telephone number.
     Emergency Notification [s]igns shall have a white
legend and border on a blue background.
     The Emergency Notification signs shall be positioned so
as to not obstruct any traffic control devices or limit the view of
rail traffic approaching the grade crossing.

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

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

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

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

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

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

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

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

[GRAPHIC] [TIFF OMITTED] TR12JN12.008

Section 234.311 ENS Sign Placement and Maintenance

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

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

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

Section 234.313 Recordkeeping

    Section 234.313 sets forth the recordkeeping requirements for this
subpart that apply to each railroad subject to this subpart. Paragraph
(a) of this section requires each railroad to keep certain records
pertaining to its compliance with this subpart. Records may be kept on
paper forms generated by the railroad or kept electronically in a
manner that conforms with Sec.  234.315. In this final rule, FRA mainly
adopts paragraph (a) as it was proposed in the NPRM, with the exception
of stylistic changes and one addition. In addition to the recordkeeping
requirements already enumerated in the NPRM, paragraph (a) now also
requires that a railroad retain information regarding the reason why no
remedial action was taken by it. In the NPRM, FRA solicited comments on
what other information the railroad should be required to record. The
CPUC recommended requiring information about why a railroad found a
reported problem infeasible or unlawful to remedy. FRA believes that
the new requirement in paragraph (a) addresses the issue raised by
CPUC. The ILCC also suggested that weather conditions at the crossing
location be recorded when a caller makes a report of an unsafe
condition. While this may be helpful information for some remedial
actions undertaken by the railroad, FRA is not requiring that weather
conditions be recorded. The recordkeeping requirements mandated by this
section are minimum requirements; railroads are permitted to record
additional information if they choose to do so.
    Subpart C at 49 CFR 234.109 (Sec.  234.109) already has specific
recordkeeping requirements for a railroad that receives a credible
report of warning system malfunction; therefore, paragraph (b) of Sec.
234.313 states there is no separate recordkeeping requirement in
subpart E for credible reports of warning system malfunction.
    In the final rule, FRA adds paragraphs (c) to this section to
address the recordkeeping requirements associated with new Sec.
234.306. In Sec.  234.306, where multiple railroads dispatch trains
through the same highway-rail or pathway grade crossing, the railroads
are required to appoint one of their number to receive telephonic
reports. Similarly, in Sec.  234.306, where multiple railroads have
maintenance responsibilities for the same crossing, the railroads are
required to appoint one of their number to install and maintain the ENS
sign(s) at the crossing. Paragraph (c) of Sec.  234.313 requires that
these appointments be recorded in writing and a copy of the document
retained by each railroad for the duration of the appointment.
    Paragraph (e) of this section requires that each railroad retain
for at least one year (from the latest date of railroad activity in
response to a report received under this subpart) all records that it
makes that are required by this section. Records required to be kept
must be made available to FRA as provided by statute (49 U.S.C. 20107).
Some public comments received by FRA indicated that one year is not a
sufficient period of time for the railroads to retain the records
required by this section. However, a one-year period for retention of
records is consistent with other FRA regulations in part 234.
    In the NPRM, FRA solicited comments on whether to require the
railroad to record the caller's name and contact information so that
the railroad could follow up with the caller if necessary. A few
commenters, including the ILCC and the organization Crossing Call,
supported obtaining the caller's name and contact information. However,
the AAR recommended against this proposal, stating that the caller's
identifying information is not necessary for enforcement purposes and
that not all callers would be willing to provide such information. In
light of these comments, FRA has decided not to require a dispatching
railroad to record a caller's name or contact information in this final
rule. Dispatching and maintaining railroads are required to take
remedial actions pursuant to Sec.  234.305, regardless of whether or
not they know the identity of the caller. A railroad's knowledge of a
caller's name and contact information would add little or no benefit to
a railroad's remedial efforts. Moreover, some callers reporting an
unsafe condition may be deterred from making a report if required to
provide their name and contact information.
    The Angels on Track Foundation recommended that railroads be
required to provide State agencies that are responsible for selecting
crossings for upgrades and enforcing regulations at crossings with
documentation of the reports of unsafe conditions received through ENS.
FRA believes this recommendation is outside the scope of this rule;
however, railroads are at liberty to provide such information to State
agencies.
    Finally, Amtrak requested that FRA protect any documentation and
data prepared, compiled, or collected under subpart E from discovery or
admission into evidence or otherwise used for any other purpose in a
Federal or State court proceeding for damages involving personal injury
or wrongful death against a railroad. Specifically, Amtrak references
23 U.S.C. 409, which Congress enacted pursuant to an FHWA proposal to
shield information provided to FHWA by State and local governments to
further highway transportation safety. Congress in Sec. 205 of the RSIA
did not provide a similar protection against the discovery or admission
into evidence of certain information in a Federal or State court
proceeding in any action for damages arising from information or data
obtained as a result of this final rule. Without an express
Congressional mandate, it is outside FRA's authority to provide the
protections sought by Amtrak.

