11992 Federal Register / Vol. 76, No. 43 / Friday, March 4, 2011 / Proposed Rules 

be reported to the Office of 

Administration at Headquarters. 

945.602–70 Local screening. 

Local screening shall be done using 

EADS. 

945.603 Abandonment, destruction or 

donation of excess personal property. 

See 945.670 for DOE disposal 

methods. 

945.604 Disposal of surplus property. 

945.604–1 Disposal methods. 

(b)(3) Recovering precious metals. 

Contractors generating contractor 

inventory containing precious metals or 

possessing precious metals excess to 

their programmatic requirements, shall 

identify and promptly report such items 

to the contracting officer for review, 

approval and reporting to the DOE 

Business Center for Precious Metals 

Sales & Recovery (Business Center). 

This includes Gold, Silver, Platinum, 

Rhodium, Palladium, Iridium, Osmium, 

and Ruthenium in any form, shape, 

concentration, or purity. Report all 

RCRA contaminated precious metals, 

but not radiological contaminated. The 

Y–12 NNSA Site Office is responsible 

for maintaining the DOE Business 

Center. Precious metals scrap will be 

reported to the DOE Business Center. 

(d) See 945.670 for DOE disposal 

methods. 

945.670 DOE disposal methods. 

945.670–1 Plant clearance function. 

If the plant clearance function has not 

been formally delegated to another 

Federal agency, the contracting officer 

shall assume all responsibilities of the 

plant clearance officer identified in 48 

CFR 45.606–3. 

945.670–2 Disposal of radioactively 

contaminated personal property. 

Special procedures regarding the 

disposal of radioactively contaminated 

property may be found at 41 CFR 109– 

45.50. 

945.670–3 Waiver of screening 

requirements. 

(a) The Director of the Personal 

Property Management Division, within 

the Headquarters procurement 

organization may authorize exceptions 

from screening requirements. 

(b) A request to the Director of the 

Personal Property Management 

Division, within the Headquarters 

procurement organization for the waiver 

of screening requirements must be 

submitted by the Procurement Directors 

with a justification setting forth the 

compelling circumstances warranting 

the exception. 

945.671 Contractor inventory in foreign 

countries. 

Contractor inventory located in 

foreign countries will be utilized and 

disposed of in accordance with DOE– 

PMR 41 CFR part 109–43, subpart 109– 

43.5, and part 109–45, subpart 45.51. 

PART 970—DOE MANAGEMENT AND 

OPERATING CONTRACTS 

15. The authority citation for part 970 

continues to read as follows: 

Authority: 42 U.S.C. 2201; 2282a; 2282b; 

2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 

et seq. 

970.5244–1 [Amended] 

16. Section 970.5244–1 is amended 

by: 

a. Revising the clause date to read as 

set forth below; and 

b. Revising clause paragraph (k) and 

adding a paragraph (q)(13). 

The revisions and additions read as 

follows: 

970.5244–1 Contractor purchasing 

system. 

* * * * * 

CONTRACTOR PURCHASING 

SYSTEM (XXX 20XX) [abbreviated 

month and year of the date of 

publication of the final rule] 

* * * * * 

(k) Government Property. The Contractor 

shall establish and maintain a property 

management system that complies with 

criteria in 48 CFR 970.5245–1, Property, and 

48 CFR 52.245–1, Government Property. 

* * * * * 

(q) * * * 

(13) Products made in Federal penal and 

correctional institutions—41 CFR 101–26.702 

* * * * * 

17. Section 970.5245–1 is amended 

by: 

a. Revising the date of the clause to 

read as set forth below; 

b. Removing and reserving paragraph 

(i)(1)(ii)(B). 

The revisions read as follows: 

970.5245–1 Property. 

* * * * * 

PROPERTY (XXX 20XX) [abbreviated 

month and year 30 DAYS AFTER date 

of publication of the final rule] 

* * * * * 

(i) * * * 

(1) * * * 

(ii) * * * 

(B) [Reserved] 

* * * * * 

[FR Doc. 2011–4350 Filed 3–3–11; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

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

49 CFR Part 234 

RIN 2130–AC12 

Systems for Telephonic Notification of 

Unsafe Conditions at Highway-Rail and 

Pathway Grade Crossings 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FRA is proposing 

amendments to its primary regulations 

on grade crossing safety. The major 

amendments proposed would require a 

railroad that dispatches a train through 

a public or private highway-rail or 

pathway grade crossing to establish and 

maintain a system that allows a member 

of the public to call the railroad and 

report an emergency or other unsafe 

condition at the crossing. Upon 

receiving such a report, the railroad 

would be required to warn all trains 

authorized to operate through the 

crossing of the reported unsafe 

condition, inform local law enforcement 

of the reported unsafe condition, and 

either investigate the report itself or 

request that the railroad with 

maintenance responsibility for the 

crossing investigate the report. If the 

report is substantiated, the railroad with 

maintenance responsibility for the 

crossing would be required to take 

certain actions to remedy the condition 

found. 

DATES: Written comments must be 

received by May 3, 2011. Comments 

received after that date will be 

considered to the extent possible 

without incurring additional expenses 

or delays. 

FRA anticipates being able to resolve 

this rulemaking without a public, oral 

hearing. However, if FRA receives a 

specific request for a public, oral 

hearing prior to May 3, 2011, one will 

be scheduled, and FRA will publish a 

supplemental notice in the Federal 

Register to inform interested parties of 

the date, time, and location of any such 

hearing. 

ADDRESSES: Comments: Comments 

related to Docket No. FRA–2009–0041 

may be submitted by any of the 

following methods: 

• Online: Comments should be filed 

at the Federal eRulemaking Portal, 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

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Federal Register / Vol. 76, No. 43 / Friday, March 4, 2011 / Proposed Rules 11993 

• Fax: 202–493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

• Hand Delivery: Room W12–140 on 

the Ground level of the West Building, 

1200 New Jersey Avenue, SE., 

Washington, DC between 9 a.m. and 

5 p.m. Monday through Friday, except 

Federal holidays. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking. Note 

that all comments received will be 

posted without change to http:// 

www.regulations.gov including any 

personal information. Please see the 

Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for Privacy Act 

information related to any submitted 

comments or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or visit 

the Docket Management Facility, U.S. 

Department of Transportation, West 

Building, Ground floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC between 9 a.m. and 

5 p.m. ET, Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Beth 

Crawford, Transportation Specialist, 

Grade Crossing Safety and Trespass 

Prevention, Office of Safety Analysis, 

FRA, 1200 New Jersey Avenue, SE., 

Mail Stop 25, Washington, DC 20590 

(telephone: 202–493–6288), 

beth.crawford@dot.gov; or Matthew 

Navarrete, Trial Attorney, Office of 

Chief Counsel, FRA, 1200 New Jersey 

Avenue, SE., Mail Stop 10, Washington, 

DC 20590 (telephone: 202–493–0738), 

matthew.navarrete@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Statutory Background 

II. History of Accidents Relevant to this 

Rulemaking 

III. History of Emergency Notification 

Systems 

A. In General 

B. Various ENS Programs in the United 

States 

C. FRA’s 2006 Report to Congress 

IV. Section-by-Section Analysis 

V. Regulatory Impact 

A. Executive Order 12866 and 13563 and 

DOT Regulatory Policies and Procedures 

B. Regulatory Flexibility Determination 

C. Federalism 

D. International Trade Impact Assessment 

E. Paperwork Reduction Act 

F. Compliance with the Unfunded 

Mandates Reform Act of 1995 

G. Environmental Assessment 

H. Energy Impact 

I. Privacy Act 

I. Statutory Background 

The proposed rule is intended 

specifically to help implement Sec. 205 

of the Rail Safety Improvement Act of 

2008 (RSIA), Public Law 110–432, 

Division A, which was enacted October 

16, 2008, and generally to increase 

safety at highway-rail and pathway 

grade crossings. See 49 U.S.C. 20152, 

Notification of grade crossing problems, 

and definitions in proposed § 234.301. 

Sec. 205 of RSIA mandates that the 

Secretary of Transportation (Secretary) 

require certain railroad carriers 

(railroads) to take a series of specified 

actions related to setting up and using 

systems for the public to notify the 

dispatching railroad of grade crossing 

problems. A separate statutory 

provision, 49 U.S.C. 20103, gives the 

Secretary very broad authority to 

prescribe rail safety regulations and 

issue rail safety orders pursuant to 

notice-and-comment procedures. The 

Secretary has delegated the 

responsibility to carry out both Sec. 205 

of RSIA and 49 U.S.C. 20103 to the 

Administrator of FRA. 49 CFR 1.49(m), 

(oo). Essentially, Sec. 205 of RSIA 

imposes a mandate requiring FRA as the 

Secretary’s delegate to prescribe 

regulations or orders imposing the 

requirements specified in that section; 

FRA has chosen to require the railroads 

to set up and use a notification program 

specified by Sec. 205 of RSIA by 

conducting a rulemaking and 

prescribing a regulation. 

In particular, under Sec. 205 of RSIA, 

FRA is to require railroads to ‘‘establish 

and maintain a toll-free telephone 

service for rights-of-way over which the 

railroad dispatches trains’’ through ‘‘the 

grade crossing of railroad trains on those 

rights-of-way and public or private 

roads,’’ ‘‘to directly receive calls 

reporting’’ any of three types of unsafe 

conditions at the grade crossings or 

other safety-related information 

involving such a grade crossing. Under 

that section, the three types of 

reportable unsafe conditions are as 

follows: (1) Malfunctions of warning 

signals, crossing gates, and other 

devices intended to promote safety at 

the highway-rail grade crossing; (2) 

disabled vehicles blocking railroad 

tracks at such grade crossings; and (3) 

obstructions to the view of a pedestrian 

or a vehicle operator for a reasonable 

distance in either direction of a train’s 

approach to such a grade crossing. To 

the extent that the requirements 

proposed in this NPRM exceed the 

requirements specified by Sec. 205 of 

RSIA, such as covering pathway grade 

crossings, FRA relies primarily upon its 

general safety rulemaking authority 

under 49 U.S.C. 20103. 

In addition to specifying the 

requirement that the Secretary must 

impose on dispatching railroads to 

establish a telephonic notification 

system, Sec. 205 of RSIA includes a 

series of additional specifications to be 

reflected in FRA’s regulation. When a 

railroad receives a report of a 

malfunction of a warning signal, 

crossing gate, and/or other device 

intended to promote safety at the grade 

crossing or a report of a disabled vehicle 

blocking a railroad track at a grade 

crossing through which the railroad 

dispatches a train, the dispatching 

railroad must immediately contact 

trains operating near the grade crossing 

to warn them of the malfunctioning 

device or disabled vehicle. After 

contacting the trains as necessary, the 

dispatching railroad must contact, as 

necessary, appropriate public safety 

officials having jurisdiction over the 

grade crossing to provide them with the 

information necessary for them to direct 

traffic, assist in the removal of the 

disabled vehicle, or carry out other 

activities. When a railroad receives a 

report of either obstructions to the view 

of a pedestrian or a vehicle operator for 

a reasonable distance in either direction 

of a train’s approach to the grade 

crossing or other safety information 

involving such grade crossings, the 

railroad must timely investigate the 

report, remove the obstruction if 

possible, or correct the unsafe 

condition. 

Further, under Sec. 205 of RSIA, FRA 

must require that the owner of the track 

at the grade crossing ‘‘ensure the 

placement * * * of appropriately 

located signs’’ bearing, at a minimum, a 

toll-free telephone number to be used by 

the public for placing calls to report 

unsafe conditions at the crossing to the 

railroad that dispatches trains on that 

right-of-way through the crossing, an 

explanation of the purpose of that tollfree telephone number, and the grade 

crossing number assigned to that 

crossing by the U.S. Department of 

Transportation (DOT) National Crossing 

Inventory File. 

Finally, Sec. 205 of RSIA allows FRA 

to waive the requirement in the 

mandated rule that the telephone 

service be toll-free for Class II and Class 

III rail carriers if the agency determines 

that the toll-free service would be cost 

prohibitive or unnecessary. 

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II. History of Accidents Relevant to 

This Rulemaking 

There are approximately 221,000 

public and private at-grade highway-rail 

and pathway grade crossings in the 

United States. In other words, the 

country has 221,000 locations where a 

collision can occur between a train and 

a car, truck, or other motor vehicle, or 

a pedestrian at any one time. Grade 

crossing collisions are among the most 

challenging areas in FRA’s efforts to 

reduce deaths and injuries along the 

Nation’s railroads. In fact, since 1997, 

grade crossing collisions have caused 

more railroad-related fatalities per year 

than any other single factor except for 

trespassing on railroad property. During 

the 11-year period from 1999–2009, 

2,306 collisions occurred at highwayrail and pathway grade crossings where 

a vehicle was stalled or sight 

obstructions were reported to FRA. See 

accident reporting regulations at 49 CFR 

part 225 and 49 CFR 234.7. 

A train striking a pedestrian can result 

in serious injury or death. Further, a 

collision between a train and a vehicle 

of any size can be catastrophic. Serious 

injuries or deaths are far more likely to 

occur with a collision between a train 

and a vehicle than with a collision 

between two vehicles. While significant 

improvements have been achieved over 

the last two decades, grade crossing 

collisions still pose a significant public 

safety threat that can spiral beyond the 

immediate impact of the vehicle and 

train. 

The derailment of a train as a result 

of a collision at the grade crossing can 

have a disastrous effect on the train 

crew or even on an entire community, 

especially if the derailment results in a 

release of hazardous material that 

necessitates the evacuation of a 

neighborhood or the community. 

Moreover, if a passenger train derails as 

a result of a collision, the risk of injuries 

extends beyond the vehicle occupants to 

the crew and passengers of the train. 

This was the case in 1999 in 

Bourbonnais, Illinois, when a National 

Railroad Passenger Corporation 

(Amtrak) passenger train struck a truck 

loaded with steel at a highway-rail grade 

crossing. Almost the entire train 

derailed, causing 11 deaths and 131 

injuries to the passengers and crew of 

the train. 

Other vehicles and pedestrians in the 

vicinity of a highway-rail or pathway 

grade crossing collision can also be at 

grave risk. This was the scenario in 1993 

when an Amtrak passenger train 

collided with a gasoline tanker truck at 

a highway-rail grade crossing in Ft. 

Lauderdale, Florida. The truck driver 

was attempting to cross through a grade 

crossing where traffic was congested. 

The tanker truck was punctured when it 

was struck by the Amtrak train; a fire 

erupted and engulfed the truck and nine 

other vehicles near the crossing. The fire 

killed the driver of the truck and five 

occupants of three stopped vehicles 

near the grade crossing. 

III. History of Emergency Notification 

Systems 

A. In General 

The ability to provide an effective 

means for a member of the public to 

immediately alert the railroad to an 

emergency situation or other unsafe 

condition at a highway-rail or pathway 

grade crossing enables the railroad and 

local public safety officials to respond 

earlier to avert a serious incident. 

Currently, all Class I railroads have put 

in place some sort of means by which 

they can receive notification from the 

public of any emergency or unsafe 

condition at most of their grade 

crossings, whereas many regional and 

short line railroads do not have any 

such kind of notification system in 

place. The proposed rule would require 

certain railroads to implement such a 

system, which this proposed rule calls 

an Emergency Notification System 

(ENS), covering public and private 

highway-rail and pathway grade 

crossings. 

