of the ENS sign(s) at the 
crossing;
    (ii) Receive all reports through ENS of unsafe conditions at the 
crossing as required by Sec.  234.303;
    (iii) After receiving a report of an unsafe condition at the 
crossing, promptly contact all other railroads that dispatch trains 
through the crossing to warn them of the reported unsafe condition, 
and, as appropriate, promptly contact the maintaining railroad(s) for 
the crossing as required by Sec.  234.305; and
    (iv) Otherwise carry out its duties under this subpart as a 
dispatching railroad for the crossing, with respect to the crossing.
    (2) After receiving a report of an unsafe condition at the crossing 
from the appointed dispatching railroad, each of the other dispatching 
railroad(s) to which the report pertains shall carry out the remedial 
action required by Sec.  234.305 and the recordkeeping required by 
Sec.  234.313.
    (b) Duty of multiple maintaining railroads to appoint a railroad 
responsible for the placement and maintenance of the ENS sign(s). (1) 
Where more than one railroad maintains the same crossing, the 
maintaining railroads for the crossing shall appoint one of the 
railroads to be responsible for the placement and maintenance of the 
ENS sign(s) at the crossing pursuant to Sec. Sec.  234.309 and 234.311.
    (2) The railroad appointed under paragraph (b)(1) of this section 
shall display on the ENS sign(s) at the crossing the emergency 
telephone number of the dispatching railroad for the crossing or, if 
more than one railroad dispatches a train through the crossing, the 
emergency telephone number of the primary dispatching railroad for the 
crossing identified under paragraph (a) of this section.
    (c) Duty of multiple maintaining railroads with respect to remedial 
action

[[Page 35195]]

at the crossing. Where there are multiple maintaining railroads for a 
crossing, the dispatching railroad (or, if more than one railroad 
dispatches a train through the crossing, the primary dispatching 
railroad for the crossing under paragraph (a) of this section) upon 
receipt of a report of an unsafe condition, shall promptly contact and 
inform the appropriate maintaining railroad(s) for the crossing of the 
reported problem. After each maintaining railroad for the crossing 
receives a report of an unsafe condition at the crossing that pertains 
to its maintenance responsibilities for the crossing, the maintaining 
railroad shall carry out the remedial action required by Sec.  234.305 
and the recordkeeping required by Sec.  234.313.


Sec.  234.307  Use of third-party telephone service by dispatching and 
maintaining railroads.

