[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Rules and Regulations]
[Pages 35164-35197]
[FR Doc No: 2012-13843]

Vol. 77

Tuesday,

No. 113

June 12, 2012

Part III

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 234

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

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

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 234

[Docket No. FRA-2009-0041, Notice No. 2]
RIN 2130-AC12

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

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

ACTION: Final rule.

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

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

ADDRESSES: Petitions for reconsideration or comments on such petitions:
Any petitions and any comments to petitions related to Docket No. FRA-
2009-0041, Notice No. 2, may be submitted by any of the following
methods:
     Web Site: Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC
20590.
     Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue SE., W12-140, Washington, DC
between 9 a.m. and 5 p.m. Monday through Friday, except Federal
holidays.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov including any personal
information. Please see the Privacy Act heading in the SUPPLEMENTARY
INFORMATION section of this document for Privacy Act information
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
Room W12-140 on the Ground level of the West Building, 1200 New Jersey
Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Beth Crawford, Transportation
Specialist, Grade Crossing Safety and Trespass Prevention, Office of
Safety Analysis, FRA, 1200 New Jersey Avenue SE., Mail Stop 25,
Washington, DC 20590 (telephone:<PHONE_NUMBER><EMAIL_ADDRESS>
or Sara Mahmoud-Davis, Trial Attorney, Office of Chief Counsel, FRA,
1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590
(telephone:<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

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

I. Executive Summary

A. In General

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

B. Overview of Rule Requirements

1. Telephonic Reporting of Unsafe Conditions at Crossings
    This rule requires each railroad that dispatches a train, or
otherwise provides the authority for the movement of a train, through a
highway-rail or pathway grade crossing, to set up and maintain an ENS
by which the railroad is able to directly receive telephonic reports
from the public of certain unsafe conditions at the crossing and then
take specified action to respond to those reports. There are four
categories of reportable unsafe conditions for each highway-rail and
pathway grade crossing. Generally, these categories are (1)
Malfunctions of signals, crossing gates, and other devices to promote
safety at the grade crossing; (2) disabled vehicles and other
obstructions blocking railroad tracks at the crossing; (3) obstructions
to the view of a pedestrian or a vehicle operator for a reasonable
distance in either direction of a train's approach to the crossing; and
(4) any other unsafe condition at the crossing, such as a downed
crossbuck sign or a pot hole in the crossing.
    The railroad that dispatches a train through a crossing is called
the

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

C. Expected Costs and Benefits of the Rule

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

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

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

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

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

II. Statutory Background

    This final rule is intended specifically to implement Sec. 205 of
the RSIA, Public Law 110-432, Division A, which was enacted October 16,
2008, and generally to increase safety at highway-rail and pathway
grade crossings. See 49 U.S.C. 20152, Notification of grade crossing
problems, and definitions in revised 49 CFR 234.5 and new 49 CFR
234.301. Sec. 205 of the RSIA mandates that the Secretary of
Transportation (Secretary) require certain railroad carriers
(railroads) to take a series of specified actions related to setting up
and using systems by which the public is able to notify the railroad by
toll-free telephone number of safety problems at its highway-rail and
pathway grade crossings. Such systems are commonly known as Emergency
Notification Systems (ENS) or ENS programs. This rule is also being
issued under the authority of a separate statutory provision, 49 U.S.C.
20103, which gives the Secretary very broad authority to prescribe rail
safety regulations and issue rail safety orders pursuant to notice-and-
comment procedures. The Secretary has delegated the responsibility to
carry out both Sec. 205 of the RSIA and 49 U.S.C. 20103 to the
Administrator of FRA. 49 CFR 1.49(m), (oo). Essentially, Sec. 205 of
the RSIA imposes a mandate requiring FRA as the Secretary's delegate to
prescribe regulations or orders imposing the requirements specified in
that section; this final rule implements that statutory mandate.
    In particular, under Sec. 205 of the RSIA, FRA is to require each
railroad to ``establish and maintain a toll-free telephone service for
rights-of-way over which it dispatches trains'' through ``the grade
crossing of railroad tracks on those rights-of-way and public or
private roads,'' ``to directly receive calls reporting'' any of three
types of unsafe conditions at the grade crossing or other safety-
related information involving such a grade crossing. Under that
section, the three types of reportable unsafe conditions are as
follows: (1) Malfunctions of warning signals, crossing gates, and other
devices intended to promote safety at the highway-rail grade crossing;
(2) disabled vehicles blocking railroad tracks at such grade crossings;
and (3) obstructions to the view of a pedestrian or a vehicle operator
for a reasonable distance in either direction of a train's approach to
such a grade crossing. To the extent that the requirements of the final
rule exceed the requirements specified by the RSIA, FRA relies
primarily upon its general safety rulemaking authority under 49 U.S.C.
20103.
    In addition to specifying the requirement that the Secretary must
impose on dispatching railroads to establish and maintain telephonic
notification systems, the RSIA includes a series of additional
specifications to be reflected in FRA's regulation. When a railroad
receives through the ENS a report of a malfunction of a warning signal,
crossing gate, and/or other device intended to promote safety at a
grade crossing or a report of a disabled vehicle blocking a railroad
track at a grade crossing through which the railroad dispatches a
train, the dispatching railroad must promptly contact trains operating
near the grade crossing to warn them of the malfunctioning device or
disabled vehicle. After contacting the trains, the dispatching railroad
must contact appropriate public safety officials having jurisdiction
over the grade crossing to provide them with the information necessary
for them to direct traffic, assist in the removal of the disabled
vehicle, or carry out other activities. When a railroad receives a
report through the ENS of either an obstruction to the view of a
pedestrian or a vehicle operator for a reasonable distance in either
direction of a train's approach to a grade crossing through which it
dispatches a train or a report of another unsafe condition involving
such a grade crossing, the railroad must timely investigate the report,
remove the obstruction if lawful and feasible to do so, or correct the
unsafe condition if lawful and feasible to do so, or, if that railroad
does not have maintenance responsibility for the crossing, ask the
maintaining railroad to do so as required by the rule.
    Further, under the RSIA, FRA must require that the owner of the
track at a grade crossing ``ensure the placement * * * of appropriately
located signs'' bearing, at a minimum, ``a toll-free telephone number
to be used for placing calls'' to report unsafe conditions at the
crossing to the railroad that dispatches trains on that right-of-way
through the crossing, ``an explanation of the purpose of that toll-free
telephone number,'' and the ``grade crossing number assigned for that
crossing by the'' U.S. DOT National Crossing Inventory (Crossing
Inventory).