Section 234.315 Electronic Recordkeeping

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

requirements are modeled after the requirements set forth in FRA's
Railroad Operating Rules at 49 CFR 217.9(g) (Sec.  217.9(g)). The final
rule adopts Sec.  234.315 as proposed in the NPRM, with the exception
of typographical and stylistic changes and clarification that the
section applies only to records required by subpart E and not to
records required by part 234 in general. FRA received no public
comments in response to this proposed section.
    If a railroad chooses to conduct electronic recordkeeping of
records required by subpart E, the railroad must provide adequate
security measures to limit employee access to its electronic data
processing system and must prescribe who is allowed to create, modify,
or delete data from the database. Although FRA does not identify the
management position authorized to institute changes in the database,
the railroad must indicate the source authorized to make such changes.
The railroad must have a computer and a facsimile or printer connected
to the computer to retrieve and produce records for immediate review by
FRA representatives. Section 217.9(g) requires the computer to be a
desktop computer. However, FRA recognizes that all railroads may not
necessarily maintain their records on a desktop computer, so rather
than adopting this requirement from Sec.  217.9(g), FRA is allowing
railroads the flexibility to maintain their records on other types of
computers, such as laptops. It should be noted that, regardless of the
type of computer on which the railroad maintains its electronic
records, it must be possible for a facsimile or printer to be connected
to the computer to retrieve and produce records for immediate review by
FRA representatives. The documents must be made available for FRA
inspection during ``normal business hours,'' which FRA interprets as
the time, any day of the week, when railroads conduct their regular
business transactions.
    Nevertheless, FRA reserves the right to review and examine the
documents prepared in accordance with the applicable section of subpart
E, at any reasonable time if situations warrant it. Each railroad must
also designate who is authorized to authenticate the hard copies
produced from the electronic format. In short, each railroad electing
to retain its records electronically must ensure the integrity of the
information and prevent possible tampering with data, enabling FRA to
fully execute its enforcement responsibilities. Furthermore, if an
electronic record kept by the railroad pursuant to this subpart does
not comply with paragraph (a) of Sec.  234.315, then the record must be
kept on paper.

Section 234.317 Compliance Dates

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

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

V. Regulatory Impact

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

    This final rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant under both
Executive Order 12866 and 13563 and DOT policies and procedures. See 44
FR 11034 (February 26, 1979). FRA has prepared and placed in the docket
a regulatory evaluation addressing the economic impact of this final
rule. FRA has met with and made presentations to those who are likely
to be affected by this rule in order to seek their views on the rule.
    As part of the regulatory evaluation, FRA has assessed quantitative
measurements of the cost streams expected to result from the
implementation of this final rule. For the 15-year period analyzed, the
estimated quantified cost that will be imposed on industry totals $15.6
million with a present value (PV, 7 percent) of $10.1 million. The
requirements that are expected to impose the largest burdens relate to
recordkeeping and the purchase and installation of signs at grade
crossings. The table below presents the estimated costs associated with
this final rule.