    (a) General use of a third-party telephone service by a dispatching 
railroad. A dispatching railroad may use a third-party telephone 
service to receive reports of unsafe conditions at highway-rail and 
pathway grade crossings pursuant to Sec.  234.303. If a dispatching 
railroad chooses to use a third-party telephone service, the third-
party telephone service shall be reached directly and promptly by the 
telephone number displayed on the ENS sign pursuant to Sec.  234.309. 
The third-party telephone service may use an automated answering system 
for the purpose of receiving such reports. The dispatching railroad 
shall have a live person answer calls directly and promptly from the 
third-party telephone service, unless permitted pursuant to Sec.  
234.303(b) to use an answering machine. The dispatching railroad shall 
ensure that the third-party telephone service complies with the 
applicable requirements of Sec.  234.307.
    (b) General use of a third-party telephone service by a maintaining 
railroad. Pursuant to Sec.  234.305(h)(2), a maintaining railroad that 
either maintains a highway-rail or pathway grade crossing on a seasonal 
or intermittent basis (e.g., tourist, biweekly service, or non-24 hours 
service), or a crossing through which a railroad dispatches one or more 
trains, each of which is authorized to travel through the crossing at 
speeds not greater than 20 mph, may use a third-party telephone service 
to receive reports of unsafe conditions at such a crossing from a 
dispatching railroad. The third-party telephone service may use an 
automated answering system for the purpose of receiving such reports. 
The maintaining railroad shall receive reports from the third-party 
telephone service by either having a live person answer calls directly 
and promptly, or using an answering machine. If using an answering 
machine pursuant to this paragraph, the railroad must use the answering 
machine in accordance with Sec.  234.305(h)(2). The maintaining 
railroad shall ensure that the third-party telephone service complies 
with the applicable requirements of Sec.  234.307.
    (c) Duties of third-party telephone service in contacting 
dispatching and maintaining railroads. Upon receiving a report pursuant 
to Sec. Sec.  234.303 or 234.305, on behalf of either the dispatching 
railroad or maintaining railroad, respectively, the third-party 
telephone service shall immediately contact the railroad, and, at a 
minimum, provide it with the following information:
    (1) The nature of the reported unsafe condition;
    (2) The location of the unsafe condition, including the U.S. DOT 
National Crossing Inventory number for the crossing;
    (3) 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;
    (4) The date and time that the report was received by the third-
party telephone service; and
    (5) Any additional information provided by the caller that may be 
useful to restore the crossing to a safe condition.
    (d) Duties of railroad using third-party telephone service. If a 
dispatching or maintaining railroad uses a third-party telephone 
service to receive reports of unsafe conditions at a highway-rail or 
pathway grade crossing, the railroad shall--
    (1) Provide the third-party telephone service with sufficient 
contact information by which the third-party telephone service may 
immediately contact the railroad upon receipt of a report;
    (2) Inform FRA in writing, before the implementation of such a 
service, of the railroad's intent to use a third-party telephone 
service, and provide FRA with contact information for the third-party 
telephone service and information identifying the highway-rail and 
pathway grade crossings about which the third-party telephone service 
will receive reports;
    (3) Inform FRA in writing within 30 days following any changes in 
the use or discontinuance of a third-party telephone service; and
    (4) Take appropriate action required by Sec.  234.305, upon being 
contacted by the third-party telephone service about a report.
    (e) Third-party telephone service and railroad responsibilities. If 
a railroad uses a third-party telephone service to receive reports 
pursuant to Sec. Sec.  234.303 or 234.305, the third-party telephone 
service is responsible for carrying out the duties of this section and 
recordkeeping duties under Sec.  234.313, and, if applicable under 
Sec.  234.315. In addition, the railroad remains responsible for any 
acts or omissions of the third-party telephone service it utilizes that 
violate the provisions of this section or the recordkeeping 
requirements under Sec.  234.313, and, if applicable under Sec.  
234.315.


Sec.  234.309  ENS signs in general.

    (a) Provision of information. If the dispatching railroad and the 
maintaining railroad(s) are not the same entity, the dispatching 
railroad for a highway-rail or pathway grade crossing shall provide to 
the maintaining railroad the telephone number that is to be displayed 
on the ENS sign at the crossing, not later than 180 calendar days 
before the date that implementation of an ENS is required.
    (b) Information to be displayed. Each ENS sign located at each 
highway-rail or pathway grade crossing as required by Sec.  234.311 
shall display the necessary information for the dispatching railroad to 
receive reports of unsafe conditions at the crossing. This information, 
at a minimum, includes the following:
    (1) The toll-free telephone number (or non-toll-free telephone 
number as provided for in Sec.  234.303(e)) established to receive 
reports pursuant to Sec.  234.303(a);
    (2) An explanation of the purpose of the sign (e.g., ``Report 
emergency or problem to ----''); and
    (3) The U.S. DOT National Crossing Inventory number assigned to 
that crossing.
    (c) Sign size and other physical features. Each ENS sign shall--
    (1) Measure at least 12 inches wide by 9 inches high;
    (2) Be retroreflective;
    (3) Have legible text (i.e., letters and numerals) with a minimum 
character height of 1 inch for the information required in paragraph 
(b) of this section; and
    (4) Have white text set on a blue background with a white border, 
except that the U.S. DOT National Crossing Inventory number may be 
black text set on a white rectangular background.