B. Various ENS Programs in the United 

States 

In 1983, the State government of 

Texas established the first toll-free callin program in the United States that has 

enabled the public to notify a State call 

center of problems at the State’s public 

highway-rail grade crossings equipped 

with automated warning devices. In the 

current Texas program, after receiving 

such a call, the Texas call center 

operated by the Texas Department of 

Public Safety in turn notifies the 

railroad involved. The call-in system 

requires that a sign be posted at the 

highway-rail grade crossing with the 

crossing’s unique identifying number 

from the U.S. DOT National Crossing 

Inventory File, as well as a toll-free 

telephone number. Texas’s call center 

has a dedicated computer with a 

modified inventory database that 

facilitates the call recipient’s 

identification of the relevant crossing 

and railroad. The Center operator then 

calls the appropriate railroad and relays 

the report of the problem. At last report 

the Texas system handles more than 

1,200 calls per month for the State’s 

public crossings, even though only 

those crossings equipped with active 

warning devices are equipped with the 

signs containing the Center’s toll-free 

telephone number. It should be noted 

that if FRA adopts the proposed rule, 

railroads using State programs for 

notification of unsafe conditions at 

grade crossings, such as Texas’s 

program, may no longer comply with 

the regulation. However, a State would 

be allowed to operate as a ‘‘third-party 

telephone service’’ as described in the 

proposed rule as long as the program 

complies with all the conditions 

specified. 

Following the successful 

establishment of this program in Texas, 

and in part at the urging of FRA and the 

National Transportation Safety Board 

(NTSB), our Nation’s major railroads 

have voluntarily adopted similar 

systems for the majority of their 

highway-rail and pathway grade 

crossings, sometimes including all grade 

crossings, i.e., systems not limited only 

to public highway-rail grade crossings 

or only to those equipped with active 

warning devices. Unfortunately, more 

than 72,000 public and private highwayrail and pathway grade crossings 

belonging to our Nation’s short line and 

regional railroads are not included. 

Many of these railroads do not have 24- 

hour operations and do not have the 

resources to establish such a call-in 

program. 

In 1994, Congress directed FRA to 

conduct pilot projects in at least two 

States to demonstrate the efficiency of 

such ‘‘emergency notification system’’ 

programs covering highway-rail grade 

crossings and to report to Congress on 

the results of the programs. Sec. 301, 

‘‘Emergency Notification of Grade 

Crossing Problems,’’ of Public Law 103– 

440 (108 Stat. 4626). Initial efforts were 

spent in a cooperative effort with the 

Texas Department of Emergency 

Management evaluating the Texas 

system. Texas was designated one of the 

pilot States, and an extensive list of 

software, hardware, and operating 

improvements was developed. FRA 

prepared and implemented new 

software on an upgraded system in 

1999. Based on comments and 

suggestions, further improvements were 

implemented in 2001 when the Texas 

call center operation was transferred to 

the Texas Department of Public Safety. 

This 2001 version was modified for 

use by a 911 center in Clinton County, 

Pennsylvania, with the participation of 

eight short line railroads. A 30-month 

demonstration program was initiated in 

November 2001. 

In 2002, an agreement was reached 

with the Paducah & Louisville Railroad 

to conduct an additional pilot project 

(the third). At the time this was a 

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regional railroad with 24-hour 

operations and approximately 400 grade 

crossings. FRA modified the program 

software to accommodate the railroad’s 

needs. 

Further, the 1994 Highway-Rail 

Crossing Safety Action Plan issued by 

DOT recommended an automated 

telephone answering system for 

handling telephone calls to report 

emergencies, malfunctions, and other 

safety-related problems at highway-rail 

intersections. However, the automated 

system proved to be unworkable, 

whereas the staffed systems were 

successful. 

C. FRA’s 2006 Report to Congress 

In May 2006, as mandated by 

Congress in Sec. 301, ‘‘Emergency 

Notification of Grade Crossing 

Problems,’’ of Public Law 103–440, FRA 

published a report to Congress outlining 

the development of ENS programs up to 

that date (Report). A copy of the Report 

can be found at http://www.fra.dot.gov/ 

downloads/safety/1_800_report.pdf. The 

Report covered, among other things, the 

Texas ENS program, the Pennsylvania 

ENS program, Congressional action, 

NTSB recommendations, and FRA 

actions. Based on the findings of the 

Report, FRA made certain 

recommendations, to Congress. These 

recommendations were as follows: (1) 

Class I railroads should continue to 

implement, augment, and review the 

emergency notification programs they 

have initiated; (2) smaller railroads, 

including commuter railroads, should 

work cooperatively through The 

American Short Line and Regional 

Railroad Association, or another 

suitable organization or organizations, 

to establish ENS programs serving 

member railroads; (3) signs installed or 

replaced at highway-rail grade crossings 

should be displayed prominently to 

crossing users (e.g., mounted on signal 

masts where practicable) and conform to 

the Federal Highway Administration’s 

(FHWA) Manual on Uniform Traffic 

Control Devices (MUTCD) guidance; 

and (4) any program that does not 

currently include passive highway-rail 

grade crossings be expanded to include, 

at minimum, all such public crossings 

where it is practicable to do so. 

The Report concluded that the pilot 

ENS programs in both Texas and 

Pennsylvania afforded the general 

public a quick and easy means of 

alerting appropriate railroad officials of 

safety-related problems. Additionally, 

the Report concluded that the Texas 

ENS likely resulted in the prevention of 

numerous accidents and injuries, and 

Pennsylvania’s ENS, albeit on a smaller 

scale than Texas’s, demonstrated that it 

is possible to create emergency call 

systems through the development of 

agreements with multiple railroads. 

Finally, the Report emphasized that the 

Pennsylvania ENS also showed the 

value of including all highway-rail 

grade crossings, not just those with 

train-activated warning devices. 

IV. Section-by-Section Analysis 

Section 234.1 Scope 

FRA proposes to expand this part to 

include new subpart E, Emergency 

Notification Systems for Reporting 

Unsafe Conditions at Highway-Rail and 

Pathway Grade Crossings. For this 

reason, FRA proposes to amend the 

description of the scope of the part, 

§ 234.1, by inserting the following 

sentence: ‘‘[t]his part also prescribes 

minimum requirements that railroads 

establish a system for receiving toll-free 

telephone calls from the public at large 

about unsafe conditions at highway-rail 

and pathway grade crossings and taking 

certain actions in response.’’ Further, for 

readability of the section, FRA proposes 

to designate the text of proposed § 234.1 

as two paragraphs, with paragraph (b) 

consisting of the last sentence of current 

§ 234.1. 

Section 234.3 Application and 

Responsibility for Compliance 

FRA also proposes to amend § 234.3, 

Application. Currently, that section, 

says that, except for § 234.11 (which 

requires certain States to file Statespecific grade crossing safety action 

plans), part 234 applies to all railroads 

with the exception of three types. The 

first type of railroad not subject to part 

234 is a railroad that ‘‘exclusively 

operates freight trains only on track 

which is not part of the general railroad 

system of transportation.’’ 49 CFR 

234.3(a). This existing exception is 

intended to cover ‘‘plant railroads’’ as 

defined in proposed § 234.5, discussed 

below. The second category of railroads 

not subject to part 234 is ‘‘[r]apid transit 

operations within an urban area that are 

not connected to the general railroad 

system of transportation.’’ 49 CFR 

234.3(b). The third category of railroads 

not subject to part 234 is each ‘‘railroad 

that operates passenger trains only on 

track inside an installation is insular 

* * *.’’ The term ‘‘insular’’ is explained 

in the rest of the exception. 49 CFR 

234.3(c). 

Proposed § 234.3(a) would clarify that 

these same three categories—(1) Plant 

railroads, (2) urban rapid transit 

operations not connected to the general 

railroad system of transportation, and 

(3) insular tourist, scenic, historic, and 

excursion railroads (tourist railroads) 

that are not part of the general railroad 

system of transportation—are exempt 

from the requirements of part 234. See 

49 CFR part 209, app. A for a discussion 

of the term ‘‘general railroad system of 

transportation’’ (general system). FRA’s 

reasons for excluding these three 

categories of railroads are policy or 

statutory. FRA almost never exercises its 

statutory safety jurisdiction over plant 

railroads as a matter of policy. FRA 

lacks statutory jurisdiction over urban 

rapid transit operations not connected 

to the general system. See 49 U.S.C. 

20102, 20103. As a matter of policy, 

FRA generally does not exercise its 

statutory jurisdiction over tourist 

railroads that operate only off the 

general system; however, part 234 is an 

existing example of an FRA safety 

regulation that does apply to tourist 

railroads that operate only off the 

general system but only if the tourist 

railroads are noninsular, e.g., because 

they have a public highway-rail grade 

crossing that is in use. 

In addition, proposed paragraph (b) of 

§ 234.3 explains that even though a 

provision of part 234 is stated as 

requiring certain action by a railroad, a 

railroad may not avoid fulfilling the 

requirements of this part by using 

contractors or subcontractors. For 

example, if a railroad uses a contractor 

to put up ENS signs required by 

proposed § 234.311, FRA will still 

enforce the provisions of § 234.311 to 

ensure that the proper signs have been 

posted and maintained. FRA will hold 

the railroad liable for its contractor’s or 

subcontractor’s failing to fulfill the 

requirements of this proposed part. 

Section 234.5 Definitions 

FRA proposes three amendments to 

the existing ‘‘Definitions’’ section for 

part 234. First, FRA proposes to amend 

part 234’s existing definition of 

‘‘credible report of system malfunction.’’ 

Currently, subpart C and proposed 

subpart E refer to ‘‘credible reports of 

warning system malfunctions’’ rather 

than ‘‘credible report of system 

malfunction.’’ To address this 

inconsistency, FRA proposes to replace 

‘‘credible report of system malfunction’’ 

with ‘‘credible report of warning system 

malfunction’’ in § 234.5. Furthermore, as 

a minor clarification within the 

definition of ‘‘credible report of system 

malfunction,’’ FRA proposes to replace 

‘‘an identified highway-rail crossing’’ 

with ‘‘an identified highway-rail grade 

crossing.’’ ‘‘[H]ighway-rail crossing’’ 

would be replaced with ‘‘highway-rail 

grade crossing’’ because Subpart C was 

never intended to apply to gradeseparated highway-rail crossings 

because Subpart C deals only with 

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reports of warning system malfunctions 

and grade-separated highway-rail 

crossings are not equipped with 

warning systems. 

Second, FRA proposes to add a 

definition of ‘‘FRA.’’ The term would be 

an acronym meaning the Federal 

Railroad Administration of the U.S. 

Department of Transportation. 

Finally, FRA proposes to add a 

definition of ‘‘plant railroad.’’ The term 

refers to a type of operation that has 

traditionally been excluded from the 

application of FRA regulations because 

it is not part of the general railroad 

system of transportation. There is a 

more extensive explanation of the 

general railroad system of transportation 

in appendix A to 49 CFR part 209, and 

it is explicitly defined there as ‘‘the 

network of standard gage track over 

which goods may be transported 

throughout the nation and passengers 

may travel between cities and within 

metropolitan and suburban areas.’’ 

Subpart E—Emergency Notification 

Systems for Reporting Unsafe 

Conditions at Highway-Rail and 

Pathway Grade Crossings 

FRA proposes to amend part 234 by 

adding new subpart E, Emergency 

Notification Systems for Reporting 

Unsafe Conditions at Highway-Rail and 

Pathway Grade Crossings (proposed 

subpart E), which would include 

§§ 234.301–234.317. 

Section 234.301 Definitions 

This proposed section contains 

definitions of terms used in proposed 

subpart E, listed alphabetically without 

designations. ‘‘Automated answering 

service’’ means a type of answering 

service in which a telephone call is 

answered by any means other than a 

human being speaking live to the caller 

at the time the call is made. Multiple 

provisions in proposed subpart E 

prohibit a railroad from using an 

automated answering service to receive 

calls. See proposed §§ 234.303(a), 

234.305(h)(2), 234.307(a), and 

234.307(b)(2). The rationale for this 

prohibition is FRA’s belief that because 

in certain scenarios, such as a disabled 

vehicle blocking the crossing, time is of 

the essence, and speaking to a human 

being rather than a machine or 

recording reduces the time required to 

initiate the appropriate remedial action, 

thus improving the opportunity to avert 

a collision. FRA is considering and 

seeks comment regarding setting forth a 

maximum amount of time a caller must 

wait before a call is answered by the 

railroad. 

‘‘Class II’’ and ‘‘Class III’’ have the 

meanings assigned by regulations of the 

Surface Transportation Board, which 

may be found at 49 CFR part 1201, 

General Instructions 1–1, Classification 

of carriers. To ensure that the 

definitions of ‘‘Class II’’ and ‘‘Class III’’ as 

used in this proposed subpart 

incorporate any changes that the Surface 

Transportation Board may make after 

the publication of this proposed 

subpart, FRA’s definition includes any 

revision to the regulations as applied by 

the Surface Transportation Board, 

which includes modifications in the 

class threshold based on revenue 

deflator adjustments. 

In certain scenarios the railroad that 

dispatches or otherwise provides the 

authority for the movement of a train 

through a grade crossing (such as 

movement on the mainline under yard 

limit authority) is not the same railroad 

that has maintenance responsibility for 

that crossing. To address this type of 

situation, FRA proposes to use the terms 

‘‘dispatching railroad’’ and ‘‘maintaining 

railroad.’’ ‘‘Dispatching railroad’’ is 

defined as a railroad that dispatches or 

otherwise provides the authority for the 

movement of one or more trains through 

a highway-rail or pathway grade 

crossing. The definition of ‘‘maintaining 

railroad’’ is discussed below. 

To properly receive notification of 

unsafe conditions at grade crossings, a 

railroad or group of railroads would be 

required to implement a system that 

consists of multiple components. To 

refer to the entire set of these various 

components, the term ‘‘Emergency 

Notification System’’ or its abbreviation 

(‘‘ENS’’) is used. Specifically, 

‘‘Emergency Notification System’’ means 

a system in place by which a railroad 

informs the public how to report an 

unsafe condition at a highway-rail or 

pathway grade crossing and enables the 

public to do so and receives, processes, 

and attends to reports of unsafe 

conditions at highway-rail or pathway 

grade crossings. The required 

components of an Emergency 

Notification System are as follows: 

(1) Signs, placed and maintained at the 

grade crossings by the railroad 

responsible for maintaining the 

crossing, that display the information 

necessary for the public to report an 

unsafe condition at the grade crossing to 

the railroad that dispatches trains 

through the crossing; (2) the method 

that the dispatching railroad uses to 

receive and process a telephone call 

reporting the unsafe condition; (3) the 

remedial actions that the dispatching 

railroad takes to address the report of 

the unsafe condition; (4) the remedial 

actions that the maintaining railroad 

takes if the dispatching railroad does 

not have maintenance responsibility; 

and (5) the recordkeeping conducted by 

the railroad or railroads in response to 

the report of the unsafe condition at the 

grade crossing. Although the word 

‘‘emergency’’ is part of the term 

‘‘Emergency Notification System,’’ FRA 

does not intend to imply that all 

reportable unsafe conditions are 

emergencies, i.e., conditions that create 

an imminent hazard of death or injury 

to an individual or damage to property. 

In other words, some reportable unsafe 

conditions are not emergencies. The 

term ‘‘Emergency Notification System’’ 

is used in part because of its use in the 

1994 legislation and its use colloquially. 

It may be noted that this proposed 

section lacks a proposed definition of 

‘‘highway-rail grade crossing.’’ Such a 

proposed definition is unnecessary 

because the current definition in § 234.5 

applies to part 234 as a whole and 

would apply to proposed subpart E. 

Existing § 234.5 defines ‘‘highway-rail 

grade crossing’’ as ‘‘a location where a 

public highway, road, street, or private 

roadway, including associated 

sidewalks and pathways crosses one or 

more railroad tracks at grade.’’ 

‘‘Maintaining railroad’’ means the 

owner of the track at the highway-rail or 

a pathway grade crossing. If the track 

owner has contracted out the 

responsibility to maintain the warning 

system or track structure at a highwayrail or a pathway grade crossing, the 

contractor is considered the 

‘‘maintaining railroad’’ for the purposes 

of this subpart. As mentioned 

previously, the railroad that dispatches 

a train through a grade crossing and the 

railroad that maintains the crossing may 

not necessarily be the same entity. To 

address this scenario, FRA proposes a 

definition for ‘‘maintaining railroad.’’ 