                15-Year Estimated Costs of the Final Rule
------------------------------------------------------------------------

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

    As part of the regulatory evaluation, FRA has explained what the
likely benefits for this final rule will be, and provided numerical
assessments of the potential value of such benefits. This final rule is
expected to improve railroad safety by ensuring that all highway-rail
and pathway grade crossings have adequate signage to enable the public
to inform the railroad of emergencies and other unsafe conditions. The
primary benefits include a heightened safety environment in grade
crossing areas and potential avoidance of casualties, fatalities, and
damage through earlier awareness of track obstructions, including
stalled highway vehicles, and other safety hazards. Thus, in general,
the final rule should decrease grade crossing accidents and incidents
and associated casualties and damages. Other than the reduction of
accidents, fatalities, injuries, and associated damages, FRA is aware
of several other benefits that will occur when accidents are prevented.
Savings have been estimated for avoiding train delay, highway delay,
emergency personnel responding, vehicle towing, and accident clean-up
associated with grade crossing accidents.
    Based on its analysis, FRA has found that the expected accident
reduction benefits will exceed the total cost of this final rule. Over
a 15-year period, this analysis finds that $57.8 million in cost
savings will accrue through casualty prevention, damage avoidance, and
other benefits. The discounted value of this is $31.7 million (PV, 7
percent). The table below presents the estimated benefits associated
with this final rule.

              15-Year Estimated Benefits of the Final Rule
------------------------------------------------------------------------

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

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly
considered, FRA has developed this final rule in accordance with
Executive Order 13272 (``Proper Consideration of Small Entities in
Agency Rulemaking'') and DOT's procedures and policies to promote
compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant economic
impact on a substantial number of small entities.
    As discussed earlier, FRA has initiated this rulemaking as a
requirement of the RSIA. This final rule requires each railroad to
establish and maintain a toll-free telephone service to directly
receive calls from the public reporting an emergency or other unsafe
condition at its grade crossings, and to remedy those unsafe
conditions, as appropriate. As part of these duties, a railroad is
required to install and maintain signs at its grade crossings that
display its emergency telephone number.
    (1) Description of Regulated Entities and Impacts. The ``universe''
of the entities under consideration includes only those small entities
that can reasonably be expected to be directly affected by the
provisions of this rule. For the rule there is only one type of small
entity that is affected: small railroads.

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

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

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

with the expertise and resources comparable to larger railroads. The
requirement to install two new signs per crossing and provide a toll-
free telephone number in case of emergencies will not have a
significant economic impact on these railroads. Short line railroads
affected by this final rule might collaborate with other small
railroads to implement its requirements, which would lower the burden
on these small railroads.
    FRA received several comments related to the impact on small
entities and tourist railroads, regarding the regulatory flexibility
analysis, and compliance with Executive Order 13272. FRA considered
these comments and, accordingly, in this final rule, FRA examined the
impact on small businesses, made cost-reducing changes, and re-
evaluated the costs and benefits.
    Several comments on the NPRM requested that FRA adjust the
monitoring and signage requirements to give consideration to small
entities. The changes to the final rule made since the NPRM will reduce
the burden on small railroads. FRA revised the monitoring requirements
for railroads that dispatch trains authorized to operate at speeds less
than or equal to 20 mph through crossings. Also, those railroads that
operate at seasonally or intermittently and at speeds greater than 20
mph through crossings are not required to have live monitoring during
hours of non-operation. Farm grade crossings are now only required to
have one sign per crossing; this reduces the number of signs for Class
III railroads by 13,510. These changes have moderately decreased the
annual and total costs for small entities. Based on changes made in the
regulatory requirements since the NPRM, FRA is even more confident that
the impact on small entities will not be significant.
    Previously, FRA sampled small railroads and found that revenue
averaged approximately $4.7 million (not discounted) in 2006. One
percent of average annual revenue per small railroad, or $47,000, is
far more than the average annual cost that these railroads will incur
because of this final rule. Very small and extremely small railroads
likely do have smaller revenues than larger Class III railroads.
However, FRA believes that this average provides a good representation
of the small railroads, in general. If a railroad has annual average
revenue greater than $134,122, the annual cost per railroad will be
less than 1 percent of revenue.
    FRA concludes that the final rule will not have a noticeable
economic impact on the competitive position of small entities, or on
the small entity segment of the railroad industry as a whole.
    (2) Certification. Pursuant to the Regulatory Flexibility Act (5
U.S.C. 605(b)), FRA certifies that this final rule will not have a
significant economic impact on a substantial number of small entities.
Although a substantial number of small railroads will be affected by
the final rule, none of these entities will be significantly impacted.

