
[Federal Register Volume 80, Number 102 (Thursday, May 28, 2015)]
[Rules and Regulations]
[Pages 30364-30367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12775]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2009-0041-N-4]

49 CFR Part 234

RIN 2130-AC50


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: The purpose of this document is to update the current schedule 
of civil penalties for violations of FRA's grade crossing safety 
regulations by adding recommended civil penalty amounts for violations 
of specific requirements contained in a recently added subpart. That 
subpart prescribes requirements that certain railroads establish 
emergency notification systems (ENS) 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.

DATES: Effective May 28, 2015.

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: FRA is revising the penalty schedule at 
appendix A to 49 CFR part 234 to add recommended civil penalty amounts 
for violations of specific requirements contained in subpart E, 
Emergency Notification Systems [ENS] for Telephonic Reporting of Unsafe 
Conditions at Highway-Rail and Pathway Grade Crossings. (See FRA's 
final rule published on June 12, 2012, 77 FR 35164; March 15, 2013, 78 
FR 16414.) The recommended civil penalties are for violations related 
to the various requirements of an ENS, which includes the: (1) Sign(s) 
placed at the grade crossing that display the information necessary for 
the public to report an unsafe condition to the appropriate railroad; 
(2) method the railroad uses to receive and process a telephone call 
reporting the unsafe condition; (3) remedial action the appropriate 
railroad or railroads take to address the report of the unsafe 
conditions; and (4) recordkeeping conducted by the railroad(s).
    Under authority delegated from the Secretary of Transportation, FRA 
adds these recommended penalty amounts to the penalty schedule 
consistent with the requirements of 49 U.S.C. 21301(a)(2), which 
provides, in pertinent part, that:

[t]he Secretary of Transportation shall include in, or make 
applicable to, each regulation prescribed . . . under chapter 201 of 
this title a civil penalty for a violation. * * * The amount of the 
penalty shall be at least $500 but not more than $25,000. However, 
when a grossly negligent violation or a pattern of repeated 
violations has caused an imminent hazard of death or injury to 
individuals, or has caused death or injury, the amount may be not 
more than $100,000.

See delegation from the Secretary to the Administrator of FRA at 49 CFR 
1.89(a).
    Under the separate authority of the Federal Civil Penalties 
Inflation Adjustment Act of 1990 as amended, FRA has periodically 
adjusted for inflation the amounts of the minimum, ordinary maximum, 
and aggravated maximum civil penalties for a violation of this part. 
Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by 
Section 31001(s)(1) of the Debt Collection Improvement Act of 1996, 
Public Law 104-134, 110 Stat. 1321-373, April 26, 1996. Currently, the 
minimum penalty is $650, the ordinary maximum civil penalty is $25,000; 
and the aggravated maximum civil penalty is $105,000. See, e.g., 73 FR 
76704, Dec. 30, 2008; 77 FR 24422, Apr. 24, 2012. As provided for in 
footnote 1 to appendix A, the Administrator specifically reserves the 
authority to assess the maximum penalty of $105,000 for any specific 
violation if the circumstances of the particular violation warrant.
    After FRA issues a civil penalty against an entity, FRA may adjust 
or compromise the amount of the civil penalty based on a wide variety 
of mitigating factors, which include: (1) The nature, circumstances, 
extent, and gravity of the violation; (2) with respect to the entity, 
the degree of culpability, any history of violations, the ability to 
pay, and any effect on the ability to continue to do business; and (3) 
other matters that justice requires. 49 U.S.C. 21301(a)(3).
    FRA's revision of appendix A is a general statement of policy under 
5 U.S.C. 553(b)(3)(A). Consequently, notice and an opportunity for 
comment are not required, and this amendment is made effective upon 
publication.

List of Subjects in 49 CFR Part 234

    Highway safety, Penalties, Railroad safety, Reporting and 
recordkeeping requirements, State and local governments.