‘‘Pathway grade crossing’’ means a 

pathway that has all of the following 

characteristics: (1) It is explicitly 

authorized by a public authority or a 

railroad; (2) it is dedicated for the use 

of nonvehicular traffic, including 

pedestrians, bicyclists, and others; (3) it 

is not associated with a public highway, 

road, or street, or a private roadway; and 

(4) it crosses one or more railroad tracks 

at grade. Sec. 205 of RSIA provides that 

the Secretary should require railroads to 

provide for telephonic notification of 

safety problems at ‘‘the grade crossing of 

railroad tracks on those rights-of-way 

and public or private roads.’’ 49 U.S.C. 

20152(a)(1)(A) and references to ‘‘such 

grade crossings’’ in 49 U.S.C. 

20152(a)(1)(B)–(D). In other words, Sec. 

205 of RSIA does not mention pathway 

grade crossings. Section 2 of RSIA, 

however, defines ‘‘crossing,’’ as used in 

RSIA, as a location, other than a 

location where one more railroad tracks 

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1For example, warning system malfunctions do 

not occur at grade-separated crossings because 

grade-separated crossings do not have warning 

systems. 

cross one or more railroad tracks, 

where— 

(A) A public highway, road, or street, or a 

private roadway, including associated 

sidewalks and pathways, crosses one or more 

railroad tracks either at grade or gradeseparated; or 

(B) A pathway explicitly authorized by a 

public authority or a railroad carrier that is 

dedicated for the use of nonvehicular traffic, 

including pedestrians, bicyclists, and others, 

that is not associated with a public highway, 

road, or street, or a private roadway, crosses 

one or more railroad tracks either at grade or 

grade-separated. 

122 Stat. 4848, 4849–50. Since the term 

‘‘crossing,’’ as defined in section 2 of 

RSIA, includes pathway grade crossings, 

proposed subpart E will also include 

pathway grade crossings. Furthermore, 

during the 11-year period from 1999– 

2009, 22 deaths and 13 injuries resulted 

from accidents at pathway grade 

crossings. It is reasonable to expect that 

an ENS system that includes pathway 

grade crossings would increase the 

safety of pathway grade crossings by 

increasing the likelihood that the public 

will notify railroads of unsafe 

conditions there and enable the 

railroads to intervene in time to avert 

accidents at the crossings and any 

resulting fatalities and injuries. 

Therefore, FRA believes that the 

inclusion of pathway grade crossings in 

proposed subpart E is ‘‘necessary’’ for 

‘‘railroad safety’’ within the meaning of 

49 U.S.C. 20103. 

FRA recognizes that the definition of 

‘‘crossing’’ from section 2 of RSIA 

includes public, private, and pathway 

crossings that are grade separated; 

however, at this time FRA does not 

intend to expand part 234 and proposed 

subpart E to include grade-separated 

crossings. FRA declines to include 

grade-separated crossings in the 

proposed rule either because the unsafe 

conditions that an ENS addresses do not 

occur at grade-separated crossings 1 or 

because there is no clear, unambiguous 

place to put an ENS sign at a gradeseparated highway-rail or pathway 

crossing; therefore, an ENS at gradeseparated crossings would not be 

effective to increase the safety of those 

crossings. 

Section 234.303 Telephonic 

Notification of Unsafe Conditions at 

Highway-Rail or Pathway Grade 

Crossings 

Proposed § 234.303(a) requires each 

railroad that dispatches a train through 

a highway-rail or pathway grade 

crossing, or provides authority for a 

train to traverse such a crossing, to set 

up a system to directly receive 

telephonic notification of certain unsafe 

conditions at the crossing. This 

proposed section would require these 

dispatching railroads to establish and 

maintain a toll-free telephone service by 

which the railroad can directly receive 

calls from the public reporting any of 

the unsafe conditions listed in proposed 

§ 234.303(b) (with respect to highwayrail grade crossings) and § 234.303(c) 

(with respect to pathway grade 

crossings). 

FRA recognizes that in certain 

scenarios there may be multiple 

railroads dispatching trains on one or 

more tracks through one highway-rail or 

pathway grade crossing. While FRA 

believes that an ENS should include 

these types of crossings, it is not clear 

whether the responsibility to receive 

reports of unsafe conditions at these 

types of crossing should fall on one 

railroad or whether each railroad that 

dispatches a train through the crossing 

should be responsible to receive reports. 

FRA seeks comments on how to handle 

these types of situations. 

The frequency with which a crossing 

is used does not determine whether it is 

included in the system established 

pursuant to proposed § 234.301(a). FRA 

believes that it is important to provide 

an immediate means to communicate a 

notice of an unsafe condition even at 

grade crossings traversed infrequently. 

Imagine, for example, the driver of a 

logging truck stuck at a seldom-used 

private crossing in the Rocky Mountains 

with no knowledge of what actions to 

take or whom to contact. 

The FRA Administrator, as the 

Secretary’s delegate, has the discretion 

to issue a waiver to a Class II or Class 

III railroad relieving it from the 

requirement that the telephone number 

used be toll-free. 49 U.S.C. 20152(b); 49 

CFR 1.49. The Administrator may waive 

the toll-free telephone service 

requirement for a Class II or Class III 

railroad if the Administrator determines 

that the use of a toll-free telephone 

service would be cost prohibitive or 

unnecessary. FRA’s procedures for 

seeking a waiver are at 49 CFR part 211 

(e.g., §§ 211.7, 211.9, and 211.41). 

A railroad that dispatches a train 

through a highway-rail or pathway 

grade crossing or provides authority for 

a train to traverse such a grade crossing 

must be able to directly receive calls 

through the toll-free telephone service. 

‘‘Directly’’ does not necessarily mean 

that the railroad must be the first entity 

that receives the telephone call when 

the toll-free service is used. However, 

‘‘directly’’ does mean that only a limited 

number of entities may be placed 

between the caller reporting the unsafe 

condition(s) at the grade crossing and 

the dispatching railroad. FRA proposes 

that only one entity may exist between 

the caller and the railroad. This 

restriction is addressed further in 

proposed § 234.307. Regardless if an 

additional entity is used, the railroad 

ultimately remains responsible for 

setting up and using a system by which 

it can receive notification of unsafe 

conditions at a grade crossing and take 

the appropriate action in response to a 

notification. This responsibility is 

placed on the railroad because it is in 

the best position to immediately contact 

and warn the trains authorized to 

operate through the grade crossing about 

which the report pertains. 

The four types of unsafe conditions at 

highway-rail grade crossings that are to 

be reportable through the ENS system 

are set forth in proposed § 234.303(b). 

(Again, the four types of unsafe 

conditions at pathway grade crossings 

that are to be reportable through the 

ENS system are listed in proposed 

§ 234.303(c).) The first type of reportable 

unsafe condition at a highway-rail grade 

crossing is a warning system 

malfunction at the crossing. ‘‘Warning 

system malfunction,’’ as defined in 

proposed § 234.5, means an activation 

failure, a partial activation, or a false 

activation of a highway-rail grade 

crossing warning system. The terms 

‘‘activation failure,’’ ‘‘partial activation,’’ 

and ‘‘false activation’’ are all defined in 

existing § 234.5 as well. 

The second type of reportable unsafe 

condition at a highway-rail grade 

crossing is a disabled vehicle or other 

obstruction blocking a railroad track at 

the crossing. As mentioned in Section II 

of this preamble, a significant number of 

collisions between a train and a vehicle 

have occurred at highway-rail grade 

crossings due to a vehicle blocking the 

railroad tracks at the crossing, with 

many of these collisions resulting in 

injuries and fatalities. While FRA 

acknowledges that not all of these 

incidents may have been prevented by 

the presence of an ENS, such a system 

increases the likelihood that the 

dispatching railroad will learn of the 

disabled vehicle in time to alert any 

trains authorized to operate through that 

crossing, thus potentially averting a 

collision and any resulting casualties. 

Further, other obstructions, aside from a 

disabled vehicle, may block the tracks at 

a crossing and create an unsafe 

condition that needs to be reported to 

the railroad. For instance, as a result of 

a severe storm, a large tree may fall onto 

the tracks at a highway-rail grade 

crossing, and if a railroad is not alerted 

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about this unsafe condition, a train that 

is authorized to operate through that 

crossing could collide with the downed 

tree, thus potentially causing a 

derailment. Under Sec. 205 of RSIA, the 

second category of unsafe conditions is 

a disabled vehicle blocking the tracks at 

a grade crossing. To the extent that 

FRA’s proposed rule requires more than 

Sec. 205 of RSIA would have it require, 

the agency relies on its general safety 

rulemaking authority. 

The third type of a reportable unsafe 

condition at a highway-rail crossing is 

an obstruction to the view of a 

pedestrian or a vehicle operator for a 

reasonable distance in either direction 

of a train’s approach to the crossing. 

FRA’s Track Safety Standards provide 

that ‘‘vegetation on railroad property 

which is on or immediately adjacent to 

the roadbed shall be controlled so that 

it does not [o]bstruct visibility of 

railroad signs and signals [a]t highwayrail grade crossings.’’ 49 CFR 213.7(b)(1) 

(§ 213.7(b)(1)). Proposed § 234.303(b)(3) 

allows a member of the public to inform 

the railroad of conditions at highwayrail grade crossings that may not fall 

under § 213.7(b)(1), but that, in the 

individual’s opinion, present an unsafe 

condition involving a sight obstruction 

at the crossing. FRA seeks comment 

regarding what is a ‘‘reasonable 

distance’’ to determine whether an 

obstruction to a pedestrian or vehicle 

operator’s view of a train’s approach to 

a highway-rail grade crossing presents 

an unsafe condition at the grade 

crossing. 

The final type of reportable unsafe 

condition at a highway-rail grade 

crossing is any condition at the crossing 

that may be considered unsafe and is 

not covered by § 234.303(b)(1)–(3). A 

downed or missing crossbuck sign 

illustrates the type of condition at a 

highway-rail grade crossing that may be 

deemed unsafe, and therefore should be 

reported to the railroad, but does not fall 

into one of the three other categories. 

However, a downed or missing 

crossbuck sign is merely an example 

and is not intended to be an exhaustive 

list of the various conditions that may 

be considered unsafe under this catchall provision. 

Proposed § 234.303(c) sets forth the 

four types of reportable unsafe 

conditions at pathway grade crossings 

as opposed to highway-rail grade 

crossings. These four types of reportable 

unsafe conditions at pathway grade 

crossings are, essentially, the same as 

those for highway-rail grade crossings, 

but, as detailed below, the four types of 

reportable unsafe conditions at pathway 

grade crossings are not described in the 

exact same words, and unlike the first 

type of report for a highway-rail grade 

crossing, the first type of report for a 

pathway grade crossing does not trigger 

the duty to address the report in the 

manner prescribed by existing 49 CFR 

part 234, subpart C (subpart C). 

The first type of reportable condition 

for a pathway grade crossing is a failure 

of the active warning system at the 

pathway grade crossing to perform as 

intended. Proposed § 234.303(c)(1) does 

not use term ‘‘warning system 

malfunction’’ to refer to a failure of an 

active warning system at a pathway 

grade crossing because, as defined in 

§ 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 § 234.5 and 

only apply to highway-rail grade 

crossings. FRA has not proposed 

specific standards regarding the 

maintenance and repair of active 

warning systems at pathway grade 

crossings and does not intend to do so 

at this time. However, FRA does intend 

to require that certain railroads provide 

the public with a means to report when 

the active warning system at a pathway 

grade crossing is not performing as 

intended and is creating an unsafe 

condition at the crossing. 

While the term ‘‘failure of the active 

warning system at the pathway grade 

crossing to perform as intended’’ as used 

in proposed § 234.303(c)(1) is not 

specifically defined, FRA believes that 

the term sufficiently addresses the 

scenarios in which an active warning 

system at a pathway grade crossing 

malfunctions and poses a significant 

safety risk to a pathway grade crossing 

user. FRA seeks comment regarding the 

types of failures of an active warning 

system at a pathway grade crossing that 

may differ from failures of active 

warning systems at highway-rail grade 

crossings. Additionally, FRA seeks 

comment regarding how the 

maintenance and repair of an active 

warning system at a pathway grade 

crossing differ from the required 

maintenance and repair of an active 

warning system at a highway-rail grade 

crossing. 

The second type of reportable unsafe 

condition at a pathway grade crossing is 

an obstruction blocking a railroad track 

at the crossing. To avoid confusion, the 

term ‘‘disabled vehicle’’ is purposely 

omitted from proposed § 234.303(c)(2), 

though it is used in proposed 

§ 234.303(b)(2), because, as defined in 

proposed § 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), 

§ 234.303(c)(2) uses the broad term 

‘‘obstruction.’’ 

The third type of reportable unsafe 

condition at a pathway grade crossing is 

an obstruction to the view of a pathway 

user for a reasonable distance in either 

direction of a train’s approach to the 

crossing. See discussion of proposed 

§ 234.303(b)(3). 

The final type of reportable unsafe 

condition at a pathway grade crossing is 

any condition at the crossing that may 

be considered unsafe and is not covered 

by § 234.303(c)(1)–(3). See discussion of 

proposed § 234.303(b)(4). 

As mentioned previously, the FRA 

Administrator has the discretion to 

waive the requirement that the ENS 

telephone number be toll-free for Class 

II and Class III railroads. The 

Administrator may waive the toll-free 

requirement for these railroads if he or 

she determines that the use of a toll-free 

service would be cost prohibitive or 

unnecessary. FRA believes that there 

may be certain scenarios in which a 

caller would be discouraged from 

reporting an unsafe condition at a grade 

crossing because the use of a non-tollfree number would impose an 

additional cost on the caller as opposed 

to if a toll-free number was used. 

Further, the requirement for the number 

to be toll-free may be overly 

burdensome to a short line or other 

small railroad. To avoid these types of 

situations, FRA proposes in § 234.303(d) 

that if a Class II or Class III railroad 

dispatches trains within an area in 

which the use of a non-toll-free number 

would not incur any additional fees for 

the caller compared to if a toll-free 

number was used, then that railroad 

may use that non-toll-free number to 

receive calls pursuant to § 234.303(a) 

regarding each grade crossing in that 

area. 

Paragraph (e) ensures that if a report 

of an unsafe condition at a highway-rail 

or pathway grade crossing was not made 

through the telephone service described 

in proposed § 234.303(a), subpart E does 

not apply. Since subpart E only sets 

forth the requirements of an ENS and 

the actions taken in response to a report 

of unsafe condition received through an 

ENS, a report that is not received 

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through an ENS does not invoke the 

requirements in subpart E. 

FRA is considering whether to extend 

proposed subpart E to cover all public 

highway-rail grade crossings located 

within a port, or dock facility, railroad 

yard or private industrial facility and 

such a facility/yard is subject to part 234 

as set forth in amended § 234.3. If these 

types of crossings are covered by 

proposed subpart E, FRA is considering 

whether to treat all of the crossings 

located in such facilities/yards as a 

single public highway-rail grade 

crossing for the purposes of proposed 

subpart E. These areas often have a 

significant number of crossings located 

in a small area, and FRA believes that 

it may be impracticable to consider each 

crossing within these areas as a separate 

grade crossing. Treating all the public 

highway-rail grade crossings within 

these facilities/yards as one public 

highway-rail grade crossing is consistent 

with the U.S. DOT National HighwayRail Crossing Inventory, Policy, 

Procedures and Instructions for States 

and Railroads, published August 2007, 

which can be found at— http://www.fra.

dot.gov/downloads/safety/RXIPolicy

Instructions0807.pdf. FRA seeks 

comment whether proposed subpart E 

should be extended to incorporate 

public highway-rail grade crossings 

located within a port, or dock facility, 

railroad yard or private industrial 

facility. FRA also seeks comment 

whether it is practicable to treat all of 

the public highway-rail grade crossings 

within such facilities/yards as one 

public highway-rail grade crossing for 

the purposes of proposed subpart E. 