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, the agency consults with State and local governments, or
the agency consults with State and local government officials early in
the process of developing the regulation. Where a regulation has
federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132. The rule will not have
a substantial effect on the States or their political subdivisions; it
will not impose any compliance costs; and it will not affect the
relationships between the Federal government and the States or their
political subdivisions, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.
    This final rule amends part 234, which contains FRA's principal
regulations regarding grade crossing safety. Although the final rule on
State-specific highway-rail grade crossing action plans published June
28, 2010 (75 FR 36552) removed the preemptive effect provision in part
234, part 234 still could have preemptive effect by operation of law
under a provision of the former Federal Railroad Safety Act of 1970
(former FRSA), which was repealed and recodified at 49 U.S.C. 20106
(Section 20106). Section 20106 provides that States may not adopt or
continue in effect any law, regulation, or order related to railroad
safety or security that covers the subject matter of a regulation
prescribed or order issued by the Secretary of Transportation (with
respect to railroad safety matters) or the Secretary of Homeland
Security (with respect to railroad security matters), except when the
State law, regulation, or order qualifies under the ``essentially local
safety or security hazard'' exception to Section 20106.
    FRA believes that Section 20106 sufficiently addresses the
preemptive effect of FRA's regulations. Providing a separate Federal
regulatory provision in this final rule, as suggested by some public
comments on the proposed rule, concerning the regulation's preemptive
effect is duplicative and unnecessary.
    In sum, FRA has analyzed this final rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this final rule has no
federalism implications, other than the possible preemption of State
laws under Federal railroad safety statutes, specifically 49 U.S.C.
20106. Accordingly, FRA has determined that preparation of a federalism
summary impact statement for this final rule is not required.

D. International Trade Impact Assessment

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

E. Paperwork Reduction Act

    The information collection requirements in this final rule are
being submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections of

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

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

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

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-
493-6292 or Ms. Kimberly Toone at<PHONE_NUMBER> or via email at the
following addresses<EMAIL_ADDRESS><EMAIL_ADDRESS>    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, Office of Information and Regulatory Affairs,
Washington, D. C. 20503, Attention: FRA Desk Officer. Comments may also
be sent via email to OMB at the following address<EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication.
    FRA is not permitted to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of this final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

F. Environmental Assessment

    FRA has evaluated this final rule in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this final rule is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
(See 64 FR 28547, May 26, 1999.) Section 4(c)(20) reads as follows:
``Actions categorically excluded. Certain classes of FRA actions have
been determined to be categorically excluded from the requirements of
these Procedures as they do not individually or cumulatively have a
significant effect on the human environment. * * * The following
classes of FRA actions are categorically excluded: * * * Promulgation
of railroad safety rules and policy statements that do not result in
significantly increased emissions or air or water pollutants or noise
or increased traffic congestion in any mode of transportation.''
    In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this final
rule is not a major Federal action significantly affecting the quality
of the human environment.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more (adjusted
annually for inflation) [$140,800,000 or more in 2010] in any one year,
and before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector. This final rule will not result in
the expenditure, in the aggregate, of more than $140,800,000 or more in
any one year, and thus preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates, or is expected to
lead to the promulgation of, a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) is designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
FRA has evaluated this final rule in accordance with Executive Order
13211. FRA has determined that this final rule will not have a
significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this regulatory action is
not a ``significant energy action'' within the meaning of Executive
Order 13211.