III. History of Accidents Relevant to This Rulemaking

    There are approximately 211,000 public and private at-grade
highway-rail and pathway crossings (highway-rail and pathway grade
crossings) in the United States. In other words, the country has
approximately 211,000 locations where a collision can occur between a
train and a car, truck, or other motor vehicle, or a pedestrian at any
one time. Grade crossing collisions are among the most challenging
areas in FRA's efforts to reduce deaths and injuries along the Nation's
railroads. In fact, since 1997, grade crossing collisions have caused
more railroad-related fatalities per year than any other single factor
except for trespassing on railroad property. During the 11-year period
from 1999-2009, 2,306 collisions occurred at highway-rail and pathway
grade crossings where a vehicle was stalled or sight obstructions were
reported to FRA. See accident reporting regulations at 49 CFR part 225
and 49 CFR 234.7.
    A train striking a pedestrian can result in serious injury or
death. Further, a collision between a train and a vehicle of any size
can be catastrophic. Serious injuries or deaths are far more likely to
occur with a collision between a train and a vehicle than with a
collision between two vehicles. While significant improvements in grade
crossing safety have been achieved over the last two decades, grade
crossing collisions still pose a significant public safety threat, and
one that can spiral beyond the immediate impact of the vehicle and
train. The derailment of a freight train as a result of a collision at
the grade

crossing can have a disastrous effect on the train crew or even on an
entire community, especially if the derailment results in a release of
hazardous material that necessitates the evacuation of a neighborhood
or the community. Moreover, if a passenger train derails as a result of
a collision, the risk of injuries extends beyond the vehicle occupants
and train crew to the passengers of the train. An example of such an
accident occurred in 1999 in Bourbonnais, Illinois, when a National
Railroad Passenger Corporation (Amtrak) passenger train struck a truck
loaded with steel at a highway-rail grade crossing. Almost the entire
train derailed, resulting in 11 deaths and 131 injuries to the
passengers and crew of the train.
    Other vehicles and pedestrians in the vicinity of a highway-rail or
pathway grade crossing collision can also be at grave risk. This was
the scenario in 1993 when an Amtrak passenger train collided with a
gasoline tanker truck at a highway-rail grade crossing in Ft.
Lauderdale, Florida. The truck driver was attempting to cross through a
grade crossing where traffic was congested. The tanker truck was
punctured when it was struck by the Amtrak train; a fire erupted and
engulfed the truck and nine other vehicles near the crossing. The fire
killed the driver of the truck and five occupants of three stopped
vehicles near the grade crossing.
    There are ancillary benefits associated with an ENS beyond its
primary purpose of facilitating the telephonic reporting of unsafe
conditions at highway-rail or pathway grade crossings and remedying
those unsafe conditions. Railroads with an ENS also have received calls
from the public reporting unsafe conditions in the general vicinity of
the crossing, but not immediately at the crossing. Although not within
the scope of this rule, responsive action by the railroads to such
reports of other types of unsafe conditions often accrue significant
benefits to the railroad and surrounding community.
    The National Transportation Safety Board (NTSB) issued a report in
March 2012 of a derailment on the Canadian National Railway Company
(CN) that illustrates the potential benefit of having an ENS. The
accident occurred in Cherry Valley, Illinois in 2009. The derailment,
which resulted in a fatality, several injuries, and the evacuation of
600 residents, was caused by a washout of track near a highway-rail
grade crossing, but not at the crossing. Before the derailment
occurred, several individuals observed high water conditions affecting
the track. One individual was familiar with the practice of railroads
posting emergency telephone numbers at grade crossings and attempted to
locate such a sign. There was no sign posted at the crossing. Several
calls were placed to the local 911\1\ system to report the washout and
warn of the potential of a train derailment. The first call was
received by the 911 center 56 minutes before a train approached, but
local police only first learned of the situation approximately 20
minutes after that first call was made to 911. Additionally, several
critical minutes were lost as the local police attempted to identify
the railroad that owned the track. The NTSB concluded that ``[h]ad the
emergency contact information been available, the citizen [i.e., the
individual who was unable to locate the railroad contact information at
the Mulford Road crossing] would likely have called the CN instead of
911, or both. Even though the 911 center was able to identify the
crossing, it was not until 41 minutes after the initial 911 call that
the CN Police Emergency Call Center in Montreal was notified of the
track washout.''
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    \1\ The current 911 system in the United States was designed to
provide a universal, easy-to-remember number, 9-1-1, for people to
reach police, fire or emergency medical assistance from any phone in
any location, without having to look up specific phone numbers.
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    By the time the information was relayed to the proper railroad
officials, the train derailed, and several of the cars, carrying
flammable liquids, erupted in flames. As a result, several motor
vehicles that had been stopped at the crossing waiting for the train to
pass were impacted by the incident. One motor vehicle passenger was
fatally injured; two other passengers in the vehicle were seriously
injured along with five occupants of another car. The incident also
resulted in the evacuation of 600 nearby residents. The NTSB concluded
``that had the required CN grade crossing identification and emergency
contact information been posted at the Mulford Road crossing, the
railroad would likely have been notified of the track washout earlier,
and the additional time may have been sufficient for the [rail traffic
controllers] to issue instructions to stop the train and prevent the
accident.'' Derailment of CN Freight Train U70691-18 With Subsequent
Hazardous Materials Release and Fire, Cherry Valley, Illinois, June 19,
2009, Railroad Accident Report NTSB/RAR-12/01 (Washington, DC: National
Transportation Safety Board, February 14, 2012), http://www.ntsb.gov/doclib/reports/2012/RAR1201.pdf.

IV. History of Emergency Notification Systems (ENS)

A. In General

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

B. Various ENS Programs in the United States

    In 1983, the State of Texas established the first toll-free call-in
program in the United States that enabled the public to notify a State
call center by telephone of problems at the State's public highway-rail
grade crossings equipped with automated warning devices. As the current
Texas ENS program is organized today, after receiving such a call, the
Texas call center, operated by the Texas Department of Public Safety,
in turn notifies the railroad involved. The call-in system also
requires that a sign be posted at the highway-rail grade crossing with
the crossing's unique identifying number from the Crossing Inventory,
as well as a toll-free telephone number. Texas's call center has a
dedicated computer with a modified inventory database that facilitates
the identification of the relevant crossing and railroad. The Center
operator then calls the appropriate railroad and relays the report of
the problem. At last report, the Texas system handles more than 1,200
calls per month for the State's public crossings, even though only
those crossings equipped with active warning devices are equipped with
the signs containing the Center's toll-free telephone number. It should
be noted