Section 234.305 Remedial Actions 

Proposed § 234.305 addresses the 

actions that a railroad must take in 

response to an ENS-generated report of 

an unsafe condition at a highway-rail or 

pathway grade crossing. Paragraph (a) of 

the proposed section is the general rule 

on required response to ENS-generated 

credible reports of warning system 

malfunctions. If a railroad receives an 

ENS-generated report of a warning 

system malfunction that is a credible 

report of warning system malfunction 

and the railroad has maintenance 

responsibility for the warning system at 

the highway-rail grade crossing to 

which the report pertains, the railroad is 

required to take the appropriate action 

as required by subpart C. As defined in 

proposed § 234.5, a ‘‘credible report of 

warning system malfunction’’ is 

‘‘specific information regarding a 

malfunction at an identified highwayrail grade crossing, supplied by a 

railroad employee, law enforcement 

officer, highway traffic official, or other 

employee of a public agency acting in 

an official capacity.’’ If a report of a 

warning system malfunction is not 

provided by one of the four specific 

types of people listed, then the report is 

not a credible report of system 

malfunction within the meaning of both 

subpart C and proposed subpart E, and 

subpart C does not require any remedial 

action in response to those reports. It 

should be noted that a credible report of 

warning system malfunction only 

applies to highway-rail grade crossings 

and does not include pathway grade 

crossings. At this time FRA does not 

plan to expand the definition of 

‘‘credible report of warning system 

malfunction’’ to include pathway grade 

crossings. Thus, regardless of who 

reports a warning system malfunction at 

a pathway grade crossing, the report is 

not considered a ‘‘credible report of 

warning system malfunction’’ within the 

meaning of both subpart C and proposed 

subpart E. However, it is important to 

note that the term ‘‘credible’’ does not go 

to the accuracy or truthfulness of the 

report; rather, it distinguishes the type 

of person providing the report to the 

railroad. Just because a report is not 

considered a ‘‘credible report of warning 

system malfunction,’’ as defined by 

proposed § 234.5, does not mean that it 

is not accurate or truthful. 

If the report is a credible report of 

warning system malfunction, but the 

railroad that initially receives the report 

is not the railroad that has maintenance 

responsibility for the warning system at 

the highway-rail grade crossing to 

which the report pertains, that railroad 

is already responsible for contacting the 

trains that are authorized to operate 

through the highway-rail grade crossing 

and warn the trains of the reported 

malfunction under subpart C. After 

warning the trains, the railroad must 

then contact the railroad that has 

maintenance responsibility for the 

warning system at the highway-rail 

grade crossing, which will then be 

responsible for taking the appropriate 

remedial action under subpart C. FRA 

recognizes that in many instances the 

railroad that initially receives the report 

may not be the railroad that has 

maintenance responsibility over the 

warning system at that crossing. 

Therefore, to ensure that the 

responsibility to take the appropriate 

remedial action as required by subpart 

C falls on the appropriate railroad, 

proposed § 234.305(a)(2) requires the 

railroad with maintenance 

responsibility to take the appropriate 

remedial action under subpart C, except 

for immediately contacting the trains 

operating through the crossing; this 

responsibility remains with the 

dispatching railroad. 

Paragraph (b) of proposed § 234.305 is 

the general rule on response to ENSgenerated reports of warning system 

malfunctions at highway-rail grade 

crossings that are not considered 

credible reports of warning system 

malfunctions as defined by proposed 

§ 234.5 and requires that railroads take 

certain specified remedial action in 

response to those reports. In other 

words, proposed § 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 § 234.5 because the 

report is made by someone who is not 

a railroad employee, law enforcement 

officer, highway traffic official, or other 

employee of a public agency acting in 

an official capacity. In particular, if a 

railroad receives a report of a warning 

system malfunction that is not a 

credible report of warning system 

malfunction and that railroad has 

maintenance responsibility for the 

warning system at the crossing, the 

railroad must immediately contact all 

trains that are authorized to operate 

through the grade crossing about which 

the report pertains and warn those 

trains of the reported malfunction. The 

railroad must then promptly contact the 

law enforcement agency that has 

jurisdiction over the crossing and 

provide the necessary information for 

the law enforcement agency to direct 

traffic or carry out other activities to 

maintain safety at the grade crossing. 

Further, the railroad must promptly 

investigate the report and determine the 

nature of the malfunction and, if 

necessary, take appropriate action as 

required by a provision of existing 49 

CFR part 234, subpart D, i.e., 

§ 234.207(a), which requires that 

‘‘[w]hen any essential component of a 

highway-rail grade crossing warning 

system fails to perform its intended 

function, the cause shall be determined 

and the faulty component adjusted, 

repaired, or replaced without undue 

delay.’’ 

If a railroad receives a report of a 

warning system malfunction that is not 

a credible report of warning system 

malfunction and that railroad does not 

have maintenance responsibility for the 

warning system at the highway rail 

grade crossing, the railroad must 

immediately contact all trains that are 

authorized to operate through the grade 

crossing to which the report pertains 

and warn those trains of the reported 

malfunction. The railroad must then 

promptly contact the law enforcement 

agency that has jurisdiction over the 

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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 § 234.207(a) if 

necessary. 

Proposed § 234.305(c) is the general 

rule on response to a warning system 

failure at a pathway grade crossing. If 

the dispatching railroad receives a 

report pursuant to § 234.303(c)(1) and 

that railroad also has maintenance 

responsibility for the active warning 

system at the pathway grade crossing, 

the railroad shall immediately contact 

all trains that are authorized to operate 

through the pathway grade crossings to 

which the report pertains and warn the 

trains of the reported failure. The 

railroad shall then promptly contact the 

law enforcement agency having 

jurisdiction over the pathway grade 

crossing and provide the necessary 

information to the law enforcement 

agency to direct traffic or carry out other 

activities to maintain safety at the 

pathway grade crossing. Finally, the 

railroad shall the promptly investigate 

the report and determine the nature of 

the reported failure and repair the 

warning system if necessary. 

If the dispatching railroad receives a 

report of a warning system failure at a 

pathway grade crossing and that 

dispatching railroad does not have 

maintenance responsibility for the 

warning system at the pathway grade 

crossing, the dispatching railroad must 

immediately contact all trains that are 

authorized to operate through the 

pathway grade crossing to which the 

report pertains and warn those trains of 

the reported failure. The dispatching 

railroad must then promptly contact the 

law enforcement agency that has 

jurisdiction over the pathway grade 

crossing and provide the necessary 

information for the law enforcement 

agency to direct traffic or carry out other 

activities to maintain safety at the 

pathway grade crossing. The 

dispatching railroad must then 

promptly contact the railroad that has 

maintenance responsibility for the 

warning system at the pathway grade 

crossing and inform that railroad of the 

reported failure. The railroad having 

maintenance responsibility shall then 

promptly investigate the report and 

determine the nature of the reported 

failure and repair the warning system if 

necessary. 

Proposed § 234.305(d) is the general 

rule on a dispatching railroad’s response 

to reports of a disabled vehicle or other 

obstruction blocking a railroad track at 

a highway-rail or pathway grade 

crossing through which it dispatches 

trains. When a railroad receives a report 

of a disabled vehicle or obstruction 

blocking a railroad track at a grade 

crossing, the railroad must immediately 

contact all trains that are authorized to 

operate through the grade crossing to 

which the report pertains and warn the 

trains of the reported disabled vehicle or 

obstruction. Once all of the necessary 

trains are contacted, the railroad must 

then contact the law enforcement 

agency having jurisdiction over the 

grade crossing to provide that agency 

with the information necessary to assist 

in the removal of the disabled vehicle or 

other obstruction or carry out other 

activities as appropriate. FRA is 

considering and seeks comments on 

whether to require the railroad that 

receives the report (dispatching 

railroad) to contact the maintaining 

railroad if the obstruction is anything 

other than a disabled vehicle. The 

maintaining railroad would then be 

responsible for contacting the law 

enforcement agency and any other 

entities to assist in directing traffic (if 

necessary) and removing the 

obstruction. 

Proposed § 234.305(e) is the special 

rule on contacting a train that is not 

required to have communication 

equipment. Section 220.9 of FRA’s 

regulations on railroad communications 

sets forth communication equipment 

standards for trains. 49 CFR 220.9 

(§ 220.9). These standards vary 

according to specific criteria set forth in 

§ 220.9. According to § 220.9(b), no 

communication equipment is required 

on a train if that train does not transport 

passengers or hazardous material and 

does not engage in joint operations or 

operate at greater than 25 miles per 

hour. See 63 FR 47188; § 220.9(b)(1)–(4). 

However, as proposed in subpart E, 

upon receipt of a report of a warning 

system malfunction, a warning system 

failure at a pathway grade crossing, or 

a disabled vehicle or other obstruction 

blocking a track, a railroad will be 

required to immediately contact a train 

authorized to operate through the 

highway-rail or pathway grade crossing 

to which the report pertains. If that train 

is not required by § 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) (§ 220.13(a)) to 

immediately report certain emergencies 

by the quickest means available. To 

maintain consistency among FRA 

regulations, proposed § 234.305(e) 

requires that the quickest means used to 

contact a train upon receipt of a report 

of a warning system malfunction or 

disabled vehicle or other obstruction 

blocking a track at the crossing is 

consistent with the quickest means that 

an employee would use to report an 

emergency pursuant to § 220.13(a). 

Proposed § 234.305(f) is the general 

rule on response to reports of an 

obstruction to the view of a pedestrian 

or a vehicle operator for a reasonable 

distance in either direction of a train’s 

approach to the highway-rail or 

pathway grade crossing (visual 

obstruction). FRA proposes that when 

the dispatching railroad receives a 

report of a visual obstruction and the 

railroad also has maintenance 

responsibility for the highway-rail or 

pathway grade crossing, the railroad 

shall timely investigate the report and, 

if the report is confirmed, shall remove 

the visual obstruction if it is feasible 

and lawful to do so. If the dispatching 

railroad does not have maintenance 

responsibility for the highway-rail or 

pathway grade crossing, the dispatching 

railroad shall promptly contact the 

railroad having maintenance 

responsibility for the highway-rail or 

pathway grade crossing, which shall 

timely investigate the report; and, if the 

report is confirmed, shall remove the 

visual obstruction, if it is lawful and 

feasible to do so. FRA recognizes that in 

certain instances a visual obstruction 

may not be removed, such as a natural 

visual obstruction due to the steepness 

of the road or path approaching the 

crossing or a visual obstruction due to 

the curvature of the track, or it may not 

be lawful to do so. Therefore, proposed 

§ 234.305(f)(2) imposes a duty on the 

maintaining railroad to remove the 

visual obstruction only if it is lawful 

and feasible to do so. FRA seeks 

comment on what types of visual 

obstructions are not feasible to remove. 

Proposed § 234.305(g) is the general 

rule on response to reports of other 

unsafe conditions at highway-rail or 

pathway grade crossings. Proposed 

§ 234.305(g)(1) states that if the railroad 

receives a report related to a safety 

device at a highway-rail or pathway 

grade crossing, such as a downed 

crossbuck, that is not covered by 

proposed § 234.305(a), (b), or (c), and 

the railroad has maintenance 

responsibility for the device, the 

railroad must timely investigate the 

report, and if the railroad finds that the 

unsafe condition exists, the railroad 

must timely correct it. However, if the 

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railroad that receives the report does not 

have maintenance responsibility over 

the device, upon receipt of the report, 

the railroad must timely inform the 

railroad with maintenance 

responsibility for correcting the unsafe 

condition. The railroad with 

maintenance responsibility must then 

timely investigate the report and if it 

finds that the unsafe condition exists, it 

must timely correct it if it is lawful and 

feasible to do so. FRA seeks comment 

on what types of other unsafe 

conditions are not feasible to correct. 

Proposed § 234.305(g)(2) states that if 

the dispatching railroad receives a 

report relating to any other unsafe 

condition at the highway-rail or 

pathway grade crossing that is not 

covered by proposed § 234.305(g)(1) and 

the dispatching railroad is also the 

maintaining for the grade crossing, the 

dispatching railroad shall timely 

investigate the report and if it finds that 

the unsafe condition exists, the 

dispatching railroad shall timely correct 

it if it is lawful and feasible to do so. 

If the dispatching railroad is not the 

maintaining railroad, the dispatching 

railroad shall timely inform the 

maintaining railroad of the report and 

the maintaining railroad shall timely 

investigate the report. If, after 

investigating the report, the maintaining 

railroad finds that the unsafe condition 

exists, the maintaining railroad shall 

timely correct it if it is lawful and 

feasible to do. 

Paragraph (h) is the general rule on 

contacting the maintaining railroad. If 

the dispatching railroad is not the same 

as the maintaining railroad, the 

maintaining railroad shall provide the 

dispatching railroad with sufficient 

contact information by which the 

dispatching railroad may immediately 

contact the maintaining railroad upon 

receipt of a report if necessary. 

Furthermore, the maintaining railroad 

shall not use an automated answering 

service for the purpose of receiving a 

call from the dispatching railroad. 

Section 234.307 Third-Party 

Telephone Service 

Proposed § 234.307 would address the 

third-party telephone service that a 

dispatching railroad may use to receive 

reports concerning an unsafe condition 

at a highway-rail or pathway grade 

crossing pursuant to proposed 

§ 234.303. 

For a railroad to ‘‘directly’’ receive 

calls reporting unsafe conditions at a 

crossing as required by proposed 

§ 234.303, FRA proposes that one entity 

is the maximum number of entities that 

may exist between (1) a caller reporting 

an unsafe condition at a grade crossing 

and (2) the railroad. FRA believes that 

allowing more than one entity in 

between could potentially delay the 

railroad’s receipt of the report and 

therefore delay its response to the 

unsafe condition to the extent that the 

ENS would not be effective. Proposed 

§ 234.307 sets forth the requirements for 

the third-party telephone service. 

FRA recognizes that many regional 

and short line railroads may not have 

the capability and resources to set up 

and operate a 24-hour system to respond 

to reports of unsafe conditions at 

highway-rail and pathway grade 

crossings. To ensure that the public can 

call in such reports and that more 

dispatching railroads can receive the 

reports, the proposed rule allows 

railroads to use a third-party telephone 

service. 

Paragraph (a) permits a railroad to use 

a third-party telephone service to 

receive reports pursuant to proposed 

§ 234.303. FRA believes that it is in the 

railroad’s interest to use a third-party 

telephone service that is in the business 

of receiving and processing calls from 

the public because that is its specialty. 

Even if the railroad uses a third-party 

telephone service, the railroad 

ultimately remains responsible for 

receiving the report received by the 

third party, and the railroad is 

responsible for taking the appropriate 

remedial action as required by proposed 

§ 234.305 and complying with the 

proper recordkeeping requirements 

proposed in § 234.313. The third-party 

telephone service is merely an extension 

of the railroad. The third-party service 

must be reached directly by the 

telephone number placed on the sign 

pursuant to proposed § 234.309. 

Furthermore, the third-party service is 

prohibited from using an automated 

answering service, as defined in 

proposed § 234.301, to receive calls. The 

railroad remains responsible for 

ensuring that an automated answering 

service is not used. 

Proposed paragraph (b) obliges a 

railroad that uses the third-party service 

to provide the service with sufficient 

contact information so that when the 

third-party service receives a report of 

an unsafe condition at a grade crossing, 

it can immediately contact the railroad. 

The railroad is prohibited from using an 

automated answering service to receive 

calls from the third-party service. There 

may be an unsafe condition for which 

immediate action by the railroad is 

necessary, such as a disabled vehicle 

blocking a track at the crossing; 

therefore, the contact information that 

the railroad provides the third-party 

service must be sufficient to the extent 

that when the third-party service 

contacts the railroad, a railroad 

employee answers the call and takes the 

appropriate action necessary under 

proposed § 234.305. The responsibility 

of the third-party service is solely to 

receive reports and relay those reports 

to the railroad; any remedial action that 

is necessary to correct the unsafe 

condition is the responsibility of the 

railroad. 