I. Privacy Act Statement

    Interested parties should be aware that anyone is able to search
the electronic form of all comments received into any agency docket by
the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78), or you may visit http://www.regulations.gov.

List of Subjects in 49 CFR Part 234

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

The Final Rule

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

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

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

    Authority:  49 U.S.C. 20103, 20107, 20152, 21301, 21304, 21311,
22501 note; Pub. L. 110-432, Div. A, Secs. 202, 205; 28 U.S.C. 2461,
note; and 49 CFR 1.49.

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

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3. Section 234.1 is revised to read as follows:

Sec.  234.1  Scope.

    (a) This part prescribes minimum--
    (1) Maintenance, inspection, and testing standards for highway-rail
grade crossing warning systems;
    (2) Standards for the reporting of failures of highway-rail grade
crossing warning systems and for the actions that railroads must take
when such systems malfunction;
    (3) Requirements for particular identified States to develop State
highway-rail grade crossing action plans; and
    (4) Requirements that certain railroads establish systems for
receiving toll-free telephone calls reporting various unsafe conditions
at highway-rail grade crossings and pathway grade crossings, and for
taking certain actions in response to those calls.
    (b) This part does not restrict a railroad from adopting and
enforcing additional or more stringent requirements not inconsistent
with this part.

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4. Section 234.3 is revised to read as follows:

Sec.  234.3  Application and responsibility for compliance.

    (a) With the exception of Sec.  234.11, this part applies to all
railroads except the following:
    (1) Operations of a plant railroad as defined in Sec.  234.5;
    (2) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation; or
    (3) Tourist, scenic, historic, or excursion operations conducted
only on track used exclusively for that purpose (i.e., there is no
freight, intercity passenger, or commuter passenger railroad operation
on the track) and only

on track inside an installation that is insular; i.e., the operations
are limited to a separate enclave in such a way that there is no
reasonable expectation that the safety of the public--except a business
guest, a licensee of the railroad or an affiliated entity, or a
trespasser--would be affected by the operation. An operation will not
be considered insular if one or more of the following exists on its
line:
    (i) A public highway-rail crossing that is in use;
    (ii) An at-grade rail crossing that is in use;
    (iii) A bridge over a public road or waters used for commercial
navigation; or
    (iv) A common corridor with a railroad, i.e., its operations are
within 30 feet of those of any railroad.
    (b) Although the duties imposed by this part are generally stated
in terms of the duty of a railroad, each person, including a contractor
or subcontractor for a railroad, who performs any task covered by this
part, shall perform that task in accordance with this part.

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

Sec.  234.5  Definitions.

* * * * *
    Credible report of warning system malfunction or credible report of
warning system malfunction at a highway-rail grade crossing means a
report that contains specific information regarding a malfunction of a
highway-rail grade crossing warning system at an identified highway-
rail grade crossing, supplied by a railroad employee, law enforcement
officer, highway traffic official, or other employee of a public agency
acting in an official capacity.
* * * * *
    FRA means the Office of Railroad Safety, Federal Railroad
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
* * * * *
    Plant railroad means a plant or installation that owns or leases a
locomotive, uses that locomotive to switch cars throughout the plant or
installation, and is moving goods solely for use in the facility's own
industrial processes. The plant or installation could include track
immediately adjacent to the plant or installation if the plant railroad
leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for
other entities, even if solely within the confines of the plant or
installation, rather than for its own purposes or industrial processes,
will not be considered a plant railroad because the performance of such
activity makes the operation part of the general railroad system of
transportation.
* * * * *
    Warning system malfunction or warning system malfunction at a
highway-rail grade crossing means an activation failure, a partial
activation, or a false activation of a highway-rail grade crossing
warning system.

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

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

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

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

Sec.  234.301  Definitions.