Sec.  234.311  ENS sign placement and maintenance.

    (a) Number of signs at highway-rail or pathway grade crossing. (1) 
In general.

[[Page 35196]]

The maintaining railroad, or the railroad appointed pursuant to Sec.  
234.306(b), for a highway-rail or pathway grade crossing shall place 
and maintain a sign on each approach to the crossing that conforms to 
Sec.  234.309, except as provided in paragraph (a)(2) of this section.
    (2) Exceptions. (i) At a farm grade crossing, the responsible 
railroad shall place and maintain a minimum of one sign that conforms 
to Sec.  234.309 at the crossing.
    (ii) At a railroad yard, port or dock facility, or a private 
industrial facility that does not meet the definition of ``plant 
railroad'' in Sec.  234.5, the responsible railroad shall place and 
maintain a minimum of one sign at each vehicular entrance to the 
facility in accordance with Sec.  234.309, in lieu of placing signs at 
each crossing within the yard, port or dock facility, or private 
industrial facility. Each sign must be placed so that it is clearly 
visible to a driver of a motor vehicle located at the vehicular 
entrance to the facility.
    (b) Placement of sign(s). (1) Each sign required by paragraph (a) 
of this section must be located at the crossing, except as provided in 
paragraph (a)(2)(ii) of this section, and maintained by the responsible 
railroad so that the sign--
    (i) Is conspicuous to users of the roadway or pathway by day and 
night;
    (ii) Does not obstruct any other sign or traffic control device at 
the crossing;
    (iii) Does not limit the view of a train approaching the highway-
rail or pathway grade crossing; and
    (iv) If mounted on a post, has supports that are crashworthy (i.e., 
breakaway or yielding).
    (2) A sign placed on the signal bungalow does not comply with 
paragraph (b)(1)(i) of this section.


Sec.  234.313  Recordkeeping.

    (a) In general. Each railroad subject to this subpart shall keep 
records in accordance with this section. 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 dispatching railroad responsible 
for receiving reports pursuant to Sec.  234.303(a), each third-party 
telephone service responsible for receiving reports pursuant to Sec.  
234.307, and, if applicable, each maintaining railroad shall keep, at a 
minimum, the following information for each report received under this 
subpart:
    (1) The nature of the reported unsafe condition;
    (2) The location of the highway-rail or pathway grade crossing, by 
highway name, if applicable, and the U.S. DOT National Crossing 
Inventory number.
    (3) The time and date of receipt of the report by the railroad;
    (4) If applicable, 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 resolving the reported 
unsafe condition at the grade crossing (e.g., warning train crews, 
notifying the maintaining railroad, or contacting law enforcement or 
other public authorities);
    (6) If the reported unsafe condition is substantiated, actions 
taken by the railroad to remedy the reported unsafe condition, if 
lawful and feasible;
    (7) The time and date when the reported unsafe condition was 
remedied;
    (8) If no remedial action was taken, the reason why; and
    (9) If a dispatching railroad, in accordance with Sec.  234.305, is 
required to contact a maintaining railroad, the time and date when it 
contacted the maintaining railroad.
    (b) Records of credible reports of warning system malfunction. A 
railroad that has maintenance responsibility over warning devices at a 
highway-rail grade crossing and maintains records pursuant to Sec.  
234.109, shall be deemed to comply with the recordkeeping requirements 
of this subpart with regard to credible reports of warning system 
malfunctions.
    (c) Records involving multiple dispatching or maintaining 
railroads. (1) Where multiple railroads dispatch trains through the 
same highway-rail or pathway grade crossing and appoint one railroad to 
receive telephonic reports regarding unsafe conditions at such 
crossings pursuant to Sec.  234.306, the appointment must be recorded 
in writing and a copy of the document retained by each railroad for the 
duration of the appointment or for one year, whichever period is 
longer.
    (2) Where multiple railroads have maintenance responsibility for 
the same highway-rail or pathway grade crossing and they appoint one 
railroad to be responsible for installing and maintaining the ENS 
sign(s) at the crossing pursuant to Sec.  234.306, the appointment must 
be recorded in writing and a copy of the document retained by each 
railroad for the duration of the appointment or for one year, whichever 
period is longer.
    (d) Record retention period; records availability. 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 paragraphs (a) and (b) of this section. Records 
required to be kept under this subpart shall be made available to FRA 
as provided by 49 U.S.C. 20107.