Proposed paragraph (b) also requires a 

railroad to promptly inform FRA of its 

intent to use a third-party service to 

receive reports pursuant to proposed 

§ 234.303. The railroad must also 

provide FRA with the contact 

information of the third-party service 

that the railroad intends to use. Further, 

the railroad must provide FRA with a 

list of the grade crossings about which 

the third-party service will be receiving 

reports pursuant to proposed § 234.303. 

This information will allow FRA to 

evaluate whether the use of a third-party 

service substantially increases the 

railroad’s response time to the extent 

that, because of the use of the service, 

the railroad is no longer considered to 

be receiving calls ‘‘directly.’’ Finally, 

proposed paragraph (b) reaffirms the 

requirement that once a railroad 

receives a report of an unsafe condition 

at a grade crossing pursuant to proposed 

§ 234.303, the railroad must, at a 

minimum, take the remedial action 

required by proposed § 234.305. 

Proposed paragraph (c) sets forth the 

duties of the third-party service. The 

third-party service is required to contact 

the contracting railroad immediately 

when the third-party service receives a 

report pursuant to proposed § 234.303. 

The third-party service must then 

provide the contracting railroad with a 

minimum amount of information. The 

first type of information that the thirdparty service must provide is the nature 

of the reported unsafe condition. The 

nature of the reported unsafe condition 

must fall into one of the categories listed 

in proposed § 234.303(b)(1)–(4) or 

(c)(1)–(4) so that the contracting railroad 

can take the appropriate remedial action 

as required by proposed § 234.305. 

Second, the third-party service must 

provide information on the location of 

the unsafe condition, which includes 

providing the U.S. DOT National 

Crossing Inventory File Number for the 

crossing. Third, the third-party service 

must inform the contracting railroad 

whether the person reporting the unsafe 

condition is a railroad employee, law 

enforcement officer, highway traffic 

official, or other employee of a public 

agency acting in an official capacity. 

The third-party service is required to 

provide this information so that the 

contracting railroad can determine 

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whether the report is a credible report 

of warning system malfunction and, if it 

is, the railroad can take the appropriate 

remedial action required by proposed 

§ 234.305 and existing subpart C. 

Finally, the third-party service must 

provide the contracting railroad with 

any additional information provided by 

the caller that may be useful to restore 

the crossing to a safe condition. 

Paragraph (d) ensures that the thirdparty service, in addition to the 

contracting railroad, is responsible for 

complying with proposed subpart E and 

that both the railroad and the third party 

service can be held liable for a violation 

of proposed subpart E. 

FRA recognizes that future advances 

in technology may provide 

opportunities for call-in systems that are 

not specifically described in this rule. 

FRA is willing to review any new 

technology and consider its 

applicability to the regulation, or 

consider amending the regulation in the 

future if warranted. FRA welcomes 

comments on any such technologies that 

meet the requirements of the proposed 

regulation. 

Section 234.309 Signs in General 

Proposed § 234.309 would specify the 

color, minimum required dimensions, 

contents, and other aspects of the signs 

that § 234.311 requires to be placed and 

maintained at highway-rail and pathway 

grade crossings as part of an ENS. A 

minimum amount of information must 

be placed on the sign so that the unsafe 

condition may be properly reported and 

remedied. This minimum information is 

the toll-free number established to 

receive reports pursuant to § 234.303(a) 

(or non-toll-free number as provided for 

in § 234.303(d)), an explanation of the 

purpose of the sign, and the U.S. DOT 

National Crossing Inventory File 

Number assigned to the crossing. To 

maintain a certain amount of 

consistency among the signs so that a 

grade crossing user may be able to easily 

identify and understand it, FRA 

proposes that the sign dimensions must 

be at least 12 inches by 9 inches, the 

lettering must be, at a minimum, 1 inch 

in height, and the sign must have a 

white legend and border on a blue 

background. 

FRA is considering whether the final 

rule should require that the sign be 

designed in accordance with the 

applicable provisions of the FHWA’s 

MUTCD and Standard Highway Signs 

and Markings (SHSM) book. Currently, 

§ 8B.18 of the 2009 edition of the 

MUTCD provides standards and 

guidance regarding emergency 

notification signs. Figure 1 is the 

example of an emergency notification 

sign provided in the MUTCD. Further, 

the new edition of the SHSM book, 

which had not been published at the 

time of the writing of this NPRM, 

provides two alternate designs for 

emergency notification signs, one of 

which is identical to the emergency 

notification sign provided in the 

MUTCD. The SHSM can be found at 

http://mutcd.fhwa.dot.gov/ 

shsm_interim/index.htm. Figure 2 is an 

alternate design found in the new 

edition of the SHSM book. FRA is 

seeking comment regarding which 

standards and guidance provided in the 

MUTCD and SHSM book should be 

adopted in the final rule as the 

requirements for the signs placed at 

crossings pursuant to proposed 

§§ 234.309 and 234.311. 

Section 234.311 Sign Placement and 

Maintenance 

Proposed § 234.311 would require 

signs of the type specified by proposed 

§ 234.309 to be placed and maintained 

at highway-rail and pathway grade 

crossings. The maintaining railroad 

would be responsible for the proper 

placement and maintenance of the sign. 

The dispatching railroad would be 

responsible for providing the telephone 

number posted on the sign to the 

maintaining railroad if the two are not 

the same railroad. 

A sign must be placed and maintained 

for each direction of traffic at that grade 

crossing. This will ensure that grade 

crossing users will be able to see the 

sign from whichever direction they 


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approach the crossing. A pathway grade 

crossing is considered to have a 

minimum of two directions of traffic 

unless specifically designed for traffic in 

one direction only. 

Each sign placed at a highway-rail or 

pathway grade crossing must be placed 

and maintained so that the sign is 

conspicuous to the users of the roadway 

or pathway, optimizes nighttime 

visibility, minimizes the effect of mud 

splatter and debris, and does not 

obscure any other sign at the crossing. 

FRA does not propose a specific 

location at a crossing where a sign must 

be placed because such a specific 

location may not exist at every crossing. 

However, FRA proposes general 

requirements regarding the placement of 

the sign so that the sign may be easily 

seen and does not interfere with any 

other traffic control devices at the 

crossing. FRA is seeking comment on 

sign placement so the appropriate 

placement for optimal visual 

effectiveness of the sign may be 

determined. FRA is also seeking 

comment on how many and where to 

place signs at a highway-rail or pathway 

grade crossing in which there are 

multiple railroads dispatching trains on 

one or more tracks through that 

crossing. 

Proposed paragraph (c) does not 

prohibit the placement of an ENS sign 

on a signal bungalow; however, a sign 

on the signal bungalow and nowhere 

else at the crossing does not comply 

with proposed § 234.311. It is difficult 

to envision a scenario in which placing 

the sign on the signal bungalow would 

satisfy all of the requirements in 

proposed § 234.311(b), particularly, 

§ 234.311(b)(1), which requires a sign to 

be placed at a grade crossing so that it 

is conspicuous to the users of the 

roadway or pathway. FRA seeks 

comment on other locations at grade 

crossings where the placement of the 

sign would not satisfy proposed 

§ 234.311(b). 

As mentioned previously, FRA is 

considering whether to expand 

proposed subpart E to cover all public 

highway-rail grade crossings located 

within a port or dock facility, railroad 

yard, or private industrial facility and to 

make such a facility or yard subject to 

part 234. In turn, if these types of 

crossings would be covered by proposed 

subpart E, FRA is considering whether 

to treat all of the crossings located in 

such a facility or yard as a single public 

highway-rail grade crossing for the 

purposes of proposed subpart E. If these 

crossings are treated as a single public 

highway-rail grade crossing, FRA is 

considering whether to require a sign 

that conforms to proposed § 234.309 to 

be placed and maintained as provided 

under proposed § 234.311(a) and (b) at 

each point at which a public highway 

enters the facility or yard. FRA seeks 

comment whether this would be the 

optimal location for the sign for these 

types of facilities or yards if they are 

covered. 

Section 234.313 Recordkeeping 

Proposed § 234.313 sets forth the 

recordkeeping requirements for this 

proposed subpart that apply to each 

railroad subject to this proposed 

subpart. Proposed paragraph (a) of this 

section requires each railroad to keep 

records pertaining to compliance with 

this subpart. Records may be kept on 

paper forms generated by the railroad or 

kept electronically in a manner that 

conforms with proposed § 234.315. Each 

railroad must keep the following 

information for each report received 

under the proposed subpart: (1) The 

nature of the reported unsafe condition; 

(2) the location of the grade crossing (by 

highway name and U.S. DOT National 

Crossing Inventory File Number); (3) the 

time and date of receipt of the report by 

the railroad; (4) whether the person who 

provided the report was a railroad 

employee, law enforcement officer, 

highway traffic official, or other 

employee of a public agency acting in 

an official capacity; (5) the actions taken 

by the railroad prior to rectifying the 

reported unsafe condition; (6) the 

actions taken by the railroad to rectify, 

if possible, the reported grade crossing 

problem; (7) the date and time at which 

the reported unsafe condition was 

rectified; and (8) if the railroad is 

required to contact the railroad with 

maintenance responsibility, the time 

and date the railroad contacted the 

railroad having maintenance 

responsibility. FRA is considering 

whether to require the railroad to also 

record the caller’s name and contact 

information so the railroad can followup with the caller if necessary. FRA 

seeks comment on what other 

information the railroad should be 

required to record. 

Subpart C at 49 CFR 234.109 

(§ 234.109) already has specific 

recordkeeping requirements for a 

railroad that receives a credible report of 

warning system malfunction; therefore, 

there is no separate recordkeeping 

requirement in proposed subpart E for 

credible reports of warning system 

malfunction. Proposed § 234.313(c) 

requires that each railroad retain for at 

least one year (from the latest date of 

railroad activity in response to a report 

received under this part) all records that 

it makes that are required by this 

section. Records required to be kept 

must be made available to FRA as 

provided by statute (49 U.S.C. 20107). 

Section 234.315 Electronic 

Recordkeeping 

Proposed § 234.315 would address the 

keeping of records required by proposed 

subpart E electronically. This proposed 

section applies to railroads that choose 

to conduct electronic recordkeeping 

under proposed subpart E. These 

proposed electronic recordkeeping 

requirements are modeled after the 

requirements set forth in 49 CFR 

217.9(g). 

If a railroad chooses to conduct 

electronic recordkeeping of records 

required by proposed subpart E, the 

railroad must provide adequate security 

measures to limit employee access to its 

electronic data processing system and 

must prescribe who is allowed to create, 

modify, or delete data from the 

database. Although FRA does not 

identify the management position 

authorized to institute changes in the 

database, the railroad must indicate the 

source authorized to make such 

changes. The railroad must have a 

computer and a facsimile or printer 

connected to the computer to retrieve 

and produce records for immediate 

review. Section 217.9(g) requires the 

computer to be a desk-top computer. 

However, FRA recognizes that all 

railroads may not necessarily maintain 

their records on a desktop computer, so 

rather than adopting this requirement 

from § 217.9(g); FRA proposes to allow 

railroads the flexibility to maintain their 

records on other types of computers, 

such as laptops. However, regardless of 

the computer on which the railroad 

maintains its electronic records, it must 

be possible for a facsimile or printer to 

be connected to the computer to retrieve 

and produce records for immediate 

review. The documents must be made 

available for FRA inspection during 

‘‘normal business hours,’’ which FRA 

interprets as the time, any day of the 

week, when railroads conduct their 

regular business transactions. 

Nevertheless, FRA reserves the right to 

review and examine the documents 

prepared in accordance with the 

applicable section of part 234 at any 

reasonable time if situations warrant. 

Each railroad must also designate who 

will be authorized to authenticate the 

hard copies produced from the 

electronic format. In short, each railroad 

electing to retain its records 

electronically must ensure the integrity 

of the information and prevent possible 

tampering of data, enabling FRA to fully 

execute its enforcement responsibilities. 

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Section 234.317 Compliance Dates 

Proposed § 234.317 would state the 

date by which each of various groups of 

railroads must comply with this 

proposed subpart. If a railroad does not 

have an ENS of any kind in place on the 

effective date of the subpart, the railroad 

has 18 months from the effective date of 

the final rule to implement a system that 

conforms to the subpart. This paragraph 

applies to railroads that do not have 

anything any place that could be 

considered an ENS as defined in 

§ 234.301. However, if a railroad has a 

system in place, but some or all of the 

components do not conform to this 

subpart, the amount of time the railroad 

has to bring it into compliance depends 

on which component is non-compliant. 

If a railroad already has its own ENS 

telephone service or is using a thirdparty telephone service on the effective 

date of this subpart, but that telephone 

service does not comply with the 

requirements proposed in §§ 234.303 

and 243.307, the railroad has six months 

from the effective date of the final rule 

to bring the telephone service into 

compliance. 

If a railroad already has ENS signs in 

place on the effective date, but those 

signs do not comply with the 

requirements set forth in proposed 

§ 234.309, subject to proposed 

§ 234.317(d)(2), the railroad has five 

years from the effective date of the final 

rule to bring the signs into compliance. 

If the railroad replaces a nonconforming sign before the five-year 

period, the railroad must replace the 

sign with one that conforms to proposed 

§ 234.309. However, there is an 

exception to this five-year period. To 

ensure that a non-conforming sign is 

still large enough to be visible to the 

majority of grade crossing users, if a sign 

is less than 60 square inches, the 

railroad has 18 months from the 

effective date of the final rule to bring 

the sign into compliance with proposed 

§ 234.309. If the railroad replaces a nonconforming sign before the 18-month 

period, the railroad must replace the 

sign with one that conforms to proposed 

§ 234.309. 

FRA is considering whether to reduce 

the amount of time that the railroad has 

to bring the sign into compliance based 

on whether the non-compliant element 

of the sign effectively renders the sign 

useless. For example, if a sign does not 

comply because the telephone number 

on the sign is not the correct number, 

the sign is effectively useless because a 

person is unable to report any unsafe 

conditions at the crossing to the 

appropriate railroad. In these instances 

it is as if there were not a sign at the 

crossing, thus, the railroad would then 

have 18 months, as required by 

§ 234.317(a), to place a sign at the 

crossing. Therefore, FRA is considering 

reducing the compliance period from 

five years to 18 months if the noncompliant element of the sign 

effectively renders the sign useless. FRA 

seeks comment regarding reducing the 

compliance period. 

If a railroad already has ENS signs in 

place on the effective date, but the 

placement of those signs does not 

comply with the requirements set forth 

in proposed § 234.311, the railroad has 

five years from the effective date of the 

final rule to ensure the placement of the 

signs conforms to proposed § 234.311. If 

the railroad changes the placement of 

the sign before the expiration of the fiveyear period, the placement of the sign 

must conform to proposed § 234.311. 

Furthermore, if a railroad replaces a sign 

before the expiration of the five-year 

period so that the sign conforms to 

proposed § 234.309 and the placement 

of the sign does not conform to 

proposed § 234.311, the railroad must 

also change the placement of the sign so 

that it conforms to proposed § 234.311. 

FRA is considering whether to reduce 

the amount of time that the railroad 

would have to bring the placement of 

the sign into compliance if the only sign 

at the crossing is placed on the signal 

bungalow. As mentioned previously, 

signs placed on a signal bungalow are 

not considered to be conspicuous to the 

grade crossing user; therefore, FRA 

believes that giving the railroad five 

years to replace signs on the bungalow 

may be excessive and is considering 

reducing this period to 18 months. FRA 

welcomes comments regarding reducing 

the compliance period from five years to 

18 months. 

If a railroad already conducts 

recordkeeping as part of its ENS on the 

effective date, but the recordkeeping 

does not conform to proposed § 234.313, 

the railroad has six months from the 

effective date of the final rule to ensure 

that the recordkeeping conforms to 

proposed § 234.313. 