    As used in this subpart--
    Answering machine means either a device or a voicemail system that
allows a telephone caller to leave a recorded message to report an
unsafe condition at a highway-rail or pathway grade crossing, as
described in Sec.  234.303(c) and (d), and the railroad is able to
retrieve the recorded message either remotely or on-site.
    Automated answering system means a type of answering system that
directs a telephone caller to a single menu of options, where the
caller has the choice to select one of the available options to report
an unsafe condition at a highway-rail or pathway grade crossing, as
described in Sec.  234.303(c) and (d), and immediately after selecting
one of the available menu options, the caller is transferred to a live
telephone operator.
    Class II and Class III have the meaning assigned by regulations of
the Surface Transportation Board (49 CFR part 1201; General
Instructions 1-1), as those regulations may be revised and applied by
order of the Board (including modifications in class threshold based on
revenue deflator adjustments).
    Dispatches a train or dispatches trains means dispatches or
otherwise provides the authority for the movement of the train or
trains through a highway-rail or pathway grade crossing.
    Dispatching railroad means a railroad that dispatches or otherwise
provides the authority for the movement of one or more trains through a
highway-rail or pathway grade crossing.
    Emergency Notification System means a system in place by which a
railroad receives, processes, and responds to telephonic reports of an
unsafe condition at a highway-rail or pathway grade crossing. An
Emergency Notification System includes the following components:
    (1) The signs, placed and maintained at the grade crossings that
display the information necessary for the public to report an unsafe
condition at the grade crossing to the dispatching railroad by
telephone;
    (2) The method that the railroad uses to receive and process a
telephone call reporting the unsafe condition;
    (3) The remedial actions that a railroad takes to address the
report of the unsafe condition; and
    (4) The recordkeeping conducted by a railroad in response to the
report of the unsafe condition at the grade crossing.

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

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

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

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

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

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

the law enforcement agency having jurisdiction over the crossing to
provide it with the information necessary to assist in the removal of
the reported track obstruction or to carry out other activities to
maintain safety at the crossing. The railroad shall then promptly
contact the maintaining railroad and inform it of the reported
obstruction. The maintaining railroad shall then promptly investigate
the report, determine the nature of the obstruction, and without undue
delay take the necessary action to have the obstruction removed.
    (e) Special rule on contacting a train that is not required to have
communication equipment. If a railroad is not required by Sec.  220.9
of this chapter to have a working radio or working wireless
communications in each occupied controlling locomotive of its trains
and the railroad receives a report pursuant to Sec.  234.303(c)(1),
(c)(2), (d)(1), or (d)(2) about a highway-rail or pathway crossing that
any of the trains is authorized to operate through, the railroad shall
promptly contact the occupied controlling locomotive of the train as
required by paragraph (a), (b), (c), or (d) of this Sec.  234.305 by
the quickest means available consistent with Sec.  220.13(a) of this
chapter.
    (f) General rule on response to report of an obstruction of view at
a highway-rail or pathway grade crossing. (1) Upon receiving a report
pursuant to Sec.  234.303(c)(3) or (d)(3), the railroad, if it is both
the dispatching and the maintaining railroad, shall timely investigate
the report and remove the obstruction if it is lawful and feasible to
do so.
    (2) If the dispatching railroad is not also the maintaining
railroad, it shall promptly contact the maintaining railroad, which
shall timely investigate the report and remove the obstruction if it is
lawful and feasible to do so.
    (g) General rule on response to report of other unsafe condition at
a highway-rail or pathway grade crossing. Upon receiving a report
pursuant to Sec.  234.303(c)(4) or (d)(4) related to the maintenance of
a crossbuck sign or other similar grade crossing safety device or any
other unsafe condition (such as a pot hole that could cause injury or
damage) not covered by paragraph (a), (b), or (c) of this Sec.
234.305, the railroad, if it is both the dispatching and the
maintaining railroad, shall timely investigate the report; and, if the
railroad finds that the unsafe condition exists, it shall timely
correct it if it is lawful and feasible to do so. If the dispatching
railroad is not also the maintaining railroad, it shall timely inform
the maintaining railroad, which shall timely investigate the report;
and, if the maintaining railroad finds that the unsafe condition
exists, it shall timely correct it if it is lawful and feasible to do
so.
    (h) General rule on a maintaining railroad's responsibilities for
receiving reports of unsafe conditions at highway-rail and pathway
grade crossings. (1) In general. If the dispatching railroad is
required under this section to contact the maintaining railroad, the
maintaining railroad shall--
    (i) Provide the dispatching railroad with sufficient contact
information by which the dispatching railroad may timely contact the
maintaining railroad upon receipt of a report; and
    (ii) Have either a live person answer calls directly and promptly,
or use an automated answering system for the purpose of receiving a
call from the dispatching railroad of a report of an unsafe condition,
except as provided in paragraph (h)(2) of this section.
    (2) Exceptions for use of a third-party telephone service and
answering machine by a maintaining railroad. (i) If a maintaining
railroad is responsible for the maintenance of a highway-rail or
pathway grade crossing through which a railroad dispatches one or more
trains, each of which is authorized to travel through the crossing at
speeds not greater than 20 mph, the maintaining railroad may use a
third-party telephone service, in accordance with Sec.  234.307, or an
answering machine to receive reports from a dispatching railroad of
unsafe conditions at such a crossing. If using an answering machine
pursuant to this paragraph, the railroad must retrieve its messages
immediately prior to the start of its operations for the day.
    (ii) If a maintaining railroad is responsible for the maintenance
of a highway-rail or pathway grade crossing only on a seasonal or
intermittent basis (e.g., tourist, biweekly service, or non-24-hour
service), the maintaining railroad may use a third-party telephone
service, in accordance with Sec.  234.307, or an answering machine to
receive reports from a dispatching railroad of unsafe conditions at
such a crossing. If using an answering machine pursuant to this
paragraph, during periods of non-operation, the maintaining railroad
must retrieve its messages daily. However, the railroad must retrieve
its messages immediately prior to the start of its operations for the
day, and during hours of operation the railroad shall either have a
live person answer calls directly or use an automated answering system
to receive reports regarding unsafe conditions at such a crossing.