Sec.  234.315  Electronic recordkeeping.

    (a) If a railroad subject to this subpart maintains records 
required by this subpart in electronic format in lieu of on paper, the 
system for keeping the electronic records must meet all of the 
following conditions:
    (1) The railroad adequately limits and controls accessibility to 
the records 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(s) for inspection and copying during normal business 
hours and provides a printout of such record(s) upon request.
    (b) If a record required by this subpart 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) Railroads without an ENS of any kind. If a railroad subject to 
this subpart does not have an ENS of any kind in place on August 13, 
2012, the railroad shall implement an ENS that conforms to this subpart 
no later than September 1, 2015.
    (b) Railroads with nonconforming ENS telephone service. If a 
railroad subject to this subpart already has its own ENS telephone 
service or is using a third-party ENS telephone service, and that 
telephone service does not conform to the requirements in Sec.  234.303 
or Sec.  234.307, respectively, on August 13, 2012, the railroad shall 
comply with Sec.  234.303 or Sec.  234.307, respectively, no later than 
March 1, 2014.
    (c) Railroads with ENS signs of nonconforming size. (1) If a 
railroad subject to this subpart already has ENS signs in place, and 
those signs do not conform to the requirements in

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Sec.  234.309 on August 13, 2012, the railroad's ENS signs shall 
conform to Sec.  234.309 no later than as required below:
    (i) If the railroad's sign size is greater than or equal to 60 
square inches and the height of the lettering on the sign is greater 
than or equal to \3/4\ inch for the information required in Sec.  
234.309(b) on August 13, 2012, the railroad may maintain the sign for 
its useful life.
    (ii) If the railroad's sign size is greater than or equal to 60 
square inches but the height of the lettering is less than \3/4\ inch 
for the information required in Sec.  234.309(b) on August 13, 2012, 
the railroad's sign must conform to Sec.  234.309 no later than 
September 1, 2017.
    (iii) If the railroad's sign size is less than 60 square inches, 
regardless of the height of the lettering for the information required 
in Sec.  234.309(b), on August 13, 2012, the railroad's sign must 
conform to Sec.  234.309 no later than September 1, 2015.
    (2) If the railroad chooses to replace an ENS sign of non-
conforming size before the applicable compliance date stated, the 
railroad shall replace that sign with a sign that conforms to Sec.  
234.309.
    (d) Railroads with ENS signs having nonconforming placement. If a 
railroad subject to this subpart already has ENS signs in place, and 
the placement of those signs does not conform to the requirements in 
Sec.  234.311 on August 13, 2012, the placement of the railroad's ENS 
signs shall conform to Sec.  234.311 no later than September 1, 2017. 
If a railroad changes the placement of the sign before September 1, 
2017, the placement of the sign must conform to Sec.  234.311. If a 
railroad replaces a sign before September 1, 2017, so that the sign 
conforms to Sec.  234.309, and the placement of that sign does not 
conform to Sec.  234.311, the railroad shall also change the placement 
of the sign so that it conforms to Sec.  234.311.
    (e) Railroads with nonconforming ENS recordkeeping. If a railroad 
subject to this subpart already conducts recordkeeping as part of its 
ENS, 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 September 1, 2013.

    Issued in Washington, DC, on June 1, 2012.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2012-13843 Filed 6-11-12; 8:45 am]
BILLING CODE 4910-06-P