V. Regulatory Impact 

A. Executive Order 12866 and 13563 

and DOT Regulatory Policies and 

Procedures 

This proposed rule has been 

evaluated in accordance with existing 

policies and procedures and determined 

to be non-significant under both 

Executive Order 12866 and 13563 and 

DOT policies and procedures. See 44 FR 

11034; February 26, 1979. FRA has 

prepared and placed in the docket a 

regulatory evaluation addressing the 

economic impact of this proposed rule. 

FRA has met with and made 

presentations to those who are likely to 

be affected by this rule in order to seek 

their views on the rule. 

As part of the regulatory evaluation, 

FRA has assessed quantitative 

measurements of the cost streams 

expected to result from the 

implementation of this proposed rule. 

For the 20-year period analyzed, the 

estimated quantified cost that would be 

imposed on industry totals $36.6 

million with a present value (PV, 7 

percent) of $18.9 million. The 

requirements that are expected to 

impose the largest burdens relate to 

recordkeeping and the purchase and 

installation of signs at grade crossings. 

The table below presents the estimated 

costs associated with the proposed 

rulemaking. 

Section 234.303—Toll-free telephone service ........................ $2,052,898 

Section 234.307—Third-party 

telephone service .................. 3,520 

Section 234.309—Signs (materials) ...................................... 6,709,437 

Section 234.309—Signs (installation) .................................... 4,704,433 

Section 234.311—Post (materials) ...................................... 410,379 

Section 234.311—Post (installation) .................................... 345,293 

Section 234.313—Recordkeeping (initial) ...................... 363,571 

Section 234.313—Recordkeeping (remedial) ................ 4,265,979 

Total ................................... 18,855,511 

Dollars are discounted at a Present value 

rate of 7 percent. 

As part of the regulatory evaluation, 

FRA has explained what the likely 

benefits for this proposed rule would be, 

and provided numerical assessments of 

the potential value of such benefits. The 

proposed rulemaking is expected to 

improve railroad safety by ensuring that 

all highway-rail and pathway grade 

crossings have adequate signage to 

enable the public to inform the railroad 

of emergencies and other unsafe 

conditions. The primary benefits 

include a heightened safety 

environment in grade crossing areas and 

potential avoidance of casualties, 

fatalities, and damage through earlier 

awareness of track obstructions, 

including stalled highway vehicles, and 

other safety hazards. Thus, in general, 

the proposed rule should decrease grade 

crossing accidents and incidents and 

associated casualties and damages. FRA 

believes the value of the anticipated 

safety benefits would meet or exceed the 

cost of implementing the proposed rule. 

Over a 20-year period, this analysis 

finds that $49.2 million in cost savings 

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would accrue through casualty 

prevention and damage avoidance. The 

discounted value of this is $23.4 million 

(PV, 7 percent). The table below 

presents the estimated benefits 

associated with the proposed rule. 

10.2 Fatalities (Prevented) ... $17,663,562 

10.3 Injuries (Prevented) ...... 4,908,998 

10.4 Highway Vehicle Damage (Avoided) ...................... 436,715 

10.5 Railroad Equipment 

Damage (Avoided) .............. 249,537 

10.6 Track/Structure Damage (Avoided) ...................... 138,718 

Total ................................. 23,397,531 

Dollars are discounted at a Present value 

rate of 7 percent. 

B. Regulatory Flexibility Act and 

Executive Order 13272 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) and Executive 

Order 13272 (67 FR 53461; August 16, 

2002) require agency review of proposed 

and final rules to assess their impact on 

small entities. The Regulatory 

Flexibility Act requires an agency to 

review regulations to assess their impact 

on small entities. An agency must 

conduct a regulatory flexibility analysis 

unless it determines and certifies that a 

rule is not expected to have a significant 

impact on a substantial number of small 

entities. Pursuant to the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 605(b), 

the FRA Administrator certifies that this 

proposed rule will not have a significant 

economic impact on a substantial 

number of small entities. No small 

railroads will be affected by the rule. 

FRA has prepared and placed in the 

docket this certification. FRA requests 

comments on this certification as well 

as all other aspects of this NPRM. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601 as including a small business 

concern that is independently owned 

and operated, and is not dominant in its 

field of operation. The U.S. Small 

Business Administration (SBA) has 

authority to regulate issues related to 

small businesses, and stipulates in its 

size standards that a ‘‘small entity’’ in 

the railroad industry is a for profit ‘‘linehaul railroad’’ that has fewer than 1,500 

employees, a ‘‘short line railroad’’ with 

fewer than 500 employees, or a 

‘‘commuter rail system’’ with annual 

receipts of less than seven million 

dollars. See ‘‘Size Eligibility Provisions 

and Standards,’’ 13 CFR part 121, 

subpart A. Additionally, 5 U.S.C. 601(5) 

defines as ‘‘small entities’’ governments 

of cities, counties, towns, townships, 

villages, school districts, or special 

districts with populations less than 

50,000. Federal agencies use a different 

standard for small entities, in 

consultation with SBA and in 

conjunction with public comment. 

Pursuant to that authority FRA has 

published a final statement of agency 

policy that formally establishes ‘‘small 

entities’’ or ‘‘small businesses’’ as being 

railroads, contractors and hazardous 

materials shippers that meet the revenue 

requirements of a Class III railroad as set 

forth in 49 CFR 1201.1–1, which is $20 

million or less in inflation-adjusted 

annual revenues, and commuter 

railroads or small governmental 

jurisdictions that serve populations of 

50,000 or less. See 68 FR 24891, May 9, 

2003, codified at appendix C to 49 CFR 

part 209. The $20-million limit is based 

on the Surface Transportation Board’s 

revenue threshold for a Class III 

railroad. Railroad revenue is adjusted 

for inflation by applying a revenue 

deflator formula in accordance with 49 

CFR 1201.1–1. FRA is using this 

definition for this rulemaking. 

Certain provisions of this proposed 

rule would apply to all railroads that 

dispatch trains over highway-rail or 

pathway grade crossings. Out of the 674 

Class III railroads, FRA estimates there 

are 117 small railroads that do not have 

a dispatching function as part of their 

operations and, therefore, would not be 

affected by these certain provisions of 

this regulation. Therefore, FRA has 

concluded that 557 small railroads 

would be affected by those provisions of 

this rule. However, the impact on these 

small railroads would not be significant. 

Other provisions of this proposed rule 

would require railroads that own track 

at highway-rail or pathway grade 

crossings (or maintain grade crossing 

signal warning systems at such 

crossings per rule text) to incur fixed 

costs, such as the purchase of signs and 

posts, which are directly proportional to 

the number of crossings. Additionally, 

the number of calls received is also 

expected to be proportional to the 

number of highway-rail or pathway 

grade crossings owned or maintained by 

each railroad. 

Smaller railroads generally have fewer 

highway-rail or pathway grade crossings 

than larger railroads do. Although each 

grade crossing may have the same 

probability of being the subject of an 

ENS-generated call, the total burden on 

smaller railroads should be smaller, 

when implementing and complying 

with the major requirements of 

purchasing signage and recordkeeping. 

For example, FRA has found that there 

are 137 extremely small railroads, 

accounting for 4,408 grade crossings. On 

average, each of the 137 railroads has 

approximately 32 grade crossings. 

Additionally, the average total 

implementation cost for these railroads 

is approximately $2,300 per railroad for 

the first year and $519 per railroad per 

year for each of the following 14 years. 

Expressed differently, the cost for these 

railroads to comply with this proposed 

rule is about $72 per crossing per 

railroad for the first year and 

approximately $16 per crossing per 

railroad for each of the following 14 

years. Railroads with just a few 

crossings would incur minimal costs to 

comply with this proposed rule. Thus, 

FRA believes that this proposed 

regulation would not have a significant 

impact on these railroads. 

Some small railroads are subsidiaries 

of large short-line holding companies 

with the expertise and resources 

comparable to larger railroads. The 

proposed requirements to install two 

new signs per highway-rail or pathway 

grade crossing and provide a toll-free 

telephone number to report emergencies 

and other unsafe conditions would not 

have a significant impact on these 

railroads. Short lines affected by this 

proposed rule might collaborate with 

other small railroads to jointly 

implement its requirements, which 

would lower the burden on these small 

railroads. 

Previously, FRA sampled small 

railroads and found that revenue 

averaged approximately $4.7 million 

(not discounted) in 2006. One percent of 

average annual revenue per small 

railroad, or $47,000, is far less than the 

average annual cost that these railroads 

would incur because of this proposed 

rule. FRA concludes that the proposed 

burden would not have a noticeable 

impact on the competitive position of 

small entities, or on the small entity 

segment of the railroad industry as a 

whole. 

Pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601(b)), FRA certifies that 

this proposed rule would not have a 

significant impact on a substantial 

number of small entities. Although a 

substantial number of small railroads 

would be affected by the proposed rule, 

these entities would be significantly 

impacted. A more thorough discussion 

on the basis of this certification can be 

found in Appendix B of the Regulatory 

Evaluation, which has been submitted 

to the docket for this proposed 

rulemaking. FRA invites all interested 

parties to submit data and information 

regarding the potential economic impact 

that would result from adoption of the 

proposals in this NPRM. FRA will 

consider all comments received in the 

public comment process when making a 

final determination for certification of 

the final rule. 

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12006 Federal Register / Vol. 76, No. 43 / Friday, March 4, 2011 / Proposed Rules 

C. Federalism 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

State and local governments, or the 

agency consults with State and local 

government officials early in the process 

of developing the regulation. Where a 

regulation has federalism implications 

and preempts State law, the agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

This NPRM has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. FRA has determined that the 

proposed rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, nor on the 

distribution of power and 

responsibilities among the various 

levels of government. In addition, FRA 

has determined that this proposed rule 

will not impose substantial direct 

compliance costs on State and local 

governments. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

This NPRM amends part 234, which 

contains FRA principal regulations 

regarding grade crossing safety. 

Although the final rule on State-specific 

highway-rail grade crossing action plans 

published June 28, 2010 (75 FR 36552) 

removed the preemptive effect provision 

in part 234, FRA notes that this part 

could have preemptive effect by the 

operation of law under a provision of 

the former Federal Railroad Safety Act 

of 1970 (former FRSA), that is, 49 U.S.C. 

20106 (Sec. 20106). Sec. 20106 provides 

that States may not adopt or continue in 

effect any law, regulation, or order 

related to railroad safety or security that 

covers the subject matter of a regulation 

prescribed or order issued by the 

Secretary of Transportation (with 

respect to railroad safety matters) or the 

Secretary of Homeland Security (with 

respect to railroad security matters), 

except when the State law, regulation, 

or order qualifies under the ‘‘essentially 

local safety or security hazard’’ 

exception to Sec. 20106. 

In sum, FRA has analyzed this 

proposed rule in accordance with the 

principles and criteria contained in 

Executive Order 13132. As explained 

above, FRA has determined that this 

proposed rule has no federalism 

implications, other than the preemption 

of State laws covering the subject matter 

of this proposed rule, which occurs by 

operation of law under 49 U.S.C. 20106 

whenever FRA issues a safety rule or 

order. Accordingly, FRA has determined 

that preparation of a federalism 

summary impact statement for this 

proposed rule is not required. 

D. International Trade Impact 

Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and where 

appropriate, that they be the basis for 

U.S. standards. This rulemaking is 

purely domestic in nature and is not 

expected to affect trade opportunities 

for U.S. firms doing business overseas or 

for foreign firms doing business in the 

United States. 

E. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. The 

sections that contain the new 

information collection requirements are 

duly designated, and the estimated time 

to fulfill each requirement is as follows: 

CFR section/subject Respondent universe Total annual 

responses 

Average time 

per response 

Total annual 

burden hours 

234.303(b)—Report to ENS—Unsafe Condition at HighwayRail Crossing.594 railroads ............... 63,891 reports ............ 1 minute ...... 1,065 hours. 

234.303(c)—Report to ENS Service—Unsafe Condition at 

Pathway Grade Crossing.

594 railroads ............... 1,860 reports .............. 1 minute ...... 155 hours. 

234.305(a)—Reported Malfunction of Warning System at 

Highway-Rail Grade Crossing Necessitating Immediate 

Contact by Dispatching RR of All Trains Authorized to Operate through That Crossing.

594 railroads ............... 465 contacts ............... 1 minute ...... 8 hours. 

—Contact of Crossing Maintenance Railroad by Dispatching 

Railroad.

594 railroads ............... 465 contacts ............... 1 minute ...... 8 hours. 

—(b) Other Report of Warning System Malfunction at Highway-Rail Grade Crossing Necessitating Immediate Contact 

by Dispatching RR of All Trains Authorized to Operate 

Through That Crossing.

594 railroads ............... 925 contacts ............... 1 minute ...... 15 hours. 

—Other Report of Warning System Malfunction at Highwayrail Grade Crossing Necessitating Prompt Contact by Dispatching RR of Law Enforcement Agency to Direct Traffic/ 

Maintain Safety.

594 railroads ............... 925 contacts ............... 1 minute ...... 15 hours. 

—(2) Other Report of Warning System Malfunction at Highway-rail Grade Crossing Necessitating Immediate Contact 

by Dispatching RR of All Trains Authorized to Operate 

Through That Crossing.

594 railroads ............... 925 contacts ............... 1 minute ...... 15 hours. 

—Dispatching RR Contact of Law Enforcement Authority to 

Direct Traffic/Maintain Safety.

594 railroads ............... 920 contacts ............... 1 minute ...... 15 hours. 

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CFR section/subject Respondent universe Total annual 

responses 

Average time 

per response 

Total annual 

burden hours 

—Dispatching RR Contact of Maintaining RR re: Malfunction .. 594 railroads ............... 920 contacts ............... 1 minute ...... 15 hours. 

234.305(c)(1)—Report of Warning System Failure at Pathway 

Grade Crossing and Need of Dispatching RR to Contact All 

Trains Operating Through It.

594 railroads ............... 2 contacts ................... 1 minute ...... .03333 hour. 

—Report of Warning System Failure at Pathway Grade Crossing and Need of Dispatching RR to Contact Law Enforcement Agencies.594 railroads ............... 2 contacts ................... ..................... .03333 hour. 

—(d) Dispatching RR Contact of All Trains Operating Through 

Highway-rail or Pathway Grade Crossing Upon Receiving 

Report of Disabled Vehicle or Other Obstruction.

594 railroads ............... 2,556 contacts ............ 1 minute ...... 43 hours. 

—Dispatching RR Contact of Law Enforcement Authority 

Upon Receiving Report of Disabled Vehicle or Other Obstruction.

594 railroads ............... 2,556 contacts ............ 1 minute ...... 43 hours. 

—(h) Maintaining RR Provision of Contact Information to Dispatching RR.594 railroads ............... 10 contacts ................. 1 minute ...... .1667 hour. 

234.307—3rd Party Telephone Service ..................................... 594 railroads ............... 50 contacts ................. 15 minutes .. 13 hours. 

—RR Contact Information to Service ........................................ 594 railroads ............... 50 letters ..................... 60 minutes .. 50 hours. 

—RR Notification to FRA of Use of Service .............................. 594 railroads ............... 100 contacts ............... 1 minute ...... 2 hours. 

—3rd Party Notification to RR of Report Pursuant to section 

234.303.

50 third parties ............ 100 contacts ............... 1 minute ...... 2 hours. 

234.309(a)—ENS Signs—General—Provision of ENS Telephone Number to Maintaining RR by Dispatching RR.594 railroads ............... 10 contacts ................. 30 mintues .. 5 hours. 

—(b) ENS Signs Located at Highway-Rail or Pathway Grade 

Crossings as required by section 234.311 with Necessary 

Information to Receive Reports Required under section 

234.303.

594 railroads ............... 422,802 signs ............. 15 minutes .. 105,701 hrs. 