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

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

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

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

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

Sec.  234.309  ENS signs in general.

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

Sec.  234.311  ENS sign placement and maintenance.

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

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

Sec.  234.313  Recordkeeping.

    (a) In general. Each railroad subject to this subpart shall keep
records in accordance with this section. Records may be kept either on
paper forms provided by the railroad or by electronic means in a manner
that conforms with Sec.  234.315. Each dispatching railroad responsible
for receiving reports pursuant to Sec.  234.303(a), each third-party
telephone service responsible for receiving reports pursuant to Sec.
234.307, and, if applicable, each maintaining railroad shall keep, at a
minimum, the following information for each report received under this
subpart:
    (1) The nature of the reported unsafe condition;
    (2) The location of the highway-rail or pathway grade crossing, by
highway name, if applicable, and the U.S. DOT National Crossing
Inventory number.
    (3) The time and date of receipt of the report by the railroad;
    (4) If applicable, whether the person who provided the report was a
railroad employee, law enforcement officer, highway traffic official,
or other employee of a public agency acting in an official capacity;
    (5) Actions taken by the railroad prior to resolving the reported
unsafe condition at the grade crossing (e.g., warning train crews,
notifying the maintaining railroad, or contacting law enforcement or
other public authorities);
    (6) If the reported unsafe condition is substantiated, actions
taken by the railroad to remedy the reported unsafe condition, if
lawful and feasible;
    (7) The time and date when the reported unsafe condition was
remedied;
    (8) If no remedial action was taken, the reason why; and
    (9) If a dispatching railroad, in accordance with Sec.  234.305, is
required to contact a maintaining railroad, the time and date when it
contacted the maintaining railroad.
    (b) Records of credible reports of warning system malfunction. A
railroad that has maintenance responsibility over warning devices at a
highway-rail grade crossing and maintains records pursuant to Sec.
234.109, shall be deemed to comply with the recordkeeping requirements
of this subpart with regard to credible reports of warning system
malfunctions.
    (c) Records involving multiple dispatching or maintaining
railroads. (1) Where multiple railroads dispatch trains through the
same highway-rail or pathway grade crossing and appoint one railroad to
receive telephonic reports regarding unsafe conditions at such
crossings pursuant to Sec.  234.306, the appointment must be recorded
in writing and a copy of the document retained by each railroad for the
duration of the appointment or for one year, whichever period is
longer.
    (2) Where multiple railroads have maintenance responsibility for
the same highway-rail or pathway grade crossing and they appoint one
railroad to be responsible for installing and maintaining the ENS
sign(s) at the crossing pursuant to Sec.  234.306, the appointment must
be recorded in writing and a copy of the document retained by each
railroad for the duration of the appointment or for one year, whichever
period is longer.
    (d) Record retention period; records availability. Each railroad
shall retain for at least one year (from the latest date of railroad
activity in response to a report received under this subpart) all
records referred to in paragraphs (a) and (b) of this section. Records
required to be kept under this subpart shall be made available to FRA
as provided by 49 U.S.C. 20107.