    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

0
1. The authority citation for part 234 continues to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20152, 20160, 21301, 21304, 
21311, 22501 note; Pub. L. 110-432, Div. A., Sec. 202; 28 U.S.C. 
2461, note; and 49 CFR 1.89.

0
2. Amend appendix A to part 234 by:
0
a. Adding, after the end of the entry for subpart D, an entry for 
subpart E;
0
b. Revising footnote 1; and
0
c. Adding footnotes 2, 3, 4, 5, 6, and 7, to read as follows:

[[Page 30365]]



         Appendix A to Part 234--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
 
                              * * * * * * *
Subpart E--Emergency Notification
 Systems for Telephonic Reporting of
 Unsafe Conditions at Highway-Rail and
 Pathway Grade Crossings
 234.303 Emergency notification systems
 (ENS) for telephonic reporting of
 unsafe conditions at highway-rail and
 pathway grade crossings:
    (a) Dispatching railroad fails to             15,000          25,000
     establish and maintain a toll-free
     telephone service by which the
     railroad can directly and promptly
     receive telephone calls (calls)
     from the public of reports of
     unsafe conditions at crossings.....
    (a)(1) Dispatching railroad fails to          10,000          15,000
     have either a live person answer
     calls directly and promptly, or use
     an automated answering system or
     third-party telephone service for
     receiving calls from the public of
     reports of unsafe conditions at
     crossings..........................
    (a)(2) Dispatching railroad                   10,000          15,000
     improperly uses an automated
     answering system...................
    (b)(1)-(2) Excepted dispatching                5,000           7,500
     railroad improperly uses answering
     machine to receive calls of unsafe
     conditions at crossings............
    (b)(2) Excepted dispatching railroad           5,000           7,500
     fails to use proper method to
     receive calls of unsafe conditions
     at crossings during either
     operational or non-operational
     hours..............................
    (e) Dispatching railroad improperly            5,000           7,500
     uses local telephone number to
     receive calls of unsafe conditions
     at crossings.......................
 234.305 Remedial actions in response to
 reports of unsafe conditions at highway-
 rail and pathway grade crossings:
Response to credible report of warning
 system malfunction at a highway-rail
 grade crossing.
    (a)(1) Maintaining railroad fails              5,000           7,500
     under subpart C to follow subpart C
     of this part \2\...................
    (a)(2)(i) Dispatching railroad fails           5,000           7,500
     to promptly contact all trains
     authorized to operate through the
     crossing and inform them of the
     reported malfunction...............
    (ii) Dispatching railroad fails to             5,000           7,500
     promptly contact the maintaining
     railroad and inform it of the
     reported malfunction...............
Response to public report of warning
 system malfunction at a highway-rail
 grade crossing.
    (b)(1)(i) Railroad with both                   5,000           7,500
     maintaining and dispatching
     responsibilities fails to promptly
     contact all trains authorized to
     operate through the crossing and
     inform them of the reported
     malfunction........................
    (ii) Railroad with both maintaining            5,000           7,500
     and dispatching responsibilities
     fails to promptly contact the
     appropriate law enforcement agency
     and inform it of the reported
     malfunction........................
    (iii) Railroad with both maintaining           5,000           7,500
     and dispatching responsibilities
     fails to promptly investigate the
     report, determine the nature of the
     malfunction, and take the
     appropriate remedial action........
    (b)(2)(i) Railroad with only                   5,000           7,500
     dispatching responsibility fails to
     promptly contact all trains
     authorized to operate through the
     crossing and inform them of the
     reported malfunction...............
    (ii) Railroad with only dispatching            5,000           7,500
     responsibility fails to promptly
     contact the appropriate law
     enforcement agency and inform it of
     the reported malfunction...........
    (iii) Railroad with only dispatching           5,000           7,500
     responsibility fails to promptly
     contact the maintaining railroad
     and inform it of the reported
     malfunction........................
    (iv) Maintaining railroad fails to             5,000           7,500
     promptly investigate the report,
     determine the nature of the
     malfunction, and take the
     appropriate remedial action........
Response to report of warning system
 failure at a pathway grade crossing.
    (c)(1)(i) Railroad with both                   5,000           7,500
     maintaining and dispatching
     responsibilities fails to promptly
     contact all trains authorized to
     operate through the crossing and
     inform them of the reported failure
    (ii) Railroad with both maintaining            5,000           7,500
     and dispatching responsibilities
     fails to promptly contact the
     appropriate law enforcement agency
     and inform it of the reported
     failure............................
    (iii) Railroad with both maintaining           5,000           7,500
     and dispatching responsibilities
     fails to promptly investigate the
     report, determine the nature of the
     failure, and without undue delay
     repair the active warning system if
     necessary..........................
(c)(2)(i) Railroad with only dispatching           5,000           7,500
 responsibility fails to promptly
 contact all trains authorized to
 operate through the crossing and inform
 them of the reported failure...........
    (ii) Railroad with only dispatching            5,000           7,500
     responsibility fails to promptly
     contact the appropriate law
     enforcement agency and inform it of
     the reported failure...............
    (iii) Railroad with only dispatching           5,000           7,500
     responsibility fails to promptly
     contact the maintaining railroad
     and inform it of the reported
     failure............................
    (iv) Maintaining railroad fails to             5,000           7,500
     promptly investigate the report,
     determine the nature of the
     failure, and without undue delay
     repair the active warning system if
     necessary..........................
Response to report of a disabled vehicle
 or other obstruction blocking a
 railroad track at a highway-rail or
 pathway grade crossing.
    (d)(1)(i) Railroad with both                   5,000           7,500
     maintaining and dispatching
     responsibilities fails to promptly
     contact all trains authorized to
     operate through the crossing and
     inform them of the reported
     obstruction........................
    (ii) Railroad with both maintaining            5,000           7,500
     and dispatching responsibilities
     fails to promptly contact the
     appropriate law enforcement agency
     and inform it of the reported
     obstruction........................
    (iii) Railroad with both maintaining           5,000           7,500
     and dispatching responsibilities
     fails to promptly investigate the
     report, determine the nature of the
     obstruction, and without undue
     delay take the necessary action to
     have the obstruction removed.......
    (d)(2)(i) Railroad with only                   5,000           7,500
     dispatching responsibility fails to
     promptly contact all trains
     authorized to operate through the
     crossing and inform them of the
     reported obstruction...............
    (ii) Railroad with only dispatching            5,000           7,500
     responsibility fails to promptly
     contact the appropriate law
     enforcement agency and inform it of
     the reported obstruction...........