that under this final rule, railroads using State programs for
notification of unsafe conditions at grade crossings, such as Texas's
program, may no longer comply with the regulation. However, a State
would be allowed to operate as a ``third-party telephone service'' as
described in the rule, as long as the program complies with all the
conditions specified.
    Following the successful establishment of this ENS program in
Texas, and in part at the urging of FRA and the NTSB, virtually all of
the Nation's major railroads have voluntarily adopted similar systems
for the majority of their highway-rail and pathway grade crossings,
sometimes including all grade crossings, i.e., systems not limited only
to public highway-rail grade crossings or only to those equipped with
active warning devices. Unfortunately, more than 72,000 public and
private highway-rail and pathway grade crossings belonging to the
Nation's short line and regional railroads are not included. Many of
these railroads do not have 24-hour operations and do not have the
resources to establish such a call-in program.
    The 1994 Rail-Highway Crossing Safety Action Plan Support Proposals
issued by DOT recommended an automated, computer-based system to
``receive, catalogue and forward telephone calls from the concerned''
public regarding signal malfunctions and other safety-related problems
at highway-rail grade crossings. Rail-Highway Crossing Safety Action
Plan Support Proposals, 17 (Washington, DC: FRA, June 13, 1994).
However, the automated system that was envisioned in 1994 was a type of
automated answering and message forwarding system that relied on the
caller to enter the required information. Once entered, this
information would then be forwarded to the appropriate railroad. Unlike
the automated answering system prescribed in this rule, the caller
would not have been directed to speak to a live operator. In FRA's
experience fully automated systems have proven to be unworkable,
whereas staffed systems have been successful.
    In 1994, Congress directed FRA to conduct pilot projects in at
least two States to demonstrate the efficiency of such ``emergency
notification system'' programs covering highway-rail grade crossings
and to report to Congress on the results of the pilot projects. Section
301, ``Emergency Notification of Grade Crossing Problems,'' of Public
Law 103-440, November 2, 1994 (108 Stat. 4626). Also, in 1996, Congress
appropriated funds for the development of software and hardware to
support the demonstration of a toll-free ENS to report emergencies and
other safety problems at crossings.
    Initially, FRA joined in a cooperative effort with the Texas
Department of Emergency Management to evaluate the Texas notification
system. Texas was designated one of the pilot States, and an extensive
array of software, hardware, and operating improvements was developed.
FRA prepared and implemented new software on an upgraded system in
1999. Based on comments and suggestions, further improvements were
implemented in 2001 when the Texas call center operation was
transferred to the Texas Department of Public Safety.
    This 2001 version of the software was modified for use by a ``9-1-
1'' center in Clinton County, Pennsylvania, with the participation of
eight short line railroads. A 30-month demonstration program was
initiated in November 2001. See Project Plan: 1-800 Toll-Free Emergency
Notification System for Shortline Railroad Highway-Rail Crossings in
the Commonwealth of Pennsylvania (Washington, DC: Federal Railroad
Administration, September 20, 2000), http://www.fra.dot.gov/downloads/safety/emergency_notification_system.pdf.
    In 2002, an agreement was reached with the Paducah & Louisville
Railway, Inc. (PAL) to conduct an additional pilot project (the third).
At the time PAL was a regional railroad with 24-hour operations and
approximately 400 grade crossings. FRA modified the program software to
accommodate the railroad's needs.
    As a result of these pilot programs, FRA continued to modify its
software for use by States and railroads. The software enables the
timely reporting of emergencies, malfunctions, and other unsafe
conditions at grade crossings. Call center operators can log the
reported problem, access the Crossing Inventory files to look up the
proper crossing number, and notify the correct railroad dispatch center
and other emergency responders. FRA makes this software freely
available to railroads and emergency response centers. Furthermore, FRA
strongly encourages railroads and States with ENS programs to keep
their crossing inventory information current, as required by Sec. 204
of the RSIA (codified at 49 U.S.C. 20160 and 21301(a), with respect to
railroads, and 23 U.S.C. 130, with respect to States). A key component
of an effective ENS is to be able to correctly and quickly identify the
crossing number upon receiving a report of an unsafe condition at a
crossing.

C. FRA's 2006 Report to Congress

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

V. Section-by-Section Analysis

Section 234.1 Scope

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

Section 234.3 Application and Responsibility for Compliance

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

    \2\ E.g., the proposed rule, defined ``[d]ispatching railroad''
to mean ``a railroad that dispatches or otherwise provides the
authority for the movement of one or more trains through a highway-
rail or pathway grade crossing.'' 76 FR 11992, 12009 (March 4,
2011).
---------------------------------------------------------------------------

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

Section 234.5 Definitions

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

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

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

Section 234.301 Definitions

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

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

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

    Section 205 of the RSIA does not define the word ``dispatches'' nor
does it limit the scope of this rule only to those railroads that have
a position of a dispatcher or have controlled trackage. So in
developing the final rule, FRA considered the plain meaning of the word
and the definition of ``dispatches'' in the final rule is consistent
with this plain meaning. The other commenter noted that smaller
railroads may be confused by the language in Sec.  234.305(a) of the
NPRM, and may interpret the language in the narrowest sense, meaning
that only railroads that ``dispatch'' trains using a dispatcher would
be considered a ``dispatching railroad,'' and required to comply with
Part 234. The final rule also defines ``dispatching railroad'' to mean,
``a railroad that dispatches or otherwise provides the authority for
the movement of one or more trains through a highway-rail or pathway
grade crossing.'' The definition makes clear that this rule applies to
both railroads that dispatch in the traditional sense, or by other
means control train movement through highway-rail or pathway grade
crossings. Furthermore, to clarify the meaning of the use of the verb
``to dispatch,'' in the final rule, FRA is adding the definition of the
phrase ``Dispatches a train'' or ``dispatches trains'' to mean
dispatches or otherwise provides the authority for the movement of the
train or trains through a highway-rail or pathway grade crossing.
    To properly receive notification of unsafe conditions at grade
crossings, a railroad or group of railroads is required to implement a
system that consists of multiple components. To refer to the entire set
of these various components, the term ``Emergency Notification System''
or its abbreviation (``ENS'') is used. In the final rule, FRA adopted
the definition of ``Emergency Notification System'' as proposed in the
NPRM, with the exception of minor typographical and stylistic changes.
As explained previously in the NPRM, although the word ``emergency'' is
part of the term ``Emergency Notification System,'' FRA does not intend
to imply that all reportable unsafe conditions are emergencies, i.e.,
conditions that create an imminent hazard of death or injury to an
individual or damage to property. In other words, some reportable
unsafe conditions are not emergencies. The term ``Emergency
Notification System'' is used in part because of its use in the 1994
legislation and its use colloquially by persons managing or working
with the already existing ENS programs.
    In the final rule, FRA is adding the term ``farm grade crossing''
to explain that farm grade crossings are a subset of highway-rail grade
crossings that are on private roadways and that are used for the
movement of farm motor vehicles, farm machinery, or livestock in
connection with agricultural pursuits, forestry, or other land-
productive purposes. In consideration of public comments on the number
of signs that would be required at crossings, the final rule in Sec.
234.311 permits farm grade crossings to have just one ENS sign. This
revision is discussed more thoroughly in the section-by-section
analysis of Sec.  234.311.