Sec.  234.315  Electronic recordkeeping.

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

Sec.  234.317  Compliance dates.

    (a) Railroads without an ENS of any kind. If a railroad subject to
this subpart does not have an ENS of any kind in place on August 13,
2012, the railroad shall implement an ENS that conforms to this subpart
no later than September 1, 2015.
    (b) Railroads with nonconforming ENS telephone service. If a
railroad subject to this subpart already has its own ENS telephone
service or is using a third-party ENS telephone service, and that
telephone service does not conform to the requirements in Sec.  234.303
or Sec.  234.307, respectively, on August 13, 2012, the railroad shall
comply with Sec.  234.303 or Sec.  234.307, respectively, no later than
March 1, 2014.
    (c) Railroads with ENS signs of nonconforming size. (1) If a
railroad subject to this subpart already has ENS signs in place, and
those signs do not conform to the requirements in

Sec.  234.309 on August 13, 2012, the railroad's ENS signs shall
conform to Sec.  234.309 no later than as required below:
    (i) If the railroad's sign size is greater than or equal to 60
square inches and the height of the lettering on the sign is greater
than or equal to \3/4\ inch for the information required in Sec.
234.309(b) on August 13, 2012, the railroad may maintain the sign for
its useful life.
    (ii) If the railroad's sign size is greater than or equal to 60
square inches but the height of the lettering is less than \3/4\ inch
for the information required in Sec.  234.309(b) on August 13, 2012,
the railroad's sign must conform to Sec.  234.309 no later than
September 1, 2017.
    (iii) If the railroad's sign size is less than 60 square inches,
regardless of the height of the lettering for the information required
in Sec.  234.309(b), on August 13, 2012, the railroad's sign must
conform to Sec.  234.309 no later than September 1, 2015.
    (2) If the railroad chooses to replace an ENS sign of non-
conforming size before the applicable compliance date stated, the
railroad shall replace that sign with a sign that conforms to Sec.
234.309.
    (d) Railroads with ENS signs having nonconforming placement. If a
railroad subject to this subpart already has ENS signs in place, and
the placement of those signs does not conform to the requirements in
Sec.  234.311 on August 13, 2012, the placement of the railroad's ENS
signs shall conform to Sec.  234.311 no later than September 1, 2017.
If a railroad changes the placement of the sign before September 1,
2017, the placement of the sign must conform to Sec.  234.311. If a
railroad replaces a sign before September 1, 2017, so that the sign
conforms to Sec.  234.309, and the placement of that sign does not
conform to Sec.  234.311, the railroad shall also change the placement
of the sign so that it conforms to Sec.  234.311.
    (e) Railroads with nonconforming ENS recordkeeping. If a railroad
subject to this subpart already conducts recordkeeping as part of its
ENS, and that recordkeeping does not conform to Sec.  234.313 or Sec.
234.315, the railroad's recordkeeping shall conform to Sec.  234.313 or
Sec.  234.315 no later than September 1, 2013.

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