[[Page 30366]]

 
    (iii) Railroad with only dispatching           5,000           7,500
     responsibility fails to promptly
     contact the maintaining railroad
     and inform it of the reported
     obstruction........................
    (iv) Maintaining railroad fails to             5,000           7,500
     promptly investigate the report,
     determine the nature of the
     obstruction, and without undue
     delay take the necessary action to
     have the obstruction removed.......
Special rule on contacting a train that
 is not required to have communication
 equipment.
    (e) Having received a report                   5,000           7,500
     pursuant to Sec.   234.303(c)(1),
     (c)(2), (d)(1), or (d)(2), railroad
     fails to promptly contact the
     occupied controlling locomotive of
     the train by the quickest means
     available consistent with Sec.
     220.13(a) of this chapter..........
Response to report of an obstruction of
 view at a highway-rail or pathway grade
 crossing.
    (f)(1) Railroad with both                      5,000           7,500
     maintaining and dispatching
     responsibilities fails to timely
     investigate the report and remove
     the obstruction if it is lawful and
     feasible to do so..................
    (f)(2)(i) Railroad with only                   5,000           7,500
     dispatching responsibility fails to
     promptly contact the maintaining
     railroad...........................
    (ii) Maintaining railroad fails to             5,000           7,500
     timely investigate the report and
     remove the obstruction if it is
     lawful and feasible to do so.......
Response to report of other unsafe
 condition at a highway-rail or pathway
 grade crossing.
    (g)(1) Railroad with both                      5,000           7,500
     maintaining and dispatching
     responsibilities fails to timely
     investigate the report, and timely
     correct the unsafe condition if it
     is lawful and feasible to do so....
    (g)(2) Railroad with only                      5,000           7,500
     dispatching responsibility fails to
     promptly contact the maintaining
     railroad...........................
    (g)(3) Maintaining railroad fails to           5,000           7,500
     timely investigate the report, and
     timely correct the unsafe condition
     if it is lawful and feasible to do
     so.................................
Maintaining railroad's responsibilities
 for receiving reports of unsafe
 conditions at highway-rail and pathway
 grade crossings.
    (h)(1)(i) Maintaining railroad fails           5,000           7,500
     to provide sufficient contact
     information to dispatching
     railroad, by which the dispatching
     railroad may timely contact the
     maintaining railroad upon receipt
     of a report........................
    (ii) Maintaining railroad fails               10,000          15,000
     either to have a live person answer
     calls directly and promptly, or to
     use an automated answering system
     for receiving calls from the
     dispatching railroad of a report of
     an unsafe condition................
    (iii) Dispatching railroad                    10,000          15,000
     improperly uses an automated
     answering system...................
    (h)(2)(i)-(ii) Excepted maintaining            5,000           7,500
     railroad fails to use proper method
     to receive calls of unsafe
     conditions at crossings during
     operational or non-operational
     hours..............................
 234.306 Multiple dispatching or
 maintaining railroads with respect to
 the same highway-rail or pathway grade
 crossing; appointment of responsible
 railroad:
    (a)(1) Each of the dispatching                10,000          15,000
     railroads for the crossing fails to
     appoint a primary dispatching
     railroad for the crossing..........
    (a)(1)(i)-(iv) The primary                     5,000           7,500
     dispatching railroad for the
     crossing fails to carry out one of
     the prescribed duties..............