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

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

122 Stat. 4848, 4849-50.

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

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

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

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

changes. The first type of reportable unsafe condition at a highway-
rail grade crossing is a warning system malfunction at the crossing.
    The second type of reportable unsafe condition at a highway-rail
grade crossing is a disabled vehicle or other obstruction blocking a
railroad track at the crossing. As mentioned in Section II of this
preamble, a significant number of collisions between a train and a
vehicle have occurred at highway-rail grade crossings due to a vehicle
blocking the railroad tracks at the crossing, with many of these
collisions resulting in injuries and fatalities. While FRA acknowledges
that not all of these incidents may have been prevented by the presence
of an ENS, such a system increases the likelihood that the dispatching
railroad will learn of the disabled vehicle in time to alert the train
crew(s) prior to each train's arrival at the crossing, thus potentially
averting a collision and any resulting casualties. Other obstructions,
aside from a disabled vehicle, also may block the tracks at a crossing
and create an unsafe condition that needs to be reported to the
railroad. For instance, as a result of a severe storm, a large tree may
fall onto the tracks at a highway-rail grade crossing, and if a
railroad is not alerted about this unsafe condition, a train that is
authorized to operate through that crossing could collide with the
downed tree, thus potentially causing a derailment. Under Sec. 205 of
the RSIA, the second category of unsafe conditions is a disabled
vehicle blocking the tracks at a grade crossing. To the extent that
FRA's final rule requires more than Sec. 205 of the RSIA would have it
require, the agency relies on its general safety rulemaking authority.
    The third type of a reportable unsafe condition at a highway-rail
crossing is an obstruction to the view of a pedestrian or a vehicle
operator for a reasonable distance in either direction of a train's
approach to the crossing. FRA's Track Safety Standards provide that
``vegetation on railroad property which is on or immediately adjacent
to the roadbed shall be controlled so that it does not [o]bstruct
visibility of railroad signs and signals [a]t highway-rail grade
crossings.'' 49 CFR 213.7(b)(1) (Sec.  213.7(b)(1)). Section
234.303(c)(3) allows a member of the public to inform the railroad of
conditions at highway-rail grade crossings that may not fall under
Sec.  213.7(b)(1), but that, in the individual's opinion, present an
unsafe condition involving a sight obstruction at the crossing. In the
NPRM, FRA solicited comments regarding what is a ``reasonable
distance'' to determine whether an obstruction to a pedestrian or
vehicle operator's view of a train's approach to a highway-rail grade
crossing presents an unsafe condition at the grade crossing. Amtrak in
its comments noted that the regulation does not define ``reasonable
distance,'' which depends on the particular facts of the situation and
makes it a very subjective standard. AAR remarked that there can be
legitimate disagreements over whether an obstruction even poses an
unsafe condition. The AAJ commented that no one sight distance should
apply to all crossings, and thus, all reports of sight distance
obstruction should be investigated. Several of the comments, including
AAJ suggested using the Federal Highway Administration's Railroad-
Highway Grade Crossing Handbook to determine appropriate minimum sight
distances. After careful consideration, FRA is not qualifying the
meaning of ``reasonable'' in this final rule. Since a crossing user is
unlikely to have knowledge of this specific FRA regulation, the
individual will report an unsafe condition based on their personal
judgment and perspective of the situation, and the particular
conditions at the crossing at the time. What actions, if any, the
railroad must take in response to such reports is discussed in Sec.
234.305.
    The final type of reportable unsafe condition at a highway-rail
grade crossing is described in Sec.  234.303(c)(4) as any condition at
the crossing that may be considered unsafe and is not covered by Sec.
234.303(c)(1)-(3). This catch-all provision is intended to provide the
public with the opportunity to report other types of unsafe conditions
that are not covered by Sec.  234.303(c)(1)-(3). In the NPRM, FRA
explained that a downed or missing crossbuck sign illustrates the type
of condition at a highway-rail grade crossing that may be deemed unsafe
and, therefore, should be reported to the railroad, but does not fall
into one of the three other categories. The CPUC in its comments
provided a few other examples of unsafe conditions that do not fall
into one of the three other categories, such as ``rough pavement or
broken track paneling.'' These are merely some examples of the various
conditions that may be considered unsafe under this catch-all
provision.
    The four types of reportable unsafe conditions at pathway grade
crossings as opposed to highway-rail grade crossings are set forth in
Sec.  234.303(d). In the final rule, FRA is adopting this paragraph as
proposed in the NPRM, with the exception of typographical and stylistic
changes. The four types of reportable unsafe conditions at pathway
grade crossings are, essentially, the same as those for highway-rail
grade crossings, but, as detailed below, the four types of reportable
unsafe conditions at pathway grade crossings are not described in the
exact same words, and unlike the first type of report for a highway-
rail grade crossing, the first type of report for a pathway grade
crossing does not trigger the duty to address the report in the manner
prescribed by existing subpart C.
    The first type of reportable condition for a pathway grade crossing
is a failure of the active warning system at the pathway grade crossing
to perform as intended. Section 234.303(c)(1) does not use the term
``warning system malfunction'' to refer to a failure of an active
warning system at a pathway grade crossing because, as defined in Sec.
234.5, a ``warning system malfunction'' is an activation failure,
partial activation, or false activation of the active warning system at
a highway-rail grade crossing, not a pathway grade crossing. Further,
``activation failure,'' ``partial activation,'' and ``false
activation'' are all defined in Sec.  234.5 and only apply to highway-
rail grade crossings. In the final rule, FRA does not establish
specific standards regarding the maintenance and repair of active
warning systems at pathway grade crossings. However, the final rule
does require a railroad to provide the public with a means to report
when the active warning system at a pathway grade crossing through
which it dispatches a train is not performing as intended and is
creating an unsafe condition at the crossing.
    While the term ``failure of the active warning system at the
pathway grade crossing to perform as intended'' as used in Sec.
234.303(d)(1) is not specifically defined, FRA believes that the term
sufficiently addresses the scenarios in which an active warning system
at a pathway grade crossing malfunctions and poses a significant safety
risk to a pathway grade crossing user. The term includes, but is not
limited to, such problems as the failure of the device to activate as a
train approaches the pathway crossing, a false activation of the device
when no train is approaching the pathway crossing, or a burnt out light
on the device. Although FRA solicited comments regarding the types of
failures of an active warning system at a pathway grade crossing that
may differ from failures of active warning systems at highway-rail
grade crossings, there were no public comments received on this issue.
Additionally, FRA sought comments regarding how the maintenance and
repair of an active warning system at a pathway grade