234.313—Recordkeeping—Records of Reported Unsafe Conditions Pursuant to Section 234.303.594 railroads ............... 186,000 records .......... 4 minutes .... 12,400 

hours. 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. Pursuant to 

44 U.S.C. 3506(c)(2)(B), FRA solicits 

comments concerning the following 

issues: whether these information 

collection requirements are necessary 

for the proper performance of the 

functions of FRA, including whether the 

information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan, Information Clearance 

Officer, at 202–493–6292, or Ms. 

Kimberly Toone at 202–493–6132. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Mr. Robert Brogan 

or Ms. Kimberly Toone, Federal 

Railroad Administration, 1200 New 

Jersey Avenue, SE., 3rd Floor, 

Washington, DC 20590. Comments may 

also be submitted via e-mail to Mr. 

Brogan or Ms. Toone at the following 

address: Robert.Brogan@dot.gov; 

Kimberly.Toone@dot.gov 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

F. Environmental Assessment 

FRA has evaluated this proposed rule 

in accordance with its ‘‘Procedures for 

Considering Environmental Impacts’’ 

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this proposed rule is 

not a major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

(See 64 FR 28547, May 26, 1999.) 

Section 4(c)(20) reads as follows: ‘‘(c) 

Actions categorically excluded. Certain 

classes of FRA actions have been 

determined to be categorically excluded 

from the requirements of these 

Procedures as they do not individually 

or cumulatively have a significant effect 

on the human environment. * * * The 

following classes of FRA actions are 

categorically excluded: * * * (20) 

Promulgation of railroad safety rules 

and policy statements that do not result 

in significantly increased emissions or 

air or water pollutants or noise or 

increased traffic congestion in any mode 

of transportation.’’ 

In accordance with section 4(c) and 

(e) of FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

As a result, FRA finds that this 

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12008 Federal Register / Vol. 76, No. 43 / Friday, March 4, 2011 / Proposed Rules 

proposed rule is not a major Federal 

action significantly affecting the quality 

of the human environment. 

G. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and Tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and Tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any 1 year, and 

before promulgating any final rule for 

which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

Tribal governments and the private 

sector. For the year 2010, this monetary 

amount of $100,000,000 has been 

adjusted to $140,800,000 to account for 

inflation. This proposed rule would not 

result in the expenditure of more than 

$140,800,000 by the public sector in any 

one year, and thus preparation of such 

a statement is not required. 

H. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 66 FR 28355 (May 22, 

2001). Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates, or is expected to lead to 

the promulgation of, a final rule or 

regulation (including a notice of 

inquiry, advance notice of proposed 

rulemaking, and notice of proposed 

rulemaking) that (1)(i) is a significant 

regulatory action under Executive Order 

12866 or any successor order and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this NPRM in accordance 

with Executive Order 13211. FRA has 

determined that this NPRM will not 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

Consequently, FRA has determined that 

this regulatory action is not a 

‘‘significant energy action’’ within the 

meaning of Executive Order 13211. 

I. Privacy Act Statement 

Interested parties should be aware 

that anyone is able to search the 

electronic form of all comments 

received into any agency docket by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78), or you 

may visit http://www.regulations.gov. 

List of Subjects in 49 CFR Part 234 

Highway safety; Penalties; Railroad 

safety; and Reporting and recordkeeping 

requirements. 

The Proposal 

In consideration of the foregoing, FRA 

proposes to amend part 234 of chapter 

II, subtitle B of title 49, Code of Federal 

Regulations, as follows: 

PART 234—GRADE CROSSING 

SIGNAL SYSTEM SAFETY, STATE 

ACTION PLANS, AND EMERGENCY 

NOTIFICATION SYSTEMS 

1. The authority citation for part 234 

is revised to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20152, 

21301, 21304, 21311, 22501 note; Pub. L. 

110–432, Div. A, § 202; 28 U.S.C. 2461, note; 

and 49 CFR 1.49. 

2. The heading for part 234 is revised 

to read as set forth above. 

3. Section 234.1 is revised to read as 

follows: 

§ 234.1 Scope. 

(a) This part imposes minimum 

maintenance, inspection, and testing 

standards for highway-rail grade 

crossing warning systems. This part also 

prescribes standards for the reporting by 

railroad and public agency employees of 

failures of such systems and prescribes 

minimum actions that railroads must 

take when such warning systems 

malfunction. This part also requires 

particular identified States to develop 

State highway-rail grade crossing action 

plans. This part also prescribes 

minimum requirements that railroads 

establish systems for receiving toll-free 

telephone calls from the public at large 

about unsafe conditions at highway-rail 

and pathway grade crossings and for 

taking certain actions in response to 

those calls. 

(b) This part does not restrict a 

railroad from adopting and enforcing 

additional or more stringent 

requirements not inconsistent with this 

part. 

4. Section 234.3 is revised to read as 

follows: 

§ 234.3 Application and responsibility for 

compliance. 

(a) With the exception of § 234.11, 

this part applies to all railroads, all 

contractors for railroads, and all 

subcontractors for railroads except the 

following: 

(1) Operations of a plant railroad as 

defined in § 234.5; 

(2) Rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation; or 

(3) Tourist, scenic, historic, or 

excursion operations conducted only on 

track used exclusively for that purpose 

(i.e., there is no freight, intercity 

passenger, or commuter passenger 

railroad operation on the track) and only 

on track inside an installation that is 

insular; i.e., the operations are limited 

to a separate enclave in such a way that 

there is no reasonable expectation that 

the safety of the public—except a 

business guest, a licensee of the railroad 

or an affiliated entity, or a trespasser— 

would be affected by the operation. An 

operation will not be considered insular 

if one or more of the following exists on 

its line: 

(i) A public highway-rail crossing that 

is in use; 

(ii) An at-grade rail crossing that is in 

use; 

(iii) A bridge over a public road or 

waters used for commercial navigation; 

or 

(iv) A common corridor with a 

railroad, i.e., its operations are within 

30 feet of those of any railroad. 

(b) Although the duties imposed by 

this subpart are generally stated in terms 

of the duty of a railroad, each person, 

including a contractor or subcontractor 

for a railroad, who performs any task 

covered by this subpart, shall perform 

that task in accordance with this 

subpart. 

5. Section 234.5 is revised by revising 

the definition of ‘‘Credible report of 

system malfunction’’ and adding 

definitions of ‘‘FRA’’ and ‘‘Plant railroad’’ 

in alphabetical order to read as follows: 

§ 234.5 Definitions. 

As used in this part— 

* * * * * 

Credible report of warning system 

malfunction means specific information 

regarding a malfunction at an identified 

highway-rail grade crossing, supplied by 

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a railroad employee, law enforcement 

officer, highway traffic official, or other 

employee of a public agency acting in 

an official capacity. 

* * * * * 

FRA means the Federal Railroad 

Administration, U.S. Department of 

Transportation. 

* * * * * 

Plant railroad means a plant or 

installation that owns or leases a 

locomotive, uses that locomotive to 

switch cars throughout the plant or 

installation, and is moving goods solely 

for use in the facility’s own industrial 

processes. The plant or installation 

could include track immediately 

adjacent to the plant or installation if 

the plant railroad leases the track from 

the general system railroad and the lease 

provides for (and actual practice entails) 

the exclusive use of that trackage by the 

plant railroad and the general system 

railroad for purposes of moving only 

cars shipped to or from the plant. A 

plant or installation that operates a 

locomotive to switch or move cars for 

other entities, even if solely within the 

confines of the plant or installation, 

rather than for its own purposes or 

industrial processes, will not be 

considered a plant railroad because the 

performance of such activity makes the 

operation part of the general railroad 

system of transportation. 

* * * * * 

6. The heading to subpart C of part 

234 is revised to read as follows: 

Subpart C—Response to Reports from 

Railroad and Public Agency 

Employees of Warning System 

Malfunction at Highway-Rail Grade 

Crossings. 

* * * * * 

7. Subpart E of part 234 is added to 

read as follows: 

Subpart E—Emergency Notification 

Systems for Reporting Unsafe 

Conditions at Highway-Rail and 

Pathway Grade Crossings 

Sec. 

234.301 Definitions. 

234.303 Telephonic notification of unsafe 

conditions at a highway-rail or pathway 

grade crossing. 

234.305 Remedial actions. 

234.307 Third-party telephone service. 

234.309 ENS signs in general. 

234.311 ENS sign placement and 

maintenance. 

234.313 Recordkeeping. 

234.315 Electronic recordkeeping. 

234.317 Compliance dates. 

§ 234.301 Definitions. 

As used in this subpart— 

Automated answering service means a 

type of answering service in which a 

telephone call is answered by any 

means other than an actual human being 

speaking live to the caller at the time 

that the call is made. 

Class II and Class III have the 

meaning assigned by regulations of the 

Surface Transportation Board (49 CFR 

part 1201; General Instructions 1–1), as 

those regulations may be revised and 

applied by order of the Board (including 

modifications in class threshold based 

on revenue deflator adjustments). 

Dispatching railroad means a railroad 

that dispatches or otherwise provides 

the authority for the movement of one 

or more trains through a highway-rail or 

pathway grade crossing. 

Emergency Notification System means 

a system in place by which a railroad 

receives, processes, and attends to 

reports of an unsafe condition at a 

highway-rail or pathway grade crossing 

through which it dispatches a train. An 

Emergency Notification System includes 

the following components: 

(1) Signs, placed and maintained at 

the grade crossings by the railroad 

responsible for maintaining the 

crossing, that display the information 

necessary for the public to report an 

unsafe condition at the grade crossing to 

the railroad that dispatches trains 

through the crossing; 

(2) The method that the dispatching 

railroad uses to receive and process a 

telephone call reporting the unsafe 

condition; 

(3) The remedial actions that the 

dispatching railroad takes to address the 

report of the unsafe condition; 

(4) The remedial actions that the 

maintaining railroad takes if the 

dispatching railroad does not have 

maintenance responsibility; and 

(5) The recordkeeping conducted by 

the railroad or railroads in response to 

the report of the unsafe condition at the 

grade crossing. 

ENS means Emergency Notification 

System as defined in this section. 

Highway-rail and pathway grade 

crossing means a highway-way rail 

grade crossing and a pathway grade 

crossing. 

Highway-rail or pathway grade 

crossing means either a highway-rail 

grade crossing or a pathway grade 

crossing. 

Maintaining railroad means the owner 

of the track at the highway-rail or the 

pathway grade crossing. If the track 

owner has contracted out the 

responsibility to maintain a warning 

system or track structure at a highwayrail or a pathway grade crossing, the 

contractor is considered the 

‘‘maintaining railroad’’ for the purposes 

of this subpart. 

Pathway grade crossing means a 

pathway that has all of the following 

characteristics: 

(1) That is explicitly authorized by a 

public authority or a railroad; 

(2) That is dedicated for the use of 

nonvehicular traffic, including 

pedestrians, bicyclists, and others; 

(3) That is not associated with a 

public highway, road, or street, or a 

private roadway; and 

(4) That crosses one or more railroad 

tracks at grade. 

§ 234.303 Telephonic notification of unsafe 

conditions at a highway-rail or pathway 

grade crossing. 

(a) Duty of dispatching railroad in 

general. Each dispatching railroad shall 

establish and maintain a toll-free 

telephone service by which the railroad 

can directly receive calls from the 

public reporting any of the conditions 

listed in paragraph (b) of this section 

with respect to a highway-rail grade 

crossing through which the railroad 

dispatches a train and paragraph (c) of 

this section with respect to a pathway 

grade crossing through which the 

railroad dispatches a train. The railroad 

shall not use an automated answering 

service for the purpose of receiving 

reports pursuant to this section. 

(b) Reportable unsafe conditions at 

highway-rail grade crossings. Each 

dispatching railroad shall establish a 

service pursuant to § 234.303(a) to 

receive reports or specific information 

regarding the following conditions with 

respect to a highway-rail grade crossing 

through which it dispatches a train: 

(1) A warning system malfunction at 

the highway-rail grade crossing; 

(2) A disabled vehicle or other 

obstruction blocking a railroad track at 

the highway-rail grade crossing; 

(3) An obstruction to the view of a 

pedestrian or a vehicle operator for a 

reasonable distance in either direction 

of a train’s approach to the highway-rail 

grade crossing; or 

(4) Any information relating to any 

other unsafe condition at the highwayrail grade crossing. 

(c) Reportable unsafe conditions at 

pathway grade crossings. Each 

dispatching railroad shall establish a 

service pursuant to § 234.303(a) to 

receive reports or information regarding 

the following conditions with respect to 

a pathway grade crossing through which 

it dispatches a train: 

(1) A failure of the active warning 

system at the pathway grade crossing to 

perform as intended; 

(2) An obstruction blocking a railroad 

track at the pathway grade crossing; 

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(3) An obstruction to the view of a 

pathway grade crossing user for a 

reasonable distance in either direction 

of a train’s approach to the pathway 

grade crossing; or 

(4) Any information relating to any 

other unsafe condition at the pathway 

grade crossing. 

(d) Class II or III dispatching 

railroads. A Class II or Class III railroad 

that dispatches a train through a 

highway-rail or pathway grade crossing 

within an area in which the use of a 

non-toll-free number would not incur 

any additional fees for the caller 

compared to if a toll-free number was 

used, may use that non-toll-free number 

to receive calls pursuant to § 234.303(a) 

regarding each such crossing in that 

area. 

(e) If a report of an unsafe condition 

at a highway-rail or pathway grade 

crossing was not made through the 

telephone service described in 

paragraph (a) of this section, subpart E 

does not apply to that report. 

§ 234.305 Remedial actions. 

(a) General rule on response to 

credible reports of warning system 

malfunction at highway-rail grade 

crossing. (1) If a railroad receives a 

report pursuant to § 234.303(b)(1) that is 

a credible report of warning system 

malfunction at a highway-rail grade 

crossing and the railroad has 

maintenance responsibility for the 

warning system to which the report 

pertains, the railroad shall take the 

appropriate action required by subpart C 

of this part. 

(2) If a railroad receives a report 

pursuant to § 234.303(b)(1) that is a 

credible report of warning system 

malfunction at a highway-rail grade 

crossing and that railroad does not have 

maintenance responsibility for the 

warning system to which the report 

pertains, the railroad shall immediately 

contact all trains that are authorized to 

operate through the highway-rail grade 

crossing and warn the trains of the 

reported malfunction. The railroad shall 

then immediately contact the railroad 

that has maintenance responsibility for 

the warning system and inform it of the 

reported malfunction. The railroad that 

has maintenance responsibility for the 

warning system at the highway-rail 

grade crossing shall take the appropriate 

action required by subpart C of this part. 

(b) General rule on response to other 

reports of warning system malfunction 

at highway-rail grade crossing. (1) If a 

railroad receives a report of warning 

system malfunction pursuant to 

§ 234.303(b)(1) that is not a credible 

report of warning system malfunction at 

a highway-rail grade crossing and that 

railroad has maintenance responsibility 

for the warning system to which the 

report pertains, the railroad shall 

immediately contact all trains that are 

authorized to operate through the 

highway-rail grade crossing and warn 

the trains of the reported malfunction. 

The railroad shall also promptly contact 

the law enforcement agency having 

jurisdiction over the highway-rail grade 

crossing and provide the necessary 

information for the law enforcement 

agency to direct traffic or carry out other 

activities to maintain safety at the 

highway-rail grade crossing. The 

railroad shall then promptly investigate 

the report and determine the nature of 

the malfunction and shall take the 

appropriate action required by 

§ 234.207(a). 