    (a)(2) Another pertinent dispatching           5,000           7,500
     railroad for the crossing fails to
     carry out remedial action as
     required by Sec.   234.305.........
    (b)(1) Each of the maintaining                 5,000           7,500
     railroads for the crossing fails to
     appoint one maintaining railroad
     responsible for the placement and
     maintenance of the ENS sign(s).....
    (b)(2) The assigned maintaining                5,000           7,500
     railroad in Sec.   234.306(b)(1)
     fails to display on the ENS sign(s)
     the emergency telephone number of
     the dispatching railroad or primary
     dispatching railroad for the
     crossing...........................
    (c)(1) The dispatching railroad or             5,000           7,500
     primary dispatching railroad fails
     to promptly contact and inform the
     appropriate maintaining railroad(s)
     for the crossing of the reported
     problem............................
    (c)(2) The maintaining railroad               10,000          15,000
     fails to carry out remedial action
     as required by Sec.   234.305......
 234.307 Use of third-party telephone
 service by dispatching and maintaining
 railroads \3\:
    (a)(1) Dispatching railroad                   10,000          15,000
     improperly uses third-party
     telephone service..................
    (a)(2) Dispatching railroad fails to          10,000          15,000
     ensure third-party telephone
     service compliance with Sec.
     234.307............................
    (b)(1) Maintaining railroad                   10,000          15,000
     improperly uses third-party
     telephone service..................
    (b)(2) Maintaining railroad fails to          10,000          15,000
     ensure third-party telephone
     service compliance with Sec.
     234.307............................
    (d)(1) Railroad fails to provide               2,500           5,000
     sufficient contact information to
     third-party telephone service......
    (d)(2)(i) Railroad fails to inform             2,500           5,000
     FRA in writing before the
     implementation of a third-party
     telephone service..................
    (ii) Railroad fails to provide FRA             2,500           5,000
     with contact information for the
     third-party telephone service......
    (iii) Railroad fails to provide FRA            2,500           5,000
     with information identifying the
     crossings about which the third-
     party telephone service will
     receive reports....................
    (d)(3) Railroad fails to inform FRA            2,500           5,000
     in writing within 30 days following
     any changes in the use of, or the
     discontinuance of, third-party
     telephone service..................
    (d)(4) \4\ Dispatching or
     maintaining railroad fails to take
     appropriate action required by Sec.
       234.305.
    (e) \5\ Railroad fails to ensure
     third-party telephone service
     compliance with Sec.   234.313 or
     Sec.   234.315, as applicable.
 234.309 ENS signs in general:
    (a) Dispatching railroad fails to              2,500           5,000
     provide ENS telephone number to the
     maintaining railroad a minimum of
     180 days prior to the required
     implementation date of the ENS.....
    (b)(1)-(3) \6\ Responsible railroad            5,000           7,500
     fails to display minimum required
     information on ENS sign............
    (c)(1)-(4) \7\ Responsible railroad            5,000           7,500
     fails to display ENS sign that
     meets size and other physical
     requirements.......................
 234.311 ENS sign placement and
 maintenance:
    (a)(1)-(2) Responsible railroad                5,000           7,500
     fails to place and maintain
     required number of sign(s) at the
     crossing or entrance(s) to facility
    (b)(1)-(2) Responsible railroad                5,000           7,500
     fails to properly locate and
     maintain the sign(s) at the
     crossing...........................
 234.313 Recordkeeping:

[[Page 30367]]

 
    (a)(1)-(9) Railroad fails to                   2,500           5,000
     maintain in its records the minimum
     information required for each ENS
     report received....................
    (c)(1)-(2) Responsible railroad(s)             2,500           5,000
     fail(s) to record in writing an
     appointment of a railroad, pursuant
     to Sec.   234.306, or properly
     retain a copy of the document......
    (d)(1) Railroad fails to properly              2,500           5,000
     retain records.....................
    (d)(2) Railroad fails to provide FRA           2,500           5,000
     access to records..................
 234.315 Electronic recordkeeping:
    (a)-(b) Railroad fails to comply               2,500           5,000
     with electronic recordkeeping
     requirements.......................
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $105,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A. To facilitate the assessment of penalty
  amounts, the specific types of violations of a given section are
  sometimes designated by the paragraph of the section (e.g., ``(a)'')
  and a code not corresponding to the legal citation for the violation
  (e.g., ``(1)''), so that the complete citation in the penalty schedule
  is e.g., ``(a)(1).'' FRA reserves the right to revise the citation of
  the violation in the Summary of Alleged Violations issued by FRA in
  the event of litigation.
\2\ Either this section or the parallel section of subpart C of this
  part may be cited, but not both.
\3\ FRA does not plan to assess civil penalties against a third-party
  telephone service, under Sec.   234.307(c) or (e). However, FRA plans
  to assess violations against the dispatching and maintaining railroads
  for failing to ensure that the third-party telephone service complies
  with the requirements of Sec.  Sec.   234.307, 234.313, or 234.315, if
  applicable. See Sec.   234.307(a), (b), (e).
\4\ For a violation of Sec.   234.307(d)(4), a penalty should be
  assessed for the specific type of violation according to the penalty
  schedule for a violation of Sec.   234.305.
\5\ For a violation of Sec.   234.307(e) pertaining to recordkeeping, a
  penalty should be assessed for the specific type of violation in the
  penalty schedule for a violation of Sec.  Sec.   234.313 or 234.315,
  as applicable.
\6\ FRA reserves the right to cite a violation for each item of required
  information omitted from a sign.
\7\ FRA reserves the right to cite a violation for each physical
  characteristic that is nonconforming.


    Issued in Washington, DC, on May 21, 2015.
Sarah Feinberg,
Acting Administrator.
[FR Doc. 2015-12775 Filed 5-27-15; 8:45 am]
 BILLING CODE 4910-06-P