crossing differ from the required maintenance and repair of an active
warning system at a highway-rail grade crossing. The ILCC replied that
there should be no difference in the testing, maintenance, and repair
of an active warning system whether it be at a highway-rail grade
crossing or a pathway grade crossing. In fact, FRA notes that pathway
grade crossing warning systems typically have different designs than
those of traditional grade crossing warning systems.
    The second type of reportable unsafe condition at a pathway grade
crossing is an obstruction blocking a railroad track at the crossing.
To avoid confusion, the term ``disabled vehicle'' is purposely omitted
from Sec.  234.303(d)(2), though it is used in Sec.  234.303(c)(2),
because, as defined in Sec.  234.301, a ``pathway grade crossing'' is,
among other things, dedicated for the use of nonvehicular traffic;
thus, by the definition, a vehicle should not be using a pathway grade
crossing. However, to ensure that all possible scenarios in which an
obstruction could be blocking the tracks at a pathway grade crossing,
including certain disabled vehicles that may be using the pathway (such
as all-terrain vehicles, golf carts, maintenance vehicles, or
snowmobiles), Sec.  234.303(d)(2) uses the broad term ``obstruction.''
    The third type of reportable unsafe condition at a pathway grade
crossing is an obstruction to the view of a pathway user for a
reasonable distance in either direction of a train's approach to the
crossing. See discussion above of Sec.  234.303(c)(3).
    The final type of reportable unsafe condition at a pathway grade
crossing is any condition at the crossing that may be considered unsafe
and is not covered by Sec.  234.303(d)(1)-(3). See discussion above of
Sec.  234.303(c)(4).
    FRA believes that there may be certain scenarios in which a caller
would be discouraged from reporting an unsafe condition at a grade
crossing because the use of a non-toll-free number would impose an
additional cost on the caller as opposed to if a toll-free number was
used. Yet, the requirement for the number to be toll-free may be overly
burdensome to a short line or other small railroad. To avoid these
types of situations, FRA adopts Sec.  234.303(e) in this final rule (as
proposed in the NPRM), which states that if a railroad classified by
the Surface Transportation Board (STB) as a Class II or Class III rail
carrier dispatches trains within an area in which the use of a non-
toll-free number would incur no additional fees for the caller than if
a toll-free number were used, then that railroad may use that non-toll-
free number to receive calls pursuant to Sec.  234.303(a) regarding
each grade crossing in that area.
    FRA adopts as paragraph (f) in this section, the text proposed as
paragraph (e) of Sec.  234.303 in the NPRM. Paragraph (f) provides that
if a report of an unsafe condition at a highway-rail or pathway grade
crossing was not made through the telephone service described in Sec.
234.303(a), then subpart E does not apply to the report. Subpart E only
sets forth the requirements for the establishment and use of an ENS
within the meaning of subpart E, and the response to a report of an
unsafe condition received through a required ENS. A report that is not
received through a required ENS falls outside the scope of the
requirements of subpart E and, therefore, does not trigger the duty to
comply with the requirements of subpart E.

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

    Section 234.305 addresses the actions that a railroad must take in
response to an ENS-generated report of an unsafe condition at a
highway-rail or pathway grade crossing. In the final rule, FRA adopts
the majority of this section as proposed in the NPRM. Specific changes
that were made in the final rule are explained in detail below.
    In response to the NPRM, the AAR commented that the words
``promptly'' and ``immediately'' are used in an inconsistent manner
throughout the proposed section with respect to the railroad's response
to reports of unsafe conditions at highway-rail and pathway grade
crossings. The term ``promptly'' is already used in subpart C, so in
the final rule, where it was appropriate, FRA replaced ``immediately''
with ``promptly'' to correspond with subpart C.
    Additionally, AAR recommended that FRA amend the language proposed
in the NPRM, requiring a railroad to ``immediately contact all trains
that are authorized to operate through the highway-rail grade crossing
[or pathway grade crossing] and warn the trains of the reported
malfunction [or failure].'' AAR suggested incorporating the phrase
``prior to the trains' arrival at the crossing,'' which is similar to
language already used in subpart C, Sec.  234.105 and Sec.  234.107. To
remain consistent with current regulations and to enhance clarity in
this final rule, FRA is changing the text from that proposed in the
NPRM to require in the final rule that a railroad promptly contact all
trains that are authorized to operate through the highway-rail or
pathway grade crossing, in an effort to notify the train crews of the
reported malfunction or failure prior to each train's arrival at the
crossing.
    Paragraph (a) of this section is the general rule on response to
ENS-generated credible reports of warning system malfunctions at
highway-rail grade crossings. If a railroad receives an ENS-generated
report of a warning system malfunction that is a credible report of
warning system malfunction and the railroad has maintenance
responsibility for the warning system at the highway-rail grade
crossing to which the report pertains, the railroad is required to take
the action required by subpart C. As defined in Sec.  234.5, a
``credible report of warning system malfunction'' is ``a report that
contains specific information regarding a malfunction of a highway-rail
grade crossing warning system at an identified highway-rail grade
crossing, supplied by a railroad employee, law enforcement officer,
highway traffic official, or other employee of a public agency acting
in an official capacity.'' If a report of a warning system malfunction
is not provided by one of the four specific types of people listed,
then the report is not a credible report of warning system malfunction
within the meaning of either subpart C or subpart E, and subpart C does
not require any remedial action in response to those reports. It should
be noted that the term ``credible report of warning system
malfunction'' only applies to highway-rail grade crossings and does not
include pathway grade crossings. Thus, for these technical reasons,
regardless of who reports a warning system malfunction at a pathway
grade crossing, the report is not considered a ``credible report of
warning system malfunction'' within the meaning of either subpart C or
subpart E.
    Several of the comments that FRA received in response to the NPRM
indicated that FRA's use of the term ``credible report of a warning
system malfunction'' may need some clarification. The term, as used in
part 234, is simply a technical term. ``Credible report of warning
system malfunction'' refers to reports of signal malfunctions by a
specific class of public officials and railroad personnel acting in an
official capacity. These regulations have been in existence for many
years. The use of the word ``credible'' in that term does not go to the
accuracy or truthfulness of the report; rather, the term simply denotes
the type of report the receipt of which is the precondition that
triggers the duty