(2) If a railroad receives a report of 

warning system malfunction pursuant to 

§ 234.303(b)(1) that is not a credible 

report of warning system malfunction 

and that railroad has dispatching 

responsibility for the crossing but does 

not have maintenance responsibility for 

the warning system at the highway-rail 

grade crossing, the railroad shall 

immediately contact all trains that are 

authorized to operate through the 

highway-rail grade crossing to which 

the report pertains and warn the trains 

of the reported malfunction. The 

railroad shall also promptly contact the 

law enforcement agency having 

jurisdiction over the highway-rail grade 

crossing and provide the necessary 

information for the law enforcement 

agency to direct traffic or carry out other 

activities to maintain safety at the 

highway-rail grade crossing. The 

railroad shall then promptly contact the 

railroad that has maintenance 

responsibility for the warning system 

and inform it of the reported 

malfunction. The railroad having 

maintenance responsibility shall 

promptly investigate the report and 

determine the nature of the malfunction 

and shall take the appropriate action 

required by § 234.207(a). 

(c) General rule on response to 

warning system failure at a pathway 

grade crossing. (1) If a railroad receives 

a report of warning system failure at a 

pathway grade crossing pursuant to 

§ 234.303(c)(1) and that railroad has 

maintenance responsibility for the 

warning system to which the report 

pertains, the railroad shall immediately 

contact all trains that are authorized to 

operate through the pathway grade 

crossing and warn the trains of the 

reported failure. The railroad shall also 

promptly contact the law enforcement 

agency having jurisdiction over the 

pathway grade crossing and provide the 

necessary information for the law 

enforcement agency to direct traffic or 

carry out other activities to maintain 

safety at the pathway grade crossing. 

The railroad shall then promptly 

investigate the report and determine the 

nature of the failure and repair the 

active warning system if necessary. 

(2) If a railroad receives a report of 

warning system failure at a pathway 

grade crossing pursuant to 

§ 234.303(c)(1) and that railroad has 

dispatching responsibility for the 

pathway grade crossing but does not 

have maintenance responsibility for the 

warning system to which the report 

pertains, the railroad shall immediately 

contact all trains that are authorized to 

operate through the pathway grade 

crossing to which the report pertains 

and warn the trains of the reported 

failure. The railroad shall also promptly 

contact the law enforcement agency 

having jurisdiction over the pathway 

grade crossing and provide the 

necessary information for the law 

enforcement agency to direct traffic or 

carry out other activities to maintain 

safety at the pathway grade crossing. 

The railroad shall then promptly contact 

the railroad that has maintenance 

responsibility for the warning system 

and inform it of the reported failure. 

The railroad having maintenance 

responsibility shall then promptly 

investigate the report and determine the 

nature of the failure and shall repair the 

warning system if necessary. 

(d) General rule on dispatching 

railroad’s response to reports of a 

disabled vehicle or other obstruction 

blocking a railroad track at a highwayrail or pathway grade crossing. Upon 

receiving a report pursuant to 

§ 234.303(b)(2) or (c)(2), the railroad 

shall immediately contact all trains that 

are authorized to operate through the 

highway-rail or pathway grade crossing 

to which the report pertains and warn 

the trains of the reported disabled 

vehicle or other track obstruction. After 

contacting the necessary trains, the 

railroad shall promptly contact the law 

enforcement agency having jurisdiction 

over the highway-rail or pathway grade 

crossing to provide it with the 

information necessary to assist in the 

removal of the reported track 

obstruction or to carry out other 

activities as appropriate. 

(e) Special rule on contacting a train 

that is not required to have 

communication equipment. If a railroad 

is not required by § 220.9 of this chapter 

to have a working radio or working 

wireless communications in each 

occupied controlling locomotive of its 

trains and the dispatching railroad 

receives a report pursuant to 

§ 234.303(b)(1), (b)(2), (c)(1), or (c)(2) 

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about a crossing that one of the trains 

is authorized to operate through, the 

dispatching railroad shall immediately 

contact the occupied controlling 

locomotive of the train as required by 

§ 234.305(a), (b), (c), or (d) by the 

quickest means available consistent 

with § 220.13(a) of this chapter. 

(f) General rule on response to reports 

of obstruction of view at highway-rail or 

pathway grade crossings. Upon 

receiving a report pursuant to 

§ 234.303(b)(3) or (c)(3), the dispatching 

railroad, if it is also the maintaining 

railroad, shall timely investigate the 

report and shall remove the obstruction 

if it is feasible and lawful to do so. If 

the dispatching railroad is not the 

maintaining railroad, the dispatching 

railroad shall promptly contact the 

maintaining railroad, which shall timely 

investigate the report and which shall 

remove the obstruction, if it is lawful 

and feasible to do so. 

(g) General rule on response to reports 

of other unsafe conditions at highwayrail or pathway grade crossings. (1) 

Upon receiving a report pursuant to 

§ 234.303(b)(4) or (c)(4) related to the 

maintenance of a crossbuck sign or 

other similar grade crossing safety 

device not covered by § 234.305(a), (b), 

or (c), the dispatching railroad, if it also 

has maintenance responsibility for the 

device, shall timely investigate the 

report; and, if it finds that the unsafe 

condition exists, the dispatching 

railroad shall timely correct it if it is 

lawful and feasible to do so. If the 

dispatching railroad does not have 

maintenance responsibility for the 

device, the dispatching railroad shall 

timely inform the railroad with 

maintenance responsibility for the 

device, and the maintaining railroad 

shall timely investigate the report; and, 

if the maintaining railroad finds that the 

unsafe condition exists, the railroad 

shall timely correct it if it is lawful and 

feasible to do so. 

(2) Upon receiving a report pursuant 

§ 234.303(b)(4) or (c)(4), not covered by 

§ 234.305(g)(1), the dispatching railroad, 

if it is also the maintaining railroad, 

shall timely investigate the report; and, 

if it finds that the unsafe condition 

exists, the dispatching railroad shall 

timely correct it if it is lawful and 

feasible to do so. If the dispatching 

railroad is not the maintaining railroad, 

the dispatching railroad shall timely 

inform the maintaining railroad of the 

report, and the maintaining railroad 

shall timely investigate the report; and, 

if the maintaining railroad finds that the 

unsafe condition exists, the railroad 

shall timely correct it if it is lawful and 

feasible to do so. 

(h) General rule on contacting the 

maintaining railroad and use of an 

automated answering service. If the 

dispatching railroad is required under 

this section to contact the maintaining 

railroad, the maintaining railroad 

shall— 

(1) Provide the dispatching railroad 

with sufficient contact information by 

which the dispatching railroad may 

immediately contact the maintaining 

railroad upon receipt of a report; and 

(2) Not use an automated answering 

service for the purpose of receiving a 

call from the dispatching railroad. 

§ 234.307 Third-party telephone service. 

(a) Use of a third-party service. A 

railroad may use a third-party service to 

directly receive reports pursuant to 

§ 234.303. The third-party service shall 

be reached directly by the telephone 

number placed on the sign pursuant to 

§ 234.309. The third-party service shall 

not use an automated answering service 

for the purpose of receiving such 

reports, and the contracting railroad 

shall ensure that the third-party service 

does not use an automated answering 

service for the purpose of receiving such 

reports. 

(b) Duties of railroad using third-party 

service. If a railroad uses a third-party 

service to directly receive reports 

pursuant to § 234.303, the railroad— 

(1) Shall provide the third-party 

service with sufficient contact 

information by which the third-party 

service may immediately contact the 

contracting railroad upon receipt of a 

report; 

(2) Shall not use an automated 

answering service to receive calls from 

the third-party service for the purpose of 

receiving reports pursuant to § 234.303; 

(3) Shall promptly inform FRA of its 

intent to use a third-party service and 

shall provide FRA with contact 

information for the third-party service, 

and information identifying the 

highway-rail and pathway grade 

crossings about which the third-party 

service will receive reports; and 

(4) Upon being contacted by the thirdparty service about a report pursuant to 

§ 234.303, the railroad shall take 

appropriate action as required by 

§ 234.305. 

(c) Duties of third-party service. Upon 

receiving a report pursuant to § 234.303, 

the third-party service shall 

immediately contact the contracting 

railroad, and, at a minimum, provide 

the railroad with the following: 

(1) Information on the nature of the 

reported unsafe condition; 

(2) Information on the location of the 

unsafe condition, including the U.S. 

DOT National Crossing Inventory File 

Number; 

(3) Information on whether the person 

reporting the unsafe condition is a 

railroad employee, law enforcement 

officer, highway traffic official, or other 

employee of a public agency acting in 

an official capacity; and 

(4) Any additional information 

provided by the caller that may be 

useful to restore the crossing to a safe 

condition. 

(d) Third-party service and 

contracting railroad liability. A thirdparty service is responsible for 

complying with this subpart. In 

addition, the contracting railroad is 

vicariously liable for the acts or 

omissions of the third-party service 

under the contract in violation of this 

subpart. 

§ 234.309 ENS signs in general. 

(a) No later than 30 days before the 

implementation of an ENS, the 

dispatching railroad for a highway-rail 

or pathway grade crossing shall provide 

to the maintaining railroad for the 

crossing the telephone number to be 

posted on the ENS sign at the crossing 

if the dispatching railroad and the 

maintaining railroad are not the same. 

(b) Each ENS sign located at each 

highway-rail or pathway grade crossing 

as required by § 234.311 shall have the 

necessary information for the 

dispatching railroad to receive reports of 

unsafe conditions at the crossing. This 

information, at a minimum, includes the 

toll-free number (or non-toll-free 

number as provided for in § 234.303(d)) 

established to receive reports pursuant 

to § 234.303(a), an explanation of the 

purpose of the sign, and the U.S. DOT 

National Crossing Inventory File 

Number assigned to that crossing. 

(c) Each ENS sign shall be at least 12 

inches wide by 9 inches high, have 

lettering measuring, at a minimum, 1 

inch in height, and have a white legend 

and border on a blue background. 

§ 234.311 ENS sign placement and 

maintenance. 

(a) The maintaining railroad for a 

highway-rail or pathway grade crossing 

shall place and maintain a sign that 

conforms to § 234.309 at the crossing for 

each direction of traffic at that crossing. 

A pathway grade crossing is considered 

to have a minimum of two directions of 

traffic unless specifically designed for 

traffic in one direction only. 

(b) Each sign required by paragraph 

(a) of this section shall be located and 

maintained by the maintaining railroad 

so that it— 

(1) Is conspicuous to users of the 

roadway or pathway; 

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(2) Optimizes its visibility at 

nighttime; 

(3) Minimizes the effect of mud 

splatter and debris; and 

(4) Does not obscure any other sign at 

the crossing. 

(c) A sign placed on the signal 

bungalow shall not be deemed to 

comply with § 234.311(b). 

§ 234.313 Recordkeeping. 

(a) Each railroad subject to this 

subpart shall keep records in 

accordance with paragraph (b) of this 

section pertaining to its compliance 

with this subpart. Records may be kept 

either on paper forms provided by the 

railroad or by electronic means in a 

manner that conforms with § 234.315. 

Each railroad responsible for receiving 

reports pursuant to § 234.303(a) and, if 

applicable, each railroad with 

maintenance responsibility shall keep, 

at a minimum, the following 

information for each report received 

under this subpart: 

(1) The nature of the reported unsafe 

condition; 

(2) Location of the highway-rail or 

pathway grade crossing (by highway 

name, if applicable, and U.S. DOT 

National Crossing Inventory File 

Number); 

(3) Time and date of receipt of the 

report by the railroad; 

(4) Whether the person who provided 

the report was a railroad employee, law 

enforcement officer, highway traffic 

official, or other employee of a public 

agency acting in an official capacity; 

(5) Actions taken by the railroad prior 

to rectifying the reported unsafe 

condition at the grade crossing; 

(6) If the reported unsafe condition is 

substantiated, actions taken by the 

railroad to rectify the reported unsafe 

condition, if possible; 

(7) Time and date at which the 

reported unsafe condition was rectified; 

and 

(8) If a railroad is required by this 

subpart to contact a railroad with 

maintenance responsibility, the time 

and date the railroad contacted the 

railroad having maintenance 

responsibility. 

(b) A railroad having maintenance 

responsibility over warning devices at a 

highway-rail grade crossing that 

maintains records pursuant to § 234.109, 

shall be deemed to comply with the 

recordkeeping requirements of this 

subpart with regards to credible reports 

of warning system malfunctions. 

(c) Each railroad shall retain for at 

least one year (from the latest date of 

railroad activity in response to a report 

received under this subpart) all records 

referred to in paragraph (a) of this 

section. Records required to be kept 

shall be made available to the FRA as 

provided by 49 U.S.C. 20107. 

§ 234.315 Electronic recordkeeping. 

(a) If a railroad subject to this subpart 

keeps a record required by this subpart 

electronically in lieu of on paper, the 

system for keeping the electronic record 

must meet all of the following 

conditions: 

(1) The railroad adequately limits and 

controls accessibility to the record 

retained in its electronic database 

system and identifies those individuals 

who have such access; 

(2) The railroad has a terminal at the 

location designated by the railroad as 

the general office for the railroad system 

and at each division headquarters; 

(3) Each such terminal has a computer 

and either a facsimile machine or a 

printer connected to the computer to 

retrieve and produce information in a 

usable format for immediate review by 

FRA representatives; 

(4) The railroad has a designated 

representative who is authorized to 

authenticate retrieved information from 

the electronic system as a true and 

accurate copy of the electronically kept 

record; and 

(5) The railroad provides FRA 

representatives with immediate access 

to the record for inspection and copying 

during normal business hours and 

provides a printout of such record upon 

request. 

(b) If a record required by this part is 

in the form of an electronic record kept 

by an electronic recordkeeping system 

that does not comply with paragraph (a) 

of this section, then the record must be 

kept on paper. 

§ 234.317 Compliance dates. 

(a) If a railroad subject to this subpart 

does not have an ENS of any kind in 

place on the effective date of this 

subpart, the railroad shall implement an 

ENS that conforms to this subpart no 

later than 18 months after the effective 

date of this subpart. 

(b) If a railroad subject to this subpart 

already has its own ENS telephone 

service or is using a third-party ENS 

telephone service on the effective date 

of this subpart, and that telephone 

service does not conform to the 

requirements in § 234.303 or § 234.307, 

respectively, the railroad shall comply 

with § 234.303 or § 234.307, 

respectively, no later than six months 

after the effective date of this subpart. 

(c)(1) If a railroad subject to this 

subpart already has ENS signs in place 

on the effective date of this subpart and 

those signs do not conform to the 

requirements in § 234.309, subject to 

§ 234.317(c)(2), the railroad’s ENS signs 

shall conform to § 234.309 no later than 

five years after the effective date of this 

subpart. If the railroad replaces a nonconforming sign before the expiration of 

the five-year period, the railroad shall 

replace that sign with a sign that 

conforms to § 234.309. 

(2) If a railroad subject to this subpart 

already has ENS signs in place on the 

effective date of this subpart and those 

signs measure less than 60 square 

inches, those ENS signs shall conform to 

§ 234.309 no later than 18 months after 

the effective date of this subpart. If the 

railroad replaces a non-conforming sign 

before the expiration of the 18-month 

period, the railroad shall replace that 

sign with a sign that conforms to 

§ 234.309. 

(d) If a railroad subject to this subpart 

already has ENS signs in place on the 

effective date of this subpart and the 

placement of those signs does not 

conform to the requirements in 

§ 234.311, the placement of the 

railroad’s ENS signs shall conform to 

§ 234.311 no later than five years after 

the effective date of this subpart. If a 

railroad replaces a sign before the fiveyear period so that the sign conforms 

with § 234.309, and the placement of 

that sign does not conform with 

§ 234.311, the railroad shall also change 

the placement of the sign so that it 

conforms to § 234.311. 

(e) If a railroad subject to this subpart 

already conducts recordkeeping as part 

of its ENS on the effective date of this 

subpart and that recordkeeping does not 

conform to § 234.313 or § 234.315, the 

railroad’s recordkeeping shall conform 

to § 234.313 or § 234.315 no later than 

six months after the effective date of this 

subpart. 

Issued in Washington, DC, on February 28, 

2011. 

Joseph C. Szabo, 

Administrator, Federal Railroad 

Administration. 

[FR Doc. 2011–4759 Filed 3–3–11; 8:45 am] 

BILLING CODE 4910–06–P 

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