for a railroad to perform certain actions, pursuant to subpart C. In
other words, when a credible report of warning system malfunction at a
highway-rail grade crossing is received from one of the four specific
types of people listed, as opposed to reports received from a member of
the general public, the railroad having maintenance responsibility for
the warning system must promptly take the actions prescribed by subpart
C. Just because a report originates from a member of the general public
and, therefore, is not classified as a ``credible report of warning
system malfunction'' as defined by Sec.  234.5, does not mean that the
report is any less accurate or truthful.
    In consideration of the many comments received on this issue, FRA
decided in the final rule to refrain from the use of the phrase ``not a
credible report,'' so as not, however inadvertently, to disparage or
undermine the legitimacy of reports that originate from the general
public. Instead, FRA created the new, defined term, ``public report of
warning system malfunction at a highway-rail grade crossing,'' which
means a report that contains specific information regarding a warning
system malfunction at a highway-rail grade crossing that is supplied to
a railroad via the ENS by a member of the public who does not belong to
one of the categories of individuals listed in the definition of
``Credible report of warning system malfunction'' in Sec.  234.5. In
other words, public report of warning system malfunction means a report
that contains specific information regarding a warning system
malfunction at a highway-rail grade crossing that is supplied to a
railroad via the ENS by someone who is not a railroad employee, law
enforcement officer, highway traffic official, or other employee of a
public agency acting in an official capacity. The term ``public report
of warning system malfunction at a highway-rail grade crossing'' only
applies to warning system malfunctions that occur at highway-rail grade
crossings. If a report is neither a ``credible report of warning system
malfunction at a highway-rail grade crossing'' nor a ``public report of
warning system malfunction at a highway-rail grade crossing,'' then it
is just referred to in the final rule as a ``report'' of another type
of unsafe condition, e.g., ``report of warning system failure at a
pathway grade crossing.''
    Paragraph (a) of Sec.  234.305 explains that if the report is a
credible report of warning system malfunction, but the railroad that
initially receives the report is not the railroad that has maintenance
responsibility for the warning system at the highway-rail grade
crossing to which the report pertains, that railroad is already
responsible for contacting the trains that are authorized to operate
through the highway-rail grade crossing and warn the trains of the
reported malfunction under subpart C. After warning the trains, the
railroad must then contact the railroad that has maintenance
responsibility for the warning system at the highway-rail grade
crossing, which will then be responsible for taking the appropriate
remedial action under subpart C. FRA recognizes that in some instances
the railroad that initially receives the report may not be the railroad
that has maintenance responsibility over the warning system at that
crossing. Therefore, to ensure that the responsibility to take the
appropriate remedial action as required by subpart C falls on the
appropriate railroad, Sec.  234.305(a)(2) requires the railroad with
maintenance responsibility to take the appropriate remedial action
under subpart C, except for promptly contacting the trains operating
through the crossing and the law enforcement agency with jurisdiction
for the crossing; these responsibilities remain with the dispatching
railroad.
    Paragraph (b) of Sec.  234.305 is the general rule on response to
an ENS-generated public report of a warning system malfunction at a
highway-rail grade crossing, and requires that railroads take certain
specified remedial action in response to such a report. In other words,
Sec.  234.305(b) addresses ENS-generated reports of warning system
malfunctions that do not fall within the amended definition of
``credible report of warning system malfunction'' in Sec.  234.5
because the report is made by someone who is not a railroad employee,
law enforcement officer, highway traffic official, or other employee of
a public agency acting in an official capacity. In particular, if a
railroad receives such a public report of a warning system malfunction
and that railroad has maintenance responsibility for the warning system
at the crossing, the railroad must promptly contact all trains that are
authorized to operate through the grade crossing about which the report
pertains, in an effort to notify the train crews of the reported
malfunction prior to each train's arrival at the crossing. The railroad
must then promptly contact the law enforcement agency that has
jurisdiction over the crossing and provide the necessary information
for the law enforcement agency to direct traffic or carry out other
activities to maintain safety at the grade crossing. Further, the
railroad must promptly investigate the report and determine the nature
of the malfunction and, if necessary, take appropriate action as
required by a provision of existing 49 CFR part 234, subpart D, i.e.,
Sec.  234.207(a), which requires that ``[w]hen any essential component
of a highway-rail grade crossing warning system fails to perform its
intended function, the cause shall be determined and the faulty
component adjusted, repaired, or replaced without undue delay.''
    If a railroad receives a public report of a warning system
malfunction and that railroad does not have maintenance responsibility
for the warning system at the highway-rail grade crossing, the railroad
must promptly contact the train crews of all trains that are authorized
to operate through the grade crossing to which the report pertains, in
an effort to notify the train crews of the reported malfunction prior
to each train's arrival at the crossing. The railroad must then
promptly contact the law enforcement agency that has jurisdiction over
the grade crossing and provide the necessary information for the law
enforcement agency to direct traffic or carry out other activities to
maintain safety at the grade crossing. The railroad must then promptly
contact the railroad that has maintenance responsibility for the
warning system and inform that railroad of the reported malfunction.
The railroad having maintenance responsibility must promptly
investigate the report, determine the nature of the malfunction, and
take the appropriate action as required by 49 CFR 234.207(a) if
necessary.
    Paragraph (c) of Sec.  234.305 is the general rule on response to a
report of a warning system failure at a pathway grade crossing. If the
dispatching railroad for the pathway crossing receives a report
pursuant to Sec.  234.303(c)(1) and that railroad also has maintenance
responsibility for the active warning system at the pathway grade
crossing, the railroad shall promptly contact all trains that are
authorized to operate through the pathway grade crossings to which the
report pertains, in an effort to notify the train crews of the reported
failure prior to each train's arrival at the crossing. The railroad
shall then promptly contact the law enforcement agency having
jurisdiction over the pathway grade crossing and provide the necessary
information to the law enforcement agency to direct traffic or carry
out other activities to maintain safety at the pathway grade crossing.
Finally, the railroad shall then promptly investigate

the report, determine the nature of the reported failure, and without
undue delay repair the active warning system if necessary.
    If the dispatching railroad receives a report of a warning system
failure at a pathway grade crossing and that dispatching railroad does
not have maintenance responsibility for the warning system at the
pathway grade crossing, the dispatching railroad must promptly contact
all trains that are authorized to operate through the pathway grade
crossing to which the report pertains, in an effort to notify the train
crews of the reported failure prior to each train's arrival at the
crossing. The dispatching railroad must then promptly contact the law
enforcement agency that has jurisdiction over the pathway grade
crossing and provide the necessary information for the law enforcement
agency to direct traffic or carry out other activities to maintain
safety at the pathway grade crossing. The dispatching railroad must
then promptly contact the railroad that has maintenance responsibility
for the warning system at the pathway grade crossing and inform that
railroad of the reported failure. The railroad having maintenance
responsibility shall then promptly investigate the report, determine
the nature of the reported failure, and without undue delay repair the
warning system if necessary.
    Paragraph (d) of Sec.  234.305 is the general rule on response to a
report of a disabled vehicle or other obstruction blocking a railroad
track at a highway-rail or pathway grade crossing, pursuant to Sec.
234.303(c)(3) or (d)(2), respectively. If the dispatching railroad
receives a report of a disabled vehicle or obstruction blocking a
railroad track at a grade crossing, and that railroad also has
maintenance responsibility for the crossing, the railroad must promptly
contact all trains that are authorized to operate through the grade
crossing to which the report pertains, in an effort to notify the train
crews of the reported disabled vehicle or obstruction prior to each
train's arrival at the crossing. The railroad must then contact the law
enforcement agency having jurisdiction over the grade crossing to
provide that agency with the information necessary to assist in the
removal of the disabled vehicle or other obstruction, or to carry out
other activities to maintain safety at the crossing. In the NPRM, FRA
solicited comments on whether to require the railroad that receives the
report (i.e., dispatching railroad) to contact the maintaining railroad
if the obstruction is anything other than a disabled vehicle, stating
that ``[t]he maintaining railroad would then be responsible for
contacting the law enforcement agency and any other entities to assist
in directing traffic (if necessary) and removing the obstruction.'' AAR
commented that the obstruction could be something beyond the power of
the maintaining railroad to address and that requiring the maintaining
railroad to be notified in such circumstances serves no purpose. FRA
disagrees. In the final rule, paragraph (d)(2) of this section requires
that, if the dispatching and maintaining railroad are not the same
entity, after the dispatching railroad promptly contacts the
appropriate trains and law enforcement agency, it must then promptly
contact the maintaining railroad to inform it of the obstruction
blocking the track. FRA has determined that the quickest way to contact
the law enforcement agency is to have the dispatching railroad make the
contact. Because the obstruction is blocking the railroad track it has
to be removed in order for train operations to be resumed, and this
action is the responsibility of the maintaining railroad. Once informed
of the obstruction, the maintaining railroad shall then promptly
investigate the report, determine the nature of the obstruction, and
without undue delay take the necessary action to have the obstruction
removed.
    Paragraph (e) of Sec.  234.305 is the special rule on contacting a
train that is not required to have communication equipment. Section
220.9 of FRA's regulations on railroad communications sets forth
communication equipment standards for trains. 49 CFR 220.9. These
standards vary according to specific criteria set forth in Sec.  220.9.
According to Sec.  220.9(b), no communication equipment is required on
a train if that train does not transport passengers or hazardous
material and does not engage in joint operations or operate at a speed
greater than 25 miles per hour. See 63 FR 47188 (Sept. 4, 1998); Sec.
220.9(b)(1)-(4). However, in subpart E, upon receipt of a credible
report of warning system malfunction at a highway-rail grade crossing,
a public report of warning system malfunction at a highway-rail grade
crossing, a report of warning system failure at a pathway grade
crossing, or a report of disabled vehicle or other obstruction blocking
a track, a railroad will be required to promptly contact all trains
authorized to operate through the highway-rail or pathway grade
crossing to which the report pertains, to notify the train crews of the
reported unsafe condition prior to each train's arrival at the
crossing. If that train is not required by Sec.  220.9 to have any
communications equipment, the railroad must contact that train by the
quickest means available. Currently, railroad employees are required by
49 CFR 220.13(a) to immediately report certain emergencies by the
quickest means available. To maintain consistency among FRA
regulations, Sec.  234.305(e) requires that the quickest means used to
contact a train upon receipt of a report of a warning system
malfunction, warning system failure, or disabled vehicle or other
obstruction blocking a track at the crossing is consistent with the
quickest means that an employee would use to report an emergency
pursuant to Sec.  220.13(a).
    Paragraph (f) of Sec.  234.305 is the general rule on response to a
report of an obstruction to the view of a pedestrian or a vehicle
operator for a reasonable distance in either direction of a train's
approach to the highway-rail or pathway grade crossing (i.e., visual
obstruction). When the dispatching railroad receives a report of a
visual obstruction and the railroad also has maintenance responsibility
for the highway-rail or pathway grade crossing, the railroad shall
timely investigate the report and remove the visual obstruction if it
is lawful and feasible to do so. If the dispatching railroad does not
have maintenance responsibility for the highway-rail or pathway grade
crossing, the dispatching railroad shall promptly contact the railroad
having maintenance responsibility for the highway-rail or pathway grade
crossing, which shall timely investigate the report and remove the
visual obstruction, if it is lawful and feasible to do so. FRA
recognizes that in certain instances it may not be possible to remove a
visual obstruction, such as a natural visual obstruction due to the
steepness of the road or path approaching the crossing or a visual
obstruction due to the curvature of the track, or it may not be lawful
to do so. Therefore, Sec.  234.305(f) imposes a duty on the maintaining
railroad to remove the visual obstruction only if it is lawful and
feasible to do so.
    In the NPRM, FRA solicited comments on what types of visual
obstructions are not feasible to remove. AAR responded that ``not all
obstructions are within the control of the railroads and can be
cleared.'' Other commenters expressed similar concerns, to include the
ILCC, which cited topographical features, appurtenances, and structures
required by local conditions, such as retaining walls, and drainage
structures, as types of obstructions that may not be feasible for the
railroad to correct or remove. FRA recognizes that not all obstructions
to view are feasible to correct, or within the legal right of the
railroad to do so.

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

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

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

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

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

    Section 234.307 addresses the option for a dispatching railroad to
use a third-party telephone service to receive reports concerning an
unsafe condition at a highway-rail or pathway grade crossing pursuant
to Sec.  234.303. This section also describes the duties of maintaining
railroads with respect to their use of a third-party telephone service
as permitted by Sec.  234.305(h)(2).
    In response to the NPRM, the Angels on Track Foundation objected to
the use of a third-party telephone service, asserting that it would
compromise safety because railroads would not be receiving calls
``directly.'' FRA does not believe that this method of receiving
reports of unsafe conditions at highway-rail and pathway grade
crossings would compromise safety. All of the Class I railroads
currently have telephone systems in place by which they receive reports
of unsafe conditions at highway-rail and pathway grade crossings. As a
result, Class I railroads are unlikely to employ a third-party
telephone service. Permitting the use of a third-party telephone
service provides smaller railroads with a more economical and less
burdensome option, without compromising safety. As previously stated in
the NPRM, FRA recognizes that many regional and short line railroads
may not have the capability and resources to set up and operate a 24-
hour system to receive and respond to reports of unsafe conditions at
highway-rail and pathway grade crossings. Indeed, requiring such a
system could divert limited resources from more vital safety projects.
The results of the pilot project that FRA conducted with eight short
line railroads in Pennsylvania from October 15, 2001 through May 31,
2003, proved to be extremely successful and demonstrated that a third-
party telephone service is a reasonable approach when considered from
both a safety and economic perspective.
    In the NPRM, FRA stated that for a railroad to ``directly'' receive
calls reporting unsafe conditions at a crossing as required by Sec.
234.303, one entity should be the maximum number of entities that may
exist between (1) a caller reporting an unsafe condition at a grade
crossing and (2) the railroad. FRA believes that allowing more than one
entity in between could potentially delay the railroad's receipt of the
report and therefore delay its response to the unsafe condition, to the
extent that the ENS would not be effective. On review of Sec.  234.307,
the BRS suggested in its comments that FRA revise Sec.  234.307 to
ensure that the third-party telephone service is the only entity
allowed between a caller reporting an unsafe condition at a grade
crossing and the railroad. In the final rule, FRA created a defined
term for ``third-party telephone service'' in Sec.  234.301, which
stipulates that the third-party telephone service is the only entity
between a caller who is reporting an unsafe condition at a highway-rail
or pathway grade crossing and the transmission of the report to the
dispatching railroad. The definition also stipulates that a third-party
telephone service that receives reports from a dispatching railroad, on
behalf of a maintaining railroad, is the only entity between the
receipt of the report and the transmission of the report to the
maintaining railroad. FRA also revised the language in Sec.  234.307 to
permit the third-party telephone service to utilize an automated
answering system, as defined in Sec.  234.301, to receive reports of
unsafe conditions at highway-rail or pathway grade crossings.
    Paragraphs (a) and (b) of Sec.  234.307 permit a dispatching
railroad and a maintaining railroad to use a third-party telephone
service to receive reports pursuant to Sec. Sec.  234.303 and
234.305(h)(2), respectively. FRA believes that it may be in the
railroad's interest to use a third-party telephone service that is in
the business of receiving and processing calls from the public or from
dispatching railroads because that is the third party telephone
service's specialty. However, even if the railroad uses a third-party
telephone service, the railroad ultimately remains responsible for
receiving the report initially received by the third party telephone
service, and the railroad is responsible for taking the appropriate
remedial action as required by Sec.  234.305 and complying with the
proper recordkeeping requirements in Sec.  234.313. The third-party
telephone service is merely an extension of the railroad.
    In response to the NPRM, several commenters suggested that the
third-party telephone service should perform the function of notifying
the train crews and public safety officials when it receives reports of
unsafe conditions at highway-rail and pathway grade crossings,
asserting that this would result in faster transmission of the
information to the appropriate parties. FRA disagrees. The dispatching
railroad is the only entity that has the authority to control train
movements through a crossing, and the dispatching railroad is the only
entity with the practical ability to notify train crews in the event of
an emergency or any other unsafe condition. Police do not dispatch or
otherwise authorize movement of trains. One of the only means available
to the police to warn a train of an emergency would be to flag the
train down with the use of fusees, which in most cases is neither
efficient nor practical when compared to the railroad's ability to
notify its train crews. Furthermore, to allow the third-party telephone
service to directly communicate with train crews, as some commenters
suggested, would in effect alter train movements and create a conflict
with other train movements being controlled by the dispatching
railroad. Third-party telephone services do not have the knowledge,
training, or authority to control train movements.
    With respect to dispatching railroads, the role of the third-party
telephone service is intended to be limited to receiving calls from the
public of an unsafe condition, recording the information, and relaying
that information to the dispatching railroad that has contracted for
the third-party

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

Section 234.309 ENS Signs in General

    Section 234.309 specifies the color, minimum content and size
requirements, and other aspects of the signs that Sec.  234.311
requires to be placed and maintained at highway-rail and pathway grade
crossings as part of an ENS. A minimum amount of information must be
displayed on the sign so that the unsafe condition may be properly
reported and remedied. Paragraph (a) of this section requires that if
the dispatching railroad and the maintaining railroad(s) are not the
same entity, the dispatching railroad for the crossing must provide to
the maintaining railroad the telephone number that is to be displayed
on the ENS sign at the crossing, not later than 180 calendar days
before the implementation of an ENS is required. In this final rule,
FRA is increasing the amount of time from 30 days as proposed to 180
days to provide the maintaining railroad with sufficient time to notify
the sign manufacturer of the phone number to be displayed on the signs,
to allow for the production of the signs, and then for the installation

of the signs at the crossings by the maintaining railroad.
    Paragraph (b) describes the minimum information that is to be
displayed on an ENS sign, which includes the following: the toll-free
number established to receive reports pursuant to Sec.  234.303(a) (or
non-toll-free number as provided for in Sec.  234.303(e)); an
explanation of the purpose of the sign (e.g., ``Report emergency or
problem to ------------''); and the U.S. DOT National Crossing
Inventory number assigned to the crossing.
    To maintain a certain amount of consistency among the signs so that
a grade crossing user may be able to easily identify and understand
them, paragraph (c) requires the signs to meet the following
requirements: measure at least 12 inches wide by 9 inches high; be
retroreflective; have legible text, i.e., lettering and numerals, with
a minimum character height of 1 inch for the information required in
paragraph (b) of this section; and the sign must have white text set on
a blue background with a white border, except that the Crossing
Inventory number may be black text set on a white rectangular
background.
    In the NPRM, FRA solicited comments regarding which standards and
guidance provided in the FHWA's MUTCD or Standard Highway Signs and
Markings book (SHSM) should be adopted in the final rule as the
requirements for the signs placed at crossings pursuant to Sec. Sec.
234.309 and 234.311. The majority of commenters supported using the
MUTCD as the standard sign design.
    The MUTCD defines the standards used by road managers nationwide to
install and maintain traffic control devices on all public streets,
highways, and bikeways, and on private roads open to public traffic.
The MUTCD is approved by the FHWA and recognized as the national
standard for traffic control on all public roads. It is incorporated by
reference into the Code of Federal Regulations at 23 CFR part 655.
    MUTCD specifications include the shapes, colors, and fonts used in
road markings and signs. In the United States, all traffic control
devices must generally conform to these standards. The manual is used
by State and local agencies as well as private construction firms to
ensure that the traffic control devices they use conform to the
national standard. While some State agencies have developed their own
sets of standards, including their own MUTCDs, these must substantially
conform to the Federal MUTCD.
    Section 8B.18 of the MUTCD \3\ provides both guidance and a
technical standard for emergency notification signs. Specifically, the
guidance states that--
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    \3\ Manual on Uniform Traffic Control Devices for Streets and
Highways, 762-63 (Washington DC: Federal Highway Administration,
December 2009).

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

Specifically, the standard includes the following--

     When Emergency Notification signs are used at a
highway-rail grade crossing, they shall, at a minimum, include the
U.S. DOT grade crossing inventory number and the emergency